The following Justice summaries are provided by two Research Reports conducted with Dene Communities: The Dehcho community of Pehdzeh Ki First Nation (Wrigley Dene Band, Northwest Territories), and the Denesųłiné community of Sayisi Dene Nation (Chipewyan, Tadoule Lake, Manitoba). These reports were conducted within a specific community context, however, the findings of these reports can be used to interpret foundational principles that underlie Dene Justice Traditions and Protocols.
Pehdzeh Ki First Nation
- How did Dene Legal Systems function?
This Legal Summary is provided in the "Wrigley Dene Band Research Report," (Northwest Territories) prepared for the Royal Commission on Aboriginal Peoples, 1996:
“The traditional legal system ensured that people understood what the rules were and that they were expected to follow them; that is, socialization ensured that the rules were the base for the normative way of behaving. These rules were based on social, physical and spiritual realities and were the only means of survival. They were enforced through the absolute authority of the leader and through consensus of the adults in the camps. The rules were passed down through oral traditions, that is, story telling and advice. They were also reinforced by medicine people.”
“Those who violated traditional laws were severely punished. Temporary banishment from the camp for a period of time was a common punishment. Elders were the primary arbitrators of sentencing. Punishment such as banishment ensured acts of improper conduct were not repeated. There were other forms of punishment that the Dene practiced [.…] The Dene had a particular way of dealing with criminal activity. More serious crimes ‘required a gathering of the total local group which placed the individual in the middle of the circle and discussed ways of dealing with the matter so that the family and group harmony could be restored. Serious crimes included rape, adultery, divorce and impregnating a young unmarried woman.’ Justice circles comprised family members, leaders, elders, and the victim. The circle group decided sentencing and forms of punishment, which the people generally agreed on.”
“The Dene's Code of Ethics included giving thanks for all life; respect for others, treating guests with consideration; to have a balance in all things; knowing the positives and negatives of one's well-being and following the guidance of visions and dreams.”
- How can Dene Legal values be envisioned today?
5 years pre-dating the Gladue Decision, the Dehcho community of Pehdzeh Ki First Nation (Wrigley Dene Band) had already identified various rehabilitative justice alternatives which aligned with community-orientated justice traditions:
“Some respondents indicated that the Dene traditional justice system would be beneficial to the community:
‘Take the positives of the traditional and existing justice structure to develop our own justice system. The traditional laws would override the modern laws so it would be positive.’ (I54)
As an example of how it might work, an offender could be sent to a Dene cultural camp for a period of time (or banishment) instead of being sent down south to an institution, where they would be denied access to their cultural lifestyle. The youth in the community also agree that the traditional and modern justice system could be combined to suit and benefit our community. The youth discussed at length a number of ways of rehabilitation. The justice system was of particular concern to the youth because they feel the present structure does not treat them fairly. They are often sent away to stand trial in a youth court in another community and sentenced to a correctional centre for youth. The community has no say in what happens to them once they are in the court system. They want an alternative to the current justice system. In the future, they feel the traditional justice system based on elder participation should be integrated with the current structure. The elders are the repository of traditional knowledge in the community, and they should be consulted.”
While this is only one example, it is meant to illustrate the types of protocols and methods which may be relevant in identifying sentencing alternatives to incarceration.
Sayisi Dene Nation
- The Traditional Justice System
Aside from the specific rules surrounding hunting and trapping, there are very few rules regarding criminal behaviour. Due to the familial bonds of the camp and the communal conception of property, serious crimes were rare. Traditional values are all encompassing and allow little room for transgression. The well being of the community takes precedence over personal needs and the watchful eyes of family members are everywhere. Indeed, there is no better police officer than a mother. Elders, who reach decisions by consensus, establish the rules that families enforce and their decisions are based on a lifetime of knowledge. For those who break the rules, healing circles attempt to understand transgression, resolve disputes and find solutions. Although, reconciliatory measures are preferred over punishment, some crimes demand penalty. The most serious offences generally relate to hunting and are dealt with by the gravest of sentences: banishment. Minor offences, such as stealing of food by children, are dealt with simply by holding the guilty up to ridicule and shame. More serious offences, such as the theft of an animal from a trap line, require some deliberation with respect to the appropriate punishment. An offence is reported to the head of the camp, who may publicly scorn the offender, ask the offender to admit his guilt and compensate the victim of his misdeed. If the offender does not comply, a healing circle may be convened to deal with the situation. More serious punishments, such as social shunning, may be meted out to those who break hunting or trapping rules. Other hunters will thereafter refuse to hunt with a shamed hunter. Although merely socially ostracized, the isolation of a hunter is tantamount to banishment and could, if not rescinded, lead to starvation. Nonetheless, in the vast majority of incidences, there is eventually forgiveness and reconciliation. Although elders convene healing circles, each member involved has the opportunity to be heard. If found culpable, the offender must show contrition and give penance. This usually involves some form of restitution and the goal is always remediation and reconciliation.”
- A Paradigm Shift
“The Dene holistic view of the world as a balance between the natural, human, spiritual and animal worlds was transformed into one in which humans were at the mercy of one God as represented by the missionary priests. Each individual became responsible for his or her own salvation. A paradigm shift then occurred, from community life to individual responsibility. Residential schools took children away from their family and elders and placed them in a European education system, within which both the Dene language and cultural traditions were forbidden. At home, with the children gone, the role of women became marginalized and the importance of the male-dominated fur trade increased. Domestic responsibilities were further devalued due to the advent of the cash economy.”
Traditional Law to Colonial Law
“The women’s contribution to society came to have no market value and the men of the community were also losing traditional authority. In order to police dealings between the Dene and the traders, the Yabahtis would sometimes ask for the help of the Royal Canadian Mounted Police (RCMP) in resolving dispute. Soon Canadian law became Dene law. Systematically, the RCMP became an agent of political colonization. The Canadian government began to assign and regulate trap lines licenses. These assignments to individual trappers led to the break down of the extended family as the primary unit of economic production. Rather than a social right, game became personal property. Since far-off officials now controlled the hunt, mismanagement soon resulted. The Government of Manitoba [and the Government of Saskatchewan] severely restricted the movement of trappers. The unintended consequence of this action was the intensive over-harvest of small areas. Gameintensive over-harvest of small areas. Game was not given the opportunity and time to reproduce, and game populations collapsed.”
- Identifying Restorative Alternatives
The Sayisi Dene Nation identified Community Holistic Circle Healing as one program which demonstrates Dene legal principles regarding sentencing, and the responsibility of offenders to their victim and community.
The tenets of problem resolution observed by Community Holistic Circle Healing are:
- To bring it out into the open;
- To protect the victim, in such a way as to minimally disrupt the family and community functioning;
- To hold the person accountable for his/her behaviour;
- To give the opportunity for balance to be restored to all parties
While the Community Holistic Circle Healing has its origins in Anishinaabeg legal and healing principles, the Sayisi Dene Nation clearly identifies and sees cultural value in the CHCH approach. This speaks to the overarching, restorative, community-orientated principles carried throughout a multitude of Indigenous Legal traditions. While not every program, treatment facility, or approach to restoring wellbeing and addressing crime is universally accepted, common themes that emerge out of community-based alternative sanction programs reflect Dene guiding principles of Equality, Sharing, and Reciprocity.