Thursday Thinkpiece: Rudin on Accommodating Indigenous Cultural Practices in Court

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Indigenous People and the Criminal Justice System: A Practitioner’s Handbook

Author: Jonathan Rudin
Foreword: The Honorable Justice Harry S LaForme, Ontario Court of Appeal
General Editors: Brian H. Greenspan and Justice Vincenzo Rondinelli

ISBN: 978-1-77255-304-8
Publisher: Emond Publishing
Page Count: 305
Publication Date: August, 2018

Regular Price: $115
Series Subscription Price: $100

Excerpt: from Chapter 3 “Working with Indigenous People in the Legal Context”, section IV “Accommodation for Indigenous Cultural Practices in Court”

[Footnotes omitted. They can be found in the original in this PDF version.]

IV. Accommodation for Indigenous Cultural Practices in Court

Art Solomon (1914-1997) was an Ojibway Elder and one of the wisest people I have ever known. Although his formal education was limited, he received honorary Doctor of Laws degrees from Concordia University in Montreal and Laurentian University in Sudbury, and an Honorary Doctorate of Divinity degree from Queen’s University in Kingston. His citation from Concordia reads, in part:

Born in Killarney, Ontario, in 1913, Mr. Solomon attended Indian residential School, where he received a formal education of about Grade 6. He has been educated through his study of the traditional culture, spirituality and way of life of Native people; and through his work as a builder of roads, a miner, a lumberjack a carpenter, a craftsperson. He is a fourth degree Midewiwin, a great achievement within the spiritual teachings of the Ojibway people. He has shared his knowledge and experience freely and openly, with inspiring generosity of time and energy and resources. He has been a guide and organizer working with mining unions, Native craft guilds, the Canadian Alliance in Solidarity with Native People, the American Indian Movement, the Native Studies programme at Laurentian University, Native Brotherhoods and Sisterhoods in federal and provincial prisons, the World Council of Religion and Peace, the World Council of Indigenous Peoples and the federal and provincial governments.

Art Solomon continues to travel around the world, sharing his message with churches, Amnesty International, Project Ploughshares, the National Film Board and countless organizations and individuals, young and old, men and women, Native and non-Native. His life, his work and his teachings continue to inspire us all to think, to understand and to act.

Art began his work in the provincial and federal prisons working with incarcerated Indigenous men and women in the 1970s. At that time, the issue of the overrepresentation of Indigenous people in prison, while well understood within the community, was not seen as an issue by the corrections system or the justice system in general.

Art experienced a great deal of resistance when he tried to enter the jails to meet with inmates. For the most part, corrections officials did not recognize Aboriginal Elders as having any particular status within the system. To overcome this resistance, Art pointed out that other spiritual leaders such as priests and rabbis and imams had access to their people in jail, so he as an Aboriginal Elder should have the same rights. This argument was usually successful.

The difficulty with this line of reasoning was that it required Indigenous cultural practices to be explicitly linked to a Western analogue. Without a tie to a Western concept, those in positions of authority could not properly comprehend his request.

The Manitoba Aboriginal Justice Inquiry (AJI) discussed the role of Elders in volume one of their report:

To understand an Aboriginal community, one must appreciate first the role that the elders play within it. The prominent position accorded to elders is a striking feature of Aboriginal societies. They have been largely responsible for retaining much of the knowledge of Aboriginal cultural traditions about which we heard so much in the course of our hearings.

Elders—both men and women—are the “teachers” and, in some cases, are the “healers”—that is, the “medicine people”—of the tribe. The role of elders within Aboriginal communities sometimes varied, but generally consisted of helping the people, individually and collectively, to gain knowledge of the history, traditions, customs, values and beliefs of the tribe, and to assist them to maintain their well-being and good health. They were respected for their wisdom and for their experience, and for the fact that, having lived a long life, they were able to advise the people on what to do in difficult situations, as a result of that experience … .

Elders have long been considered the ones who bridge between the ancient traditions and beliefs of the people and the modern-day influences that come into play in the day-to-day lives of Aboriginal men and women. This was so even in past times when there were only Aboriginal people on this continent.

While Elders may perform different roles in different Indigenous nations, most nations have a particular place for Elders. What is clear from the brief discussion from the AJI, however, is that Elders really aren’t analogous to religious leaders as that term is understood in the West. The role of Elders and Indigenous practices are properly seen as “sui generis”—they are unique to Indigenous people.

The sui generis nature of Indigenous cultural practices and beliefs are not really understood in the dominant legal system, which continues continues to confer legitimacy on those practices only to the extent that analogies with current Western practices can be found. The requirement that requests for accommodation fit into a Western paradigm does violence to the Indigenous traditions.

Take, for example, the use of an eagle feather by an Indigenous person testifying in court. Using the eagle feather is usually justified by the courts as the Indigenous equivalent of swearing on a holy book or affirming. Some courts seek to have an eagle feather available for Indigenous witnesses on the basis that courts provide Bibles or Qurans for those of the Jewish, Christian, or Muslim faith. The analogy breaks down under even cursory examination.

Holy books are printed and are readily available—until recently, Bibles could be found in most hotel rooms and Qurans are often given away to those with an interest in reading it. Eagle feathers, of course, are in limited supply. One cannot just manufacture them or buy or sell them and hand them out to anyone who wants them. Because of their scarcity and their place in many Indigenous cultures, they are usually gifted or loaned sparingly, and only to those who are seen to deserve receiving the feathers.

There are often requirements of those who receive feathers in terms of maintaining and cleansing them. Recipients of eagle feathers are sometimes, but not always, expected to follow particular practices with respect to the feather. For example, some Elders do not believe that an eagle feather should be held by someone who has consumed intoxicants over a particular period (24, 48, or 72 hours). Where the eagle feather is contained in a feather box, those who may not be permitted to hold the feather because of their alcohol or drug consumption can touch the box while testifying. Of course, holding the feather box rather than the eagle feather is telling a court something about the person touching the box. In a way that is not possible when testifying after swearing on a holy book, a person touching the feather box rather than the feather is essentially giving evidence about his or her consumption of intoxicants.

In some cases, witnesses may seek to smudge before testifying in court. The smudging can take place outside of court but, if the person is in custody, it will generally have to take place in court. To accommodate such requests, smudging is also often analogized to swearing on the Bible or affirming. But as with the eagle feather, this analogy is inaccurate. In the court context, smudging is also sui generis.

Lisa Monchalin writes about smudging:

Four sacred medicines—tobacco, sweetgrass, sage, and cedar—are used in everyday life as well as in various ceremonies by numerous Indigenous peoples (and others). These medicines are typically use in smudging ceremonies. This ceremony is frequently referred to as a “smudge,” and it is commonly practised in Indigenous cultures to cleanse oneself and restore balance.

A smudge can take place at any time. Such as before sleep or after sleep, but it is also a protocol used before people gather. When used to begin a meeting of peoples, it signifies cleansing oneself so that one approaches with a humbled spirit and listens with an open heart. Smudging, then, involves the cleansing and purification of objects, oneself, or places. One or all of the four sacred medicines can be used to smudge … Pieces are taken from these bundles and put into a smudge bowl, which can be of clay, stone, or ceramic. Many people have also been using large abalone shells recently, although, in the past, only coastal peoples used these shells. The medicines are then burned in the containers. The smoke will rise up from the medicines, and a feather (typically an eagle or wild turkey feather) will be used to fan the smoke toward what is to be cleansed.

The smoke purifies and restores balance and drives away negative energies. One by one, people will rub their hands over the smoke, in an action similar to how we would wash our hands. Then, each person would cup her or his hands to catch the smoke, putting it over the head, ears, eyes, heart, and down the arms and legs, the small of the back, and the feet. Yet there is no right or wrong way to do this act of purification; rather, the intention behind the act is what is important. Once a smudge is completed, one becomes more grounded and back into a state of balance. Smudging a room or object also helps to purify it, to offer it protection, and to rid the area or object of any negative energy.

The teachings that animate the use of eagle feathers and smudging, as well as other Indigenous ceremonies and ceremonial items, are often unwritten and are instead held by Elders and knowledge keepers. Those who wish to engage in such ceremonies would do well to respectfully invite these knowledge holders to share the teachings and conduct the ceremonies. Such invitations can require certain protocols as well. For example, a common protocol in Anishinaabe communities is to offer tobacco in a small cloth tie, and these protocols often involve teachings about using your left hand to give the offer in a non-aggressive manner. The existence of such nuances and protocols necessitates care in engaging with Indigenous traditions to show proper respect.

The foregoing discussion is not intended to suggest that accommodation of Indigenous spiritual or cultural beliefs (the use of the eagle feather and smudging are but two of many) are inappropriate or improper in the court context. Rather, it is important for defence counsel, prosecutors, judges, and court personnel to appreciate that these practices do not necessarily have Western analogues and to rely on those analogues to allow the practices to be followed does a disservice to them. Where counsel or courts seek to accommodate these practices, it is important to spend some time learning about the specific practice in the particular context in which it is to be used. If that learning is done, misunderstandings can be avoided and other important learning opportunities can arise.