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Over incarceration of Indigenous peoples and the parallel child welfare crisis are major justice concerns across Canada, but Angelique EagleWoman, a visiting professor at the Mitchell Hamline School of Law in Minnesota, believes these issues can be stemmed through the establishment of Indigenous community courts.

EagleWoman, who became well known as the first Indigenous law dean in Canada when she was appointed to the Bora Laskin Faculty of Law at Lakehead University in 2016, visited the University of Windsor and the University of Ottawa’s Faculty of Law Oct. 3 and 4 to present recommendations for Indigenous community courts similar to the tribal courts which exist in the United States. Angelique EagleWoman, visiting professor at the Mitchell Hamline School of Law in Minnesota “Since 1934 tribal nations in the U.S. have adopted constitutions and most of those include provisions to have tribal courts,” said EagleWoman in an interview with The Lawyer’s Daily .

There are approximately 330 formal tribal courts operating in the United States, she explained, adding that expertise, training and support are available for First Nations in Canada that are looking to set up their own court systems or wanting to engage in conversations on justice.

“I believe strongly that we’re the same people; we’re just separated by political boundaries,” she noted.

In her presentation to the law schools, EagleWoman explained that the National American Indian Court Judges Association (NAICJA) and National Judicial College provide training and support to the tribal courts. Both Indigenous and non-Indigenous judges are involved and the courts “maintain law and order on reservations,” and handle civil and domestic matters.

EagleWoman said there’s a lens of systemic racism that needs to change in order to end the disparity in Canada’s justice system.

“There’s a normative system that’s Euro-Canadian that set up the justice system,” she said, adding that the system has “overt and unconscious” biases.

“Systemic racism is about seeing a different ethnicity as having particular characteristics. In this case, the discriminated people are Indigenous. The native characteristics cloud the ability of the Crown attorney or the sitting judge to see a human being standing in front of them,” she said, noting “tweaks” made to improve the system through restorative justice are “not working.”

“And that’s why I say the correct remedy is really Indigenous communities having their own courts because the systemic racism is too imbedded and there needs to be a retraining of how Indigenous people are viewed,” said EagleWoman, adding that she’s particularly concerned about the over incarceration issue because it leads to “destabilized” nations.

“It destabilizes women as the culture holders, women as the life bringers. And it keeps us in a cycle of oppression and poverty, on and on, when the women aren’t strong,” she explained.

EagleWoman’s recommendations are: that each First Nation should have the option of developing a court system or joining in a regional court system; that a transfer system be set up from provincial courts to Indigenous community courts for child welfare cases involving First Nations children; that federal and provincial judges be champions and allies to assist in the early stages of setting up the Indigenous court systems; and that these courts be the primary authority on hearing cases involving First Nations peoples.

The visiting professor has hope that change will come as she called the “ Truth and Reconciliation Commission (TRC) Calls to Action a paradigm shift that can’t be underestimated in Canada.”

Indigenous people and settlers are permanent neighbours, she explained, adding that the Calls to Action are a way forward in building a kinship relationship.

“Racism is learned; it can be unlearned. And as the Calls to Action are implemented, I do think that […]

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