“Blanketing”: Justice for First Nations People in Canada

By Su-taxwiye, Sarah Morales9

Introduction

As is well documented, “the justice system has failed … Aboriginal people on a massive scale.”10 Numerous reports11 have identified and repeated the fact that not only are Indigenous peoples overrepresented in the justice system, but that this system is itself rooted in systemic discrimination and in past and continuing colonial policies and structures such that the inequality between Aboriginal people and the total Canadian population is in some respects “getting worse, not better.”12 Over the past decades, realizing the truth of this statement has generated a search for collaborative responses to the issue of achieving justice for Indigenous peoples by First Nations organizations and governments for collaborative responses to the issue of achieving justice for Indigenous peoples.13 In January 2021, the Minister of Justice and Attorney General of Canada was mandated with developing, in consultation and cooperation with Indigenous partners, provinces and territories, an Indigenous justice strategy to address systemic discrimination and the overrepresentation of Indigenous peoples in the justice system. But given the inability of past governments and institutions to reform the Canadian justice system in a way that results in true and long-lasting change for Indigenous Peoples,14 one must seriously turn their mind to the question, what could make an Indigenous justice strategy different?

As I have researched, read, and contemplated all the good work that has been done in the numerous previous reports, inquiries and papers on this topic, I have realized that maybe the challenge is not about implementing the stated recommendations15 but rather how we define the concept of justice and how we envision what it is meant to achieve. Arguably, the structure of the current justice system does not reflect Indigenous views of how justice should be administered. In considering an Indigenous justice strategy, the term “justice” must reflect the ways of life and knowing, ways of relating, involuntary obligations, and laws and legal orders of Indigenous Peoples. It is only through developing such a recognition and understanding that Canada will equip itself to appropriately respond to the needs and desires of Indigenous peoples today.

“Indigenous laws and legal orders are distinct and numerous, specific to societies, cultures, geographies, histories, etc.”16 Accordingly, to understand such laws and legal orders, one needs to consider them within the societal context in which they arise.17 As Napoleon describes:

In each Indigenous society, citizens organized in various ways were, and are, responsible for the maintenance of their legal order. For example, in Cree society, there are four decision-making groups, and their role and authority depend on the type of legal decision required: the family, medicine people, elders, and the whole community. Another example is Gitxsan society where law operates through the matrilineal kinship units of extended families and overarching clans.18

Therefore, when the federal government considers how to develop an Indigenous justice strategy that can respond to how concepts of justice impact decision-making, it must take an Indigenous legal order specific approach—one that is grounded in the society, norms and practices of the various Indigenous Nations in Canada,19 recognizing that law necessarily changes and adapts to the different needs of each generation.20 With this guiding principle in mind, this paper will define and examine the concept of justice with a focus on First Nations, in particular, the legal tradition of the Coast Salish People.21

This paper will begin by considering the concept of justice in the Coast Salish legal tradition. Using the practice of blanketing,22 it will illustrate that within the Coast Salish world, justice prioritizes prevention and healing, and requires a holistic approach. The next section of the paper will examine what a holistic approach to justice, focused equally on prevention and healing, could look like for Coast Salish peoples. Finally, I conclude with some recommendations for developing and implementing an Indigenous justice strategy from a First Nations perspective.

The concept of justice in the Coast Salish world

First Nations Peoples in Canada, for instance the Coast Salish, have long expressed that the current form and function of the criminal justice system does not meet the needs of their citizens, and is contrary to their Indigenous legal orders and dispute resolution processes. As stated by Michael Carey:

During my experience working with the Snuneymuxw community, the following represents some of the common feelings expressed by youth, adults, Elders, political leaders and heads of families about the current form and function of the criminal justice system: It lacks their involvement; it’s a foreign system imposed on their people; lacks cultural relevance to their community; it's a system whose structure and values directly oppose Snuneymuxw beliefs and practices when correcting behaviour and resolving conflict; and the courts punish and jail people where Snuneymuxw values trying to heal the individual.23

In turning my mind toward a concept of justice defined by Coast Salish legal thought, I was reminded of a beautiful story shared with me by the late Cowichan Elder Wes Modeste. In one of my visits with him, he told me of the last time he witnessed a traditional process being used to restore harmony between individuals, families and communities following an interpersonal dispute. He shared:

In the late 70s or 80s there was an Indian dance in Nanaimo and a couple of Cowichan boys went outside of the longhouse to have a smoke or something. On their way back in, some of the members of the Nanaimo community beat them up. I’m not sure exactly how things evolved after they were beat up. I guess maybe they went inside, with bloodied faces or maybe they just left the longhouse.

Not long after, the families from Nanaimo came down to Cowichan for another Indian dance – the whole family. And they hired a speaker, and they called witnesses – many, many witnesses.

And they called forward that young fellow that got beat up – they publicly called him forward … [t]hey publicly apologized to that young fellow for the conduct of their children for beating him up like they did in Nanaimo. That is a public form of apology.

And the family put a blanket in his hand and money. The parents of the boys who beat him up put money in his hand and the rest of the family followed (and it is a very large family).

…

But how things unfolded after that, after all the money was given, the speaker got up and concluded the work. But after the speaker said that, witness after witness came up to respond. They said, “We will do the honourable things to restore your honour.” And they scolded the young people who had beat up the boys from Cowichan. They said, “See all your family here? They are all here because of your wrongdoing. And you see all your family members following with money? You are now responsible to repay it. So anytime any of your family has work, you bring money to help.”24

Although there is much to unpack in this story about harms, obligations, responsibilities, punishments, etc., for the purposes of this paper and its focus on justice, I want to focus on the significance of blanketing.25 Blankets are objects of extraordinary complexity and significance in the Coast Salish legal tradition.26 Wearing or being gifted a blanket during ceremony is transformative, “moving the individual from the domain of the mundane to a sacred space.”27 The blanket also serves as a protection for people by offering emotional strength during times of great change, vulnerability or significance, such as receiving an ancestral name or participating in a marriage.28 A blanket can also raise the recipient’s prestige in the community.29 When gifted, they represent the respect that an individual, family or community is bestowing on an individual.30 The late Stz’uminus Elder Willie Seymour said the following, when asked about the significance of blanketing ceremonies:

… they would blanket the ones that are victims. You shield them from the hurt. You shield them from the harm and at the same time you are embracing them back their strength. You are picking up their soul and putting it back into their being. So, it serves more than one purpose.31

These beautiful and complex descriptions of the significance of blanketing, and blanketing ceremonies, can help us deepen our understanding of justice from a Coast Salish legal perspective.

In contrast to the punitive measures of the current justice system, a justice system created to mirror the practice of blanketing would require “a (re)imagining of what justice, safety, and protection means.”32 In the story above, Elder Modeste not only gives insight into what is required to repair the harm done to the individual(s), families and communities involved, but also what is required to restore the honour of the ones who have caused harm. By examining this story, one can see the operationalization of snuw’uyulh (law),33 and the guiding legal principles of sts’lhnuts’amat (relationality), si’emstuhw(respect), hw’uyuwhulh(support), sh-tiiwun (responsibility), and nu stl’I ch (love).34

sts’lhnuts’amat (relationality)

The legal principle of sts’lhnuts’amat (relationality) is prominent in the story. Although, from a Western legal perspective one might take the position that the harms caused were the fault and responsibility of the young men from Nanaimo, the entire family from Nanaimo came to Cowichan to remedy the harm and repair the relationships. This demonstrates that the breach of interpersonal obligations extends beyond the individual offender to the entire family. I have seen this principle illustrated in many different Coast Salish stories,35 and it reflects the notion that when a member of one’s family causes a harm, the entire family is implicated, both in terms of their obligations to the individual(s) who suffered the harm and in terms of their obligations to teach the individual(s) who caused the harm. With this in mind, there is also an acknowledgement that when harm is caused to an individual, the effects of that harm may bring harm and suffering to their family as well. Individuals are never viewed in isolation of the relationships that sustain them.36 Accordingly, the remedying of breaches of legal obligations involves a wide web of relationships in the Coast Salish world.

si’emstuhw (respect)

The legal principle of si’emstuhw (respect) is also illustrated in Elder Modeste’s story. The legal process to remedy the harm was carried out in a manner that bestowed respect on both the victims and the offenders. As was described above, the victim was blanketed in a public ceremony. Bestowing the gift of a blanket to the victim served to acknowledge the harms caused, restore his dignity, and shield him from further harm. By doing this in a public ceremony, after the calling of witnesses, it created a system of accountability whereby many individuals both knew of the hurt caused but also of the promises going forward. Respect was also shown to the offenders. They were accompanied by their families so that they did not have to stand alone, and a speaker was hired on their behalf to speak for them in the public ceremony. As the witnesses explained, the entire offenders’ families followed the young men and put money in the hands of the victim.37 As explained by those called to witness, the family members were doing so not only to acknowledge and remedy the harms caused, but also to restore the honour of their family members. The families of the offenders did not want their loved ones to have the shame of their wrongs following them and affecting their lives.

hw’uyuwhulh (support)

One can also see the legal principle of hw’uyulwhulh (support) demonstrated in Elder Modeste’s story. Although support is also illustrated in the explanations of sts’lhnuts’amat (relationality) and si’emstuhw (respect) described above, the hiring of a speaker is another way of providing support. Hiring speakers is a widely practiced tradition in the Coast Salish world. As explained by Stó:lō elder Shirley Julian, “At feasts there would be special people who were speakers, real good speakers, one from each place that knew the background and the history and the culture.”38 These speakers undergo training in language and community history, and accordingly, they possess qualities that lend them authority and cause others to call on them for help or to represent their family during ceremonies, disputes, gatherings, etc.39 When hired, they help to maintain the legitimacy of the legal processes and to ensure that the feelings of those involved do not interfere in the restoration or maintenance of harmony among the individuals and communities involved.40

sh-tiiwun (responsibility)

sh-tiiwun (responsibility) is also present in the blanketing story. As described in the section about sts’lhnuts’amat (relationality), the entire family (most likely including extended family) participated in the blanketing ceremony to remedy the harms caused by their relations. In the Coast Salish legal tradition, responsibility rests with the entire kinship network and not just the individuals involved. As such, the extended families of the boys would not only have been present for the blanketing ceremony, but they also would have played an important role in the planning and execution of the ceremony.41

The young men responsible for causing the harms also have to demonstrate responsibility for the harms that they caused. After the ceremony was completed, the witnesses came forward and scolded the young men. They spoke to them not only of the harms they caused to the injured young man from Cowichan, but also of the harms they caused to their families and community. As such, they told them that they would be responsible to repay their family members for the cost of returning their honour. In speaking to others about this concept of repayment, and in deepening my understanding about the Coast Salish legal tradition in general, I have come to understand this as something more than just balancing a scale. Yes, the young men have a responsibility to support their family members, just as their family members supported them, but by instructing them to participate in the “work” (customary practices and ceremonies) of their relatives, they are ensuring that the young men have ample opportunity to deepen their understanding of snuw’uyulh. Not only are they responsible for financially supporting their family members in the work to be undertaken, but by participating in the work they will gain a greater understanding of and appreciation for the legal principles and obligations that flow from our snuw’uyulh.

nu stl’I ch (love)

Finally, the legal principle of nu stl’I ch (love) is woven throughout Elder Modeste’s story. It illustrates that the principle of love is foundational to family and community relationships. Blanketing, as a legal response to harm, recognizes that we all share struggles and that those struggles need to be considered in decision-making processes. This does not mean that we look past the harms incurred, but rather that we look for a compassionate response, one that lifts up the souls of all those involved and restores harmony to the community.

Blanketing as a holistic approach to justice

What blanketing helps to illustrate is that the concept of justice is both backward looking and forward looking, takes place at both the individual and community level, and incorporates the legal principles relied upon by the individual First Nation to remedy harm and restore harmony within their community. As opposed to a focus on punishment, it encompasses principles that are relevant not only to healing, but also to the prevention of harm. This holistic approach to social wellness and individual and community healing is still relevant for First Nations people today.

Therefore, in thinking about a path forward, we must ask ourselves: what policies are needed to care for and support First Nations people in a way that creates real positive changes for First Nations people in terms of prevention and healing?42 In other words, where do opportunities exist for us as a collective to “blanket” individuals, such that it reduces their interactions with the justice system, either initially or subsequently? As stated above, blanketing not only occurs when harm has been done, but also to show respect and provide protection during any significant event in an individual’s life.

Health as an act of blanketing

Throughout Canada, First Nations people and communities “face unacceptable health disparities.”43 These disparities are closely tied to the legacy of colonialism and systemic racism. Accordingly, First Nations peoples “are more likely than other Canadians to experience persistent poverty, food insecurity and barriers to housing and education—key contributors to chronic illnesses and other health challenges.”44

Not only do First Nations people face barriers in accessing equitable health services, they also experience racism in health systems. More often than not, these two experiences are linked. As found in “In Plain Sight,” a report examining Indigenous-specific racism and discrimination in B.C. health care, “racism limits access to medical treatment and negatively affects the health and wellness of Indigenous peoples.”45 In a summary of that report, the researchers found that:

These realities need to be seriously considered in creating an Indigenous justice strategy because the intersection between health, especially mental health, and criminal justice is well known. In a B.C. case study, researchers found that the “synergistic relationship between drug use and poverty” is related to frequent police encounters.47 As such, one “cannot define or understand police effectiveness without considering whole-of-system effectiveness, including an examination of the health, social, and criminal justice systems and their interrelatedness.”48

Housing as an act of blanketing

The failure of government to provide safe, healthy and accessible housing for First Nations people has been well documented for decades.49 Not only are First Nations peoples overrepresented in the population experiencing homelessness, but they are also disproportionately unsheltered and living in encampments.50 In her report that examines federal obligations to encampment residents, Van Wagner summarized the 2018 and 2021 statistics on homelessness and Indigenous Peoples:

The last federal point-in-time count of homelessness in Canada found Indigenous people were significantly overrepresented. Indigenous people make up 5% of the population but made up 30% of respondents in the 2018 count. This is consistent with past counts, which ranged between 29% and 37%. Indigenous overrepresentation in the homeless population is even more striking when broken down by gender. In Winnipeg, 80% of women experiencing homelessness were Indigenous. In Vancouver, 45% of women experiencing homelessness were Indigenous. Indigenous women are 15 times more likely to use a shelter than non-Indigenous women, they remain overrepresented in domestic violence shelters, they are six times more likely to be the victims of sexual assault than Indigenous men, and they are more likely to experience post-traumatic stress disorder.51

Similar to health, factors leading to Indigenous homelessness are intersectional and rooted in the legacy of colonial policies and their ensuing systemic barriers, “including but not limited to land dispossession, residential schools, loss of language, criminalization, removal of children to foster care, broken treaty promises, and discrimination in employment and housing.”52 As such, scholars have advocated for a holistic approach to addressing homelessness for Indigenous peoples that “reconstructs the links between the individual, family, community and Aboriginal Nation.”53

The significance of this holistic approach becomes even more important when one considers the linkages between homelessness and crime. “Homelessness can be both a cause and a consequence of involvement with the justice system.”54 Studies have found that “[i]ndividuals commit more offences after becoming homeless than before and … incarceration contributes to homelessness through the destabilization of housing, unemployment, and the erosion of human rights.”55 As such, housing security is one way to blanket First Nations people by helping to restore their dignity and shielding them from further harm.

Education as an act of blanketing

Systemic racism and socio-economic disadvantages make First Nations people more vulnerable to the criminal justice system. Research has illustrated that Indigenous peoples have been consistently disadvantaged in the capitalist system.56 Indigenous peoples face lower levels of education and higher rates of unemployment than the non-Indigenous population. This combined with fundamental socio-economic disadvantages and stigmas against Indigenous people may constrain Indigenous peoples’ opportunities for legitimate employment to provide the basic needs of life for themselves and their families.57 This inability to meet the basic needs of life may lead to a greater propensity for crime.58 This is not to suggest that all Indigenous peoples experience this stress, nor that all Indigenous peoples “are pushed toward a life of crime through their experience of strain; however, it is one possible explanation for their over-representation in crime statistics and justice system involvement.”59 It is also telling that patterns of education levels and unemployment among First Nations peoples are mirrored in offender data: “adult aboriginal offenders are generally younger, have less education, and are more likely to be unemployed than are non-aboriginal offenders.”60 Arguably, the economic and social problems faced by these offenders due to their disadvantaged socio-economic statuses are major influences on their involvement with the criminal justice system. This signals to the transformative potential of education for First Nations people.

How could education then serve as a tool for blanketing Indigenous peoples? Studies have shown that the most effective solutions to crime are upstream prevention, not increased policing, use of courts, or corrections.61 This could mean investing in preschool and other early childhood education programs, school curricula reform, life skills programs, vocational training, etc.

In turning our minds toward a holistic approach to justice, we must fight against the silo effect that occurs when providing services to First Nations men, women and gender-diverse people. Like the Coast Salish practice of blanketing, we must look at First Nations people in their entirety, recognizing their individuality and unique needs and circumstances, encased in a web of relationships, and accompanying obligations. As such, we must approach the work of blanketing them, or conferring justice upon them, in way that does not cause them to have to “navigate a fragmented system built around a variety of actors responsible for different parts of the care pathway.”62 An individual should not have to seek out the threads of their blanket and attempt to weave it together, it should be wrapped around them in its completed form, with a pattern that reflects their unique needs and responsibilities.

Recognizing jurisdiction as a path forward

As illustrated by this paper, Indigenous legal traditions are imperative to creating and maintaining a system of justice for First Nations Peoples in Canada. As Linda Robyn and Thom Alcoze have written:

… [b]efore government intrusion, native life, culture, environment, relationship to the land, and justice systems (i.e., peacemaking) functioned as a whole to the social structure and enhanced survival in their environment.63

Accordingly,

… changes in spiritual, environmental, and other subsystems that reverberate negatively backward through the whole of indigenous culture. When an entire culture and way of life is taken away from a group of people and is replaced with a new system, everything collapses.64

Michael Carey explains:

It’s this disequilibrium and collapse brought about through the imposition of Western justice, which provides an historical and generational basis for why justice currently isn’t working for indigenous peoples. This also supports arguments for why indigenous peoples can not just simply conform, adapt and assimilate to the Canadian justice system.65

As stated at the outset of this paper, conversations around Indigenous criminal justice reform have been going on for decades, but the reality is that the “system is too large, too cumbersome, and too entrenched to ever change.”66 What is needed is a justice strategy that empowers First Nations Peoples to define justice according to their own laws and legal orders and to support them in developing systems and processes that both prevent harm and facilitate healing. Similar to a blanketing ceremony, these systems and processes must be able to respond to the unique needs of each individual, taking into account their gender, identity, life history and experiences, relationships, etc. at all significant stages of their life, not just after they have come into contact with the justice system.

It is only through greater recognition and tangible support for the implementation of Indigenous self-determination in the justice system that we will see First Nations peoples’ souls picked up off the ground and shielded from further harm.