Examining Police Policies and Practices in Mi’kma’ki – Pathways to Positive Policing Relationships

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Examining Police Policies and Practices in Mi’kma’ki – Pathways to Positive Policing Relationships

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by ahnationtalk on August 6, 2020180 Views


Executive Summary

Indigenous peoples and their relationships with policing services have been the subject of many inquiries and commissions including: the Marshall Inquiry (1989), Aboriginal Justice Inquiry of Manitoba (1991), Royal Commission on Aboriginal Peoples (1996), Stonechild (2004), Ipperwash Inquiry (2007), Thunder Bay Police Services Board Investigation (2018) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019) and the Viens Commission (2019) to name only a few. All of these investigations point to serious systemic flaws and racial discrimination within the justice system overall and within policing services specifically.

In collaboration with the Mi’kmaw Legal Support Network and the Mi’kmaw Native Friendship Society this research involved community-engaged participatory action methodologies. This collaboration was designed to inform policy and transform policing practices to the benefit of Indigenous communities. The goal of the research is to directly benefit the safety and wellbeing of Indigenous women and girls by foregrounding the participants experiences and desired priorities and presenting them to the policy makers.

The project involved: forming a research team; a successful application to StFX research ethics board; a detailed literature and document review of previous studies; a mapping exercise of current policing arrangements, including Community Tripartite Agreements between First Nation Bands and RCMP and municipal police services; and a series of 15 interviews with key stakeholders and subject matter experts; and ten community-based knowledge gathering / sharing circles in Mi’kmaw communities across the province, on and off reserve, including Halifax.

Between June and December 2019, fifteen interviews were conducted in person and on the phone with  stakeholders and subject matter experts (front line service providers; political leaders including chiefs, band council and Mi’kmaw grand council members; Mi’kmaw, provincial and federal service providers, former and current Indigenous police and other enforcement agency officers; people involved in supporting the families of missing and murdered women and girls;  Nova Scotia Family Information Liaison Unit; health outreach providers; Mi’kmaw victims’ service personnel; Elizabeth Fry staff; former inmates; parole and probation officers and policing liaisons). The interviews were directed toward a] assessing current best practices in policing and community assets for policing, b] identifying challenge areas and resource gaps in policing services and practices, and c] tabulating Indigenous communities’ priorities for improving policing relationships, and d] illuminating concrete community-based solutions to reduce violence against women and girls.

Between August and December 2019, ten knowledge gathering / sharing circles were held. The sharing circles were held in locations across the province convenient to participants (two at the Mi’kmaw Friendship Centre Halifax, Membertou, two gatherings in Eskasoni, Wagmatcook, Paqtnkek, Sipekne’katik, Millbrook and We’koqma’q). The gatherings were designed to, a] ascertain community-based assets, b] identify gaps in services, and c] to generate community priorities for improved policing relationships on and off reserve in Nova Scotia. The sharing circle participants identified gaps and explored opportunities for culturally grounded best practices to reduce racism, sexism and discrimination in policing services. The sessions were audio-recorded with permission of the participants, to allow for accurate post-session analysis. Facilitation was provided as an in-kind contribution by MNFS and MLSN. All sessions were conducted with opening and closing ceremonies, smudging, prayer and feasting. Translation was provided by Mi’kmaw Legal Support Network when needed.

The questions asked in the interviews and sharing circles were generated with the Mi’kmaw Legal Support Network and the Mi’kmaw Friendship Centre in consultation with Elders and community advisory committee members. In circles, we generally asked:

  1. What are your experiences (positive and negative) with police services?
  2. What are the key challenges you would like addressed?
  3. What are the most important teachings we can share with Public Safety Canada to help them deliver culturally safe police services?

Every community in Mi’kma’ki, on or off reserve, is unique, and such diversity must be addressed when developing and implementing services for safety, security, redressing harms and protection. The demographic, geographic, political, economic, cultural and social realities of each of the 13 First Nation communities in Mi’kma’ki and the populations living in urban centres such as Halifax, impact the types of policing and services desired and required.

Our findings align with those of the Expert Panel on Policing in Indigenous Communities:

A comprehensive understanding of safety and well-being in Indigenous communities requires multi-dimensional thinking, including attention to social and cultural factors. This understanding provides an opportunity for policing approaches that reflect holistic views of safety and well-being that are already embedded in Indigenous cultures. Policing in Indigenous communities is embedded in a complex legal and policy context marked by a growing emphasis on Indigenous self-determination and the need to recognize Indigenous rights and laws. While efforts have been made to improve policing for Indigenous communities in Canada in recent decades, many continue to receive policing services that do not meet their safety and security needs.

In both Indigenous and non-Indigenous communities, the most promising ways to promote safety and well-being involve relationships among police, other service providers, and community members. Effective relationship-based approaches are community-led and provide opportunities for police to assist in mobilizing communities and to earn their trust. Opportunities for change begin with providing meaningful choices for policing arrangements that support self-determination. These choices require resources that allow for sustainability and that can be facilitated by systemic reforms aligned with the need for safety and well-being in Indigenous communities.Footnote 1

In both urban and reserve populations, trust was the most commonly uttered term in all of the sharing circles. There remains a profound mistrust of police services. The research team was struck by how many people have been impacted by patterns of tragedies within their immediate families. A significant number of the participants had family members who are missing or who have been murdered. Many of these participants expressed, in extraordinary detail, how they perceive police services to have failed to protect their family members and how they have failed to adequately investigate and resolve crimes against them. Dissatisfaction was common across age, gender, spiritual orientation, language, economic and political orientations. People are also concerned with the capacity of officers to cope with the lived realities of reserve life and that the current level of resources to collaboratively improve health and wellness are not sufficient to optimizing service delivery or promoting community justice initiatives.

Almost universally participants articulated having greater trust and better rapport with Indigenous officers whether they were Mi’kmaw or from another community. There was a strong sense that the nature of policing has changed over time and that there is a distance from the community policing of the past and people would like to see a return to community policing with additional services such as on call mental health navigators, safe spaces and supports for reporting crimes and complaints, greater transparency and communication, visible presence and attendance at community events, ride along and mentoring programs.

Community members want the police to work with the youth and schools more often to provide public safety training, suicide prevention and anti-drug awareness. The moose hunt camps started by one group of Mi’kmaw RCMP officers was a great success but the financial burden rests on band funds and does not resolve inequities. Band councils and service providers want better youth programming, greater cultural competency, better response times and more thorough investigations, and regular updates on investigations and they see this as a right. Communities clearly favour those officers who will put up wigwams and work with the kids.

Priorities for most communities include deep cultural preparation and training prior to coming to work in the First Nation. They want Mi’kmaw speaking officers who understand the social and systemic barriers their members face including poverty, substance misuse, intergenerational trauma, systemic discrimination, and interpersonal violence, as well as the many aspirations within the community for healing and wellbeing. They want officers to live in the community. They do not like it when officers treat policing as a “9-4 job, leave the community at the end of the day and forget about it. We have to live here.” In all of the sharing circles people expressed frustration at the transitory nature of policing. “Just as we get to know and trust someone, they are transferred.” Some bands are willing to provide housing for officers as part of the CTA agreements.

In addition to living on reserve, communities are interested in having officer orientation programs where new officers are mentored by well-liked officers who can introduce them to the community. Many people suggested having welcome ceremonies for officers and everyone agreed that police should go around the community to meet with and learn from the Elders who could help train them in culturally informed anti-bias ways.

Participants in this research discussed under protection and over policing and articulated experiences of systemic discrimination and racism through the topics of reporting, communication, case management, use of force, visibility and response timeliness and efficacy. Cultural competency training and indigenization are only partial remedies to these problems. The majority of participants would like to see a return to tribal policing provided it is well resourced.

Participants recognized serious structural obstacles impeding the implementation of the Marshall Inquiry, TRC and MMIW recommendations and the exercise of their treaty rights. These were identified as: a profound lack of knowledge regarding Indigenous treaty rights, failure to identify and respect the Mi’kmaw as a nation, and the denial by settlers of the legitimacy of Mi’kmaw governance and legal principles in the management their lands and resources. Mi’kmaw community criticisms pointed to insidious systemic discrimination. In terms of policy development, it is important to keep the historical consequences of colonization and the contextual circumstances of Indigenous resurgence and rights to self-determination front and centre, so that community engagement and collaboration will be respectful, meaningful and produce substantive, equalizing changes.

Together the TRC calls to action and the MMIW calls for justice and the Marshall Inquiry recommendations create a foundation upon which to build systemic change. There are many assets in Mi’kma’ki such as the Mi’kmaw Friendship Centre and Mi’kmaw Legal Support Networks and their networks of allies, experts and knowledge holders, for Public Safety to draw upon if they are committed to build collaborative relationships to encourage, sustain and foster honest and open dialogue. Police services in Mi’kma’ki need a major infusion of support and comprehensive collaboration in order to be able to provide sustainable, responsive, consistent and safe services for communities, offenders, victims and families, that are aligned with Mi’kmaw legal principles and Mi’kmaw governance. With the mandate of the Minister of Public Safety and Emergency Preparedness to co-develop with the Minister of Indigenous Services, a legislative framework for First Nations policing, which recognizes First Nations policing as an essential service, and work with interested communities to expand the number of communities served by First Nations policing, the systemic problems outlined by the participants of this research can be addressed and a decolonized police service can become reality in Mi’kma’ki.

Acknowledgements

Many thanks to Pam Glode Desrochers and staff (MFCS) and Paula Marshall and staff (MLSN) for their tremendous support and contributions to this work. We are grateful to all of the community members who participated and shared so thoughtfully and openly in our circles, the Elders for their wisdom and ceremonial teachings, the caterers for the beautiful sustenance, the translators and the support staff who helped make the sharing circles safe. Thanks to Kashya Young, Cheyla Rogers, Devann Sylvester, Scott Lekas, Tammy Williams and all of the people at Nova Scotia Native Women’s Association and Elizabeth Fry for the incredible assistance in bringing us together to hear the voices and learn from the experiences. Many thanks to all of the current and former police officers for their insights. Special thanks Don Clairmont for his ongoing inspiration and to Daniel Cunningham at Public Safety for his support. Thank you to StFX financial and research grants offices. Welalioq.

1. Introduction

Public Safety Canada’s Policy Development Contribution Program launched the “Examining Police Policies and Practices with Regards to Indigenous Peoples” research program in 2018, as part of Canada’s response to the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIWG). Daniel Cunningham, Analyst, Aboriginal Policing Policy Division of Public Safety Canada approached Dr. L. Jane McMillan, a faculty member of Saint Francis Xavier University, and Pam Glode-Desrochers, executive director of the Mi’kmaw Native Friendship Society (MNFS), Halifax, in the fall of 2018 to submit a proposal to conduct a review of the police policies and practices as they impact Indigenous peoples living on and off reserve in Nova Scotia. “The purpose of the review is to identify problematic police conduct which may take the form of racism, sexism, discrimination or other detrimental conduct with a view of identifying best practices to improve relations between police services and Indigenous peoples.”Footnote 2

Glode and McMillan contacted Paula Marshall, executive director of the Mi’kmaw Legal Support Network (MLSN), to join the team and to design the project.

MNFS executive Director Pam Glode-Desrochers and MLSN Executive Director Paula Marshall and L. Jane McMillan (StFX) have collaborated on a variety of policy impact studies, program evaluations, and knowledge mobilization activities in the past decade, including: Addressing Mi’kmaw Family Violence; An Evaluation of the Implementation and Efficacy of the Marshall Inquiry Recommendations; Urban Aboriginal Wellbeing, Wellness and Justice: A Mi’kmaw Native Friendship Centre Needs Assessment Study for Creating a Collaborative Indigenous Mental Resiliency, Addictions and Justice Strategy; and a number of Tripartite Forum funded projects related to by-law enforcement, translation services, addictions response strategies. Most recently we partnered on L’nuwey Tplutaqan, a SSHRC funded connections grant to bring multiple stakeholders together to discuss community priorities for research to direct the implementation of the Truth and Reconciliation Commission calls to action #42 and #50 on recognition and implementation of Indigenous justice systems and establishing Indigenous legal institutions. Our collective mandate (MLSN, MNFC, StFX) is to conduct collaborative research that enhances Indigenous research capacity and training and that will directly benefit Indigenous communities using participatory action and decolonizing methodologies.

Positive policing relations are vital to the communities we work with. Having witnessed first-hand the impacts of colonization, the intergenerational effects of residential school and child welfare policies, systemic discrimination and racism, Donald Marshall Junior’s wrongful conviction, and many incidents involving police in the contexts of criminal, civil, regulatory and treaty rights confrontations, we are well positioned to review police policies and practices. We participated in the Truth and Reconciliation Commission (TRC) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (MMIW) and our work is directly informed by those experiences and our efforts are geared to ensuring the recommendations of all Indigenous inquiries are implemented. Through our review, we offer community-based insights to improve relations between police services and Indigenous peoples and we identify concrete solutions for reducing violence against Indigenous peoples, men, women, girls, and 2SLGBTQQIA to carry forward the calls to justice of the MMIW and the calls to action of the TRC.

2. Methodology and Research Design

Indigenous peoples and their relationships with policing services have been the subject of many inquiries and commissions including: the Marshall Inquiry (1989), Aboriginal Justice Inquiry of Manitoba (1991), Royal Commission on Aboriginal Peoples (1996), Stonechild (2004), Ipperwash Inquiry (2007), Thunder Bay Police Services Board Investigation (2018) and the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019) and the Viens Commission (2019) to name only a few. All of these investigations point to serious systemic flaws and racial discrimination within the justice system overall and with policing specifically.

Social research designs and techniques that assure comprehensive and representational documentation, in particular, offer considerable promise, especially if these are informed by and embody Indigenous knowledge about how to engage in learning, to participate in conversations, to ask questions, and to record experiences. Working in partnership with the Mi’kmaw Legal Support Network and the Mi’kmaw Native Friendship Society, the Pathways to Positive Relationships Project (L. Jane McMillan project lead) examines policing policies and practices on and off reserve throughout Nova Scotia. The Mi’kmaq Legal Support Network (MLSN) is a stand-alone, non-corporate justice service provider that operates federally and provincially cost-shared court worker, customary law, victims’ services, and other access to justice programs, for Indigenous peoples throughout Nova Scotia. MLSN has offices in Eskasoni, Millbrook and the Halifax Regional Municipality. The needs of MLSN clients are diverse and services are provided to ensure Indigenous peoples receive equal treatment and are not discriminated against at any stage of contact with the Canadian justice system, as such, positive policing relationships and meaningful police participation are critical to the efficacy of MLSN’s program delivery.

The Mi’kmaw Native Friendship Society (MNFS) provides structured, social-based programming for the use and benefit of urban Indigenous peoples to promote the educational, cultural, and economic advancement of Indigenous peoples and works with government and other organizations to create mutual understanding and positive relationship between Indigenous peoples and others. MNFS facilitates inmate reintegration programs, community assisted parole hearings, victims’ services, early childhood education, housing, adult learning programs and a host of cultural services. The centre is based in Halifax, two blocks away from the Halifax Regional Police Headquarters.

In collaboration with the Mi’kmaw Legal Support Network and the Mi’kmaw Native Friendship Society this research involved community-engaged participatory action methodologies. This collaboration was designed to inform policy and transform policing practices to the benefit of Indigenous communities. The goal of the research is to directly benefit the safety and wellbeing of Indigenous women and girls by foregrounding the participants experiences and desired priorities and presenting them to the policy makers.

The project involved: forming a research team; a successful application to StFX research ethics board; a detailed literature and document review of previous studies; a mapping exercise of current policing arrangements, including Community Tripartite Agreements between First Nation Bands and RCMP and municipal police services; and a series of 10 interviews with key stakeholders and subject matter experts; and ten community-based knowledge gathering / sharing circles in Mi’kmaw communities across the province, on and off reserve, including Halifax. Originally eight knowledge gathering / sharing circles were planned, but in late November the team received requests to hold two more circles, one in We’koqma’q First Nation, in the aftermath of the murder of 22 year old Cassidy Bernard (2018) and a highly-publicized tracking of the police investigation and arrest a year later (2019). An additional circle with women members of the Friendship Centre community who provided additional insights on policing services within urban setting took place December 19, 2019. With an extension of the contribution agreement we were able to include these important engagement sessions in this report.

Between June and December 2019, fifteen interviews were conducted in person and on the phone with  stakeholders and subject matter experts (front line service providers; political leaders including chiefs, band council and Mi’kmaw grand council members; Mi’kmaw, provincial and federal service providers, former and current Indigenous police and other enforcement agency officers; people involved in supporting the families of missing and murdered women and girls;  Nova Scotia Family Information Liaison Unit; health outreach providers; Mi’kmaw victims’ service personnel; Elizabeth Fry staff; former inmates; parole and probation officers and policing liaisons). The interviews were directed toward a] assessing current best practices in policing and community assets for policing, b] identifying challenge areas and resource gaps in policing services and practices, and c] tabulating Indigenous communities’ priorities for improving policing relationships, and d] illuminating concrete community-based solutions to reduce violence against women and girls.

Between August and December 2019, ten knowledge gathering / sharing circles were held. The sharing circles were held in locations across the province convenient to participants (two at the Mi’kmaw Friendship Centre Halifax, Membertou, two gatherings in Eskasoni, Wagmatcook, Paqtnkek, Sipekne’katik, Millbrook and We’koqma’q). The gatherings were designed to a] ascertain community-based assets, b] identify gaps in services, and c] to generate community priorities for improved policing relationships on and off reserve in Nova Scotia. The sharing circle participants identified gaps and explored opportunities for culturally grounded best practices to reduce racism, sexism and discrimination in policing services. The sessions were audio-recorded with permission of the participants, to allow for accurate post-session analysis. Facilitation was provided as an in-kind contribution by MNFS and MLSN. All sessions were conducted with opening and closing ceremonies, smudging, prayer and feasting. Translation was provided by Mi’kmaw Legal Support Network when needed.

The questions asked in the interviews and sharing circles were generated with the Mi’kmaw Legal Support Network and the Mi’kmaw Friendship Centre in consultation with Elders and community advisory committee members. In circles, we generally asked:

  1. What are your experiences (positive and negative) with police services?
  2. What are the key challenges you would like addressed?
  3. What are the most important teachings we can share with Public Safety Canada to help them deliver culturally safe police services?

Sitting in circle is a ceremonial engagement that facilitates a non-hierarchical environment for research engagement. It is an honour to sit in circle and to witness the sharing that occurred. People generously gave their stories to this research report to help Public Safety improve policing relationships and it is a great honour and responsibility of the research team to carry these stories forward. The knowledge gathering events were inclusive and productive processes in which participants shared their general perspectives on policing relationships and their deeply personal experiences with police services in a variety of contexts.

Participants were identified by the project partners the Mi’kmaw Native Friendship Centre (MNFC) and Mi’kmaw Legal Support Network (MLSN) and with assistance from the Nova Scotia Native Women’s Association. Participants included invited community members, family members of missing and murdered Mi’kmaw people,  Elders, Indigenous services providers, band councils, police and enforcement officers, and members from Mi’kmaw organizations, such as  the Nova Scotia Native Women’s Association,  Mi’kmaw Women’s Leadership Network, Mi’kmaw Family Children Services, Seven Sparks Healing Path Program (offender reintegration), the Membertou Men’s Society, the Enhanced Child Family Initiative, Paqtnkek Sexual Violence Response Committee, Elizabeth Fry clients, and those working to address violence against women and girls.

Collectively the activities of this research design led to an overview of the history of policing, an up-to-date map of policing services and policies in place in Mi’kma’ki (Nova Scotia), an inventory of cultural safety training programs and an assessment of those programs, and narratives from approximately 150 Indigenous participants, the majority of whom are members of the Mi’kmaw nation, to help identify best practices and gaps, and to inform the development of tools and resources to address gaps in the delivery of culturally competent and safe police services. The research team is deeply grateful for the generosity and courage of each respondent.Footnote 3

3. A Short History of Policing in Mi’kma’ki Nova Scotia, Canada

In order to understand the current landscape of policing policies and practices as experienced by Mi’kmaw and other Indigenous, Inuit, and Métis peoples in Nova Scotia it is critical to examine the global and local impacts of colonization, systemic discrimination and racism on Indigenous peoples.Footnote 4 Indigenous policing, crime, victimization and incarceration have been well studied in the Royal Commission on the Donald Marshall Jr., Prosecution (1989), the Manitoba Justice Inquiry (1991) Royal Commission on Aboriginal Peoples (1996), the Truth and Reconciliation Commission (2015), the Thunder Bay Police Services Board Investigation (2018), the National Inquiry into Missing and Murdered Indigenous Women and Girls (2019), the Public Inquiry Commission on relations between Indigenous Peoples and certain public services in Quebec: listening, reconciliation and progress (2019), and the Expert Panel on Policing in Indigenous Communities’ Peace, Harmony and Wellbeing (2019). These and many other inquiries indicate that in order for Indigenous peoples to experience justice, we cannot ignore the colonial legacy. For the purposes of this report, this section provides a historical overview of pre-colonial and colonial relations in Mi’kma’ki to better understand the context of over-policing and under-protection that the participants of this study reported experiencing.

Pre-Confederation Policing

Indigenous peoples have lived in Mi’kma’ki, the territory now known as the Atlantic provinces, including Nova Scotia, for more than 14000 according to the current archaeological evidence gathered at Debert. The first peoples developed a sacred connection to their territories and its resources. Through their connections to the land they generated highly complex and innovative societies that had laws, culture, religion and governance. Customs and values that governed behaviour and interactions, enabling people to live, work and flourish as nations, were integrated into every facet of community life. When problems occurred, mechanisms were available for managing disputes, for reintegrating wrongdoers back into family and community, and for restoring harmed relations. Responsibility for maintaining peace was communal; everyone had a role to play in finding a resolution and facilitating reconciliation, communal survival depended upon it. Talking it out was a key strategy; every person choosing to participate had a voice. Elders and leaders provided guidance through teachings highlighting respectful relations. Spiritual sanctions and purification rituals helped heal rifts between individuals, families, and communities.Footnote 5

Prior to colonial domination Mi’kmaq peoples were well equipped and well adapted to their environment. In addition to their material culture and resource strategies, they had corresponding, culturally imbued ways of living with each other within their environments to ensure survival. Community cohesiveness and value sharing formed the basis for the translation of cultural teachings, through Mi’kmaq oral traditions. How to live right was first transmitted within Mi’kmaq families. Adults taught children rules and etiquette in the extended family household, which grandparents, and other members further reinforced. The central values, represented today as the ” seven scared teachings” reflect concepts of love, honesty, humility, respect, truth, patience and wisdom.Footnote 6 Teachings included protocols for showing children respect for their elders and how behave toward each other and the how to honour the world around them. The Mi’kmaq had ideas about what had to be done to keep the world in balance, and how to treat each other justly. Social norms in Mi’kmaq culture existed without the sustaining force of courts, police, or other such expressions of authority.Footnote 7

Peace and Friendship Treaties

Due to their geographic location, the Mi’kmaq have endured the longest period of colonization. Sustained contact with French and then English settlers started in the early 1600s. To quiet the disruption of settler incursion, the Mi’kmaq engaged in Peace and Friendship treaties with the British Crown in order to protect their sacred connections to their territories and its resources. The agreements were to ensure Indigenous nations were able to carry on their social organization and livelihoods unmolested. Actively resisting the expropriation of their land and settler interference in their affairs, they signed a chain of treaties with the British between 1725 and 1779, and throughout the process they emphasized that they were the first inhabitants and rightful owners of the land.Footnote 8 But the treaties altered long-standing Mi’kmaw dispute-management techniques. A clause in the 1726 treaty stated: “In case of any misunderstanding, Quarrel or Injury between the English and the Indians, no private Revenge shall be taken, but Application shall be made for redress according to his Majesty’s Laws.” The British assumed, when the Mi’kmaq signed treaties, that they would submit to a judicial process based on the British rule of law and punishment. To access justice, people would make complaints to the governor, the King’s representative and responsible for mediating disputes with the Mi’kmaq. In 1749, Edward Cornwallis, the governor of Nova Scotia and a man known for his brutality, opened a commission that made him, along with a council and an assembly, the lawmaker of the colony. In 1752, when the Crown signed another treaty with the Mi’kmaq, it stipulated that all disputes between Mi’kmaw and British settlers would be tried in “His Majesty’s Courts of Civil Judicature where the Indians shall have the same benefits, advantages and privileges as any other of His Majesty’s subjects.”Footnote 9 The Mi’kmaq, however, continued to resist British domination and, perhaps wisely, avoided the British courts as Scalping Proclamations offered that “a reward of ten Guineas be granted for every Indian Micmac (sic) taken or killed.”Footnote 10

By the time Christianity and alcohol were widely available in Mi’kmaq society, the nation was in crisis due to dramatic population declines resulting from “endemic diseases brought on by dietary changes following sixteenth century contact and trade with Europeans.”Footnote 11 Diseases contracted from Europeans and starvation undoubtedly distorted cultural practices. Rapid population decline dissolved kinship networks, disrupted political succession, interrupted seasonal mobility and food procurement and security strategies. Social order mechanisms were disrupted because knowledge bearers died prematurely without their teachings being passed on to, and upheld by, the next generations. The laws of the Mi’kmaq were breaking down as the settler society imposed their rules and social orders largely through the criminalization of Indigenous ways of life.

In the past two centuries, many Indigenous communities experienced excessive surveillance through high contact rates with federal Indian agents acting as police, in their monitoring of everyday acts of living as part of the ‘Indian civilization’ program. Emerging from the Royal Proclamation of 1763, the tenets of the civilizing mission were to protect from settlers, improve life conditions, and assimilate Indigenous peoples. The Royal Proclamation of 1763, stated:

It is just and reasonable, and essential to our interest, and the security of our colonies, that the several Nations or Tribes of Indians with whom we are connected, and who live under our Protection, should not be molested or disturbed in the Possession of such Parts of our Dominions and Territories as, not having been ceded to our purchased by Us, are reserved to them or any of them as their Hunting Grounds.Footnote 12

Nearly a hundred years after the signing of the first Peace and Friendship treaty, Judge T.C. Haliburton noted in 1823, that Mi’kmaw have “a code of traditionary and customary laws among themselves.”Footnote 13 Only two cases that did go before the bench in the 1800s brought about a ban on the sale of liquor to Mi’kmaw and protected their right to hunt porpoise. The Mi’kmaq who turned to the British justice system to protect their lands or interests, however, found little support. Noting that squatters had violated all of the reserves in Nova Scotia except two, H.W. Crawley, an Indian commissioner in Cape Breton in 1849, reported:

Under present circumstances no adequate protection can be obtained for the Indian property. It would be in vain to seek a verdict from any jury in this Island against the trespassers on the reserves; nor perhaps would a member of the Bar be found willingly and effectually to advocate the cause of the Indians, inasmuch as he would thereby injure his own prospects, by damaging his popularity.Footnote 14

Most British subjects thought Indigenous persons were incapable of giving evidence and swearing oaths in courts of law because they were not “civilized” and Christian. The Mi’kmaq were not allowed to swear oaths to their deities, and the courts made no allowances for their language or oral traditions. Mi’kmaw evidence, if translated at all, was generally reduced to a written English statement that could not be read to and verified by the witnesses. Mi’kmaq people were ordered to put their marks (signatures) on statements, regardless of the accuracy.

The Mi’kmaq were not passive, simply accepting the insufficiencies of the imposed legal system. On the contrary they resisted in a variety of ways, ranging from avoidance, to refusal to participate in legal cases, to active resistance using petitions and protest. For more than a century, the Mi’kmaq determinedly made petitions to Crown officials in England against British violation of the treaties, which the Mi’kmaw articulated as violations of sacred relationships. Petitions made in 1814, 1841, 1854, 1860 (and even in 1982) cited numerous infractions of human rights and instances of racial discrimination, theft of property, confiscation of land, and violations of persons. They also noted the extreme poverty and poor health in which the Mi’kmaq lived as a consequence of British colonization. The petitions largely went unanswered.Footnote 15

Policing to Assimilate in the Era of Confederation

As settler populations expanded, Indigenous populations in Canada were supposed to disappear. The machine of colonization, the laws, policies and experiments were largely predicated on this assumption. Eager to quickly get rid of the “Indian problem”, that is to get Indigenous peoples to be trained to be like White settlers, an Act to encourage the gradual civilization of the Indian Tribes in this Province, and to amend the Laws respecting Indians was given royal assent in 1857.  The act was intended to remove any legal distinctions between Indigenous peoples and other subjects of Her Majesty, facilitate the acquisition of property, and after a period of probation, to enfranchise those of “good moral character and free from debt…who shall no longer be deemed an Indian”.Footnote 16 The act defined who was an “Indian” and thus diminished any community-based authority for determining membership in the eyes of the state and substantively began the erasure of Indigenous diversity. In 1859, the Gradual Civilization Act was amended to include further “protections”. A section was added, which prohibited the sale, barter, exchange or giving to any, “Indian, man, woman or child any kind of spirituous liquors in any manner or way”, unless under a doctor’s orders.

The British North America Act in 1867 included the provision that, “Indians and land reserved for the Indians” would be under the legislative authority of the federal Parliament of Canada in Section 91(24). This marked the institutionalization of a jurisdictional divide between federal and provincial responsibilities, launching numerous loopholes in which accountability and responsibility vanished. This jurisdictional approach did not factor in any necessity to honour the peace and friendship treaty obligations by the Crown and settler society and treaty exclusion significantly disempowered Mi’kmaw peoples’ rights and freedoms. Section 91(24) significantly impacted the evolution and delivery of polices services to Indigenous peoples.

In 1869, Canada passed An Act for the Gradual Enfranchisement of Indians to impose a political structure that gave parliament the authority to remove decision-making abilities from Indigenous communities.Footnote 17 Governors could remove elected leaders without the consent of the community. The influence of pre-colonial traditional governing bodies, like the Mi’kmaq grand council, of Indigenous nations across the country were consequently destabilized and delegitimized by settler society. The scope of the authority of those enforcing legislation, and maintaining order increased and policing services moved from colonial appointed constabularies, local folks who acted in civilian seasonal watchmen roles, toward institutionalized, uniformed and armed quasi-military forces designed to quash rebellions and riots and to guard the properties of the state while patrolling the frontier. In western Canada, the North-West Mounted Police was created in 1873 as a paramilitary organization that served as “an extension of state authority onto a sparse civilian or Indigenous population.”

In 1876, the Department of the Interior of Canada consolidated laws related to Indians and expanded their compass by codifying Eurocentric and racialized attitudes of patrilineal descent and land-based economies focused on agriculture in the first Indian Act.  In the definition of terms under Section 12, “the term “person” means an individual other than an Indian, unless the context clearly requires another construction”.Footnote 18 Under this legislation the government determined who was an Indian and which Indians could become citizens. Any Indian woman marrying any other than an Indian or a non-treaty Indian ceased to be an Indian.Footnote 19

Law was the cutting edge of colonization, a rapidly imposed system of administration to promote assimilation affected every facet of the lives of Indigenous peoples and resulted in the disruption of cultural fabrics woven over thousands of years. Often framed as a benevolent administration of Indigenous peoples, the policies legislated discrimination from pre-confederation to its consolidation in the Indian Act 1876 and onward. In the early 1880s, several Acts to amend the first Indian Act, by the newly named Department of Indian Affairs, were given royal assent. These amendments added to the list of regulatory powers of the Governor in Council and included the ability to control Indigenous produce such as grain, root crops or other products.Footnote 20 Indian agents could prohibit the sale of and allow seizure of Indigenous produce and impose penalties for its purchase. Every Indian Commissioner, Assistant Indian Commissioner, Indian Superintendent, Indian Inspector or Indian Agents were formally declared as ex officio Justices of the Peace.Footnote 21

To further containment, a new section was added to the Act that affected Indigenous mobility and use of their traditional territories by regulating land use through the issuance of licenses given by the Superintendent General to band members. It became illegal for Indigenous peoples to hunt or live near their hunting grounds unless they were members of the local band and had received a license. The Superintendent General or any literate person he deputized had “the same powers as in the execution of criminal process” and could remove the party and extract any expenses for the removal from them.Footnote 22 This legislation led to the criminalization of Indigenous livelihoods and created the foundations of poverty and food insecurity present today.

In 1884, An Act for conferring certain privileges on the more advanced Bands of the Indians of Canada, with the view of training them for the exercise of municipal powers was given assent on April 19th. This was known as the Indian Advancement Act and set out in greater detail the elections and business structures of band councils. The councils were able to make certain by-laws, rules and regulations, which if approved and confirmed by the Superintendent General had force as law on reserve and any people living on reserve. The scope of by-laws included the religious denomination of the schools, health care, peace and order at assemblies, appointment of constables, repression of intemperance and profligacy, division of property and common use lands, maintenance of buildings, roads, water, woods and taxes. Any fines collected for by-law infractions were paid to the Indian agent, who acted also as treasurer, for the use of the band.

Additional amendments to the Act were designed to further repress Indigenous cultures by making the exercise of Indigenous legal traditions, such as those embedded in ceremonies, a criminal offence. Section 3 of An Act to Further Amend the Indian Act, 1880 reads:

Every Indian or other person who engages in or assists in celebrating the Indian festival known as the “Potlatch” or in the Indian dance… is guilt of a misdemeanor, and shall be liable to imprisonment…and any Indian or other person who encourages, directly or indirectly, an Indian or Indians to get up such a festival or dance, or to celebrate the same, or who shall insist in the celebration of the same is guilty of a like offence, and shall be liable to the same punishment.Footnote 23

The criminalization of Indigenous spirituality and healing ceremonies, combined with the effects of residential schools and other assimilation policies that undermined livelihoods, profoundly and negatively impacted Indigenous legal traditions and intergenerational cultural wellbeing.Footnote 24

As the Government of Canada proceeded with the settling of the country amendments were added to facilitate the removal of Indigenous peoples if it was perceived they were in the way of development of towns, roads and railways. The forced relocation of the Mi’kmaq occurred in many places throughout Nova Scotia including King’s Road in Sydney as ordered by the court in 1916, and areas of Halifax. Police carried out these relocations.

In the early 1900s Indian Agents provided annual reports that variously commented on the condition of the reserve, vital statistics, health, occupations, education, religion, characteristics and progress and temperance of morality. From the Indian agents in Mi’kmaq country, general remarks included statements such as “intemperance is held in check by the better meaning ones assisted by the fear of exposure by law.”Footnote 25 The law and its enforcers were not seen as allies of the Mi’kmaw, they were the enemy. The Nova Scotia Police, the provincial police body for the province, dissolved in 1932 when it was replaced by “H” Division of the Royal Canadian Mounted Police.Footnote 26

Consider for a moment the violence, the assault on identity that occurred through the criminalization of livelihoods, belief systems and kinship networks. Laws were imposed by outsiders that restricted mobility, inverted gender roles, diminished food security, interrupted cultural safety, outlawed ceremony, eroded knowledge systems, erased life and liberty and tore families apart. Indigenous peoples were being systematically erased from society, their presence denied, the extraordinary diversity, resilience and richness of their cultures muted and exoticized in the place of Canadian history and in the education of generations to come.

Colonial processes were justified and fortified through frontier myths, legal concepts such as terra nullius, doctrine of discovery, and extinguishment, all of which deflated Indigenous expressions of sovereignty and denied their human rights. Residential schools served as the primary settler apparatus for Indigenous child welfare in Canada.Footnote 27 In Nova Scotia, the Indian Residential School (IRS) at Shubenacadie opened under Deputy Minister of Indian Affairs Duncan Campbell Scott in 1929.Footnote 28 Scott held the position that there was an “Indian problem” and the only way to eradicate that problem was through aggressive assimilation. The schools are now recognized to be institutes of cultural genocide where physical abuse, torture, sexual violence and starvation were common. Framed as benevolent establishments of settler society, the schools worked to destroy kinship networks, interrupt transmission of Indigenous knowledge and shame cultural practices through vigorous religious proselytism. An Indian Act amendment in 1920 made attendance at state sponsored schools (day, residential, institutional) mandatory for those between 7 and 15 years.Footnote 29 More than 2000 Mi’kmaw children attended residential school by the time it closed in 1968.Footnote 30 Approximately 750 direct survivors and thousands of descendants are alive today. A 1951 amendment to the Indian Act Section 88 made it possible to enforce provincial child welfare legislation on reserve, resulting in a sharp national increase of Indigenous children in care and marking the beginning of what is known today as “the sixties scoop”.Footnote 31

Reservations, residential schools and the “sixties scoop” created to hasten assimilation, destroyed Indigenous families, cultural practices and languages and constituted the most heinous actions ever perpetrated in Canadian history.Footnote 32 Further consequences of colonization have variously disrupted gender and generational roles and women have become targets of violence, intimidation and neglect, even in communities where they once held considerable power.Footnote 33 Police forces in Canada were key agents executing these assimilation policies for the government by rounding up students to deliver to residential school, hunting and capturing those that escaped, serving as truant officers for day schools, and participating in child apprehensions for social services.Footnote 34  Contributors to this project recall traumatic witnessing of police actions that violently separated families and interfered with their livelihoods.Footnote 35

In the 1940s, Canada began experimenting with the concept of centralization, another assimilation process that was to have profound and lasting impacts on Mi’kmaw families throughout Nova Scotia. The federal government decided to centralize nineteen existing Mi’kmaw communities into two locations (Eskasoni and Sipenkne’katik). The rationale was administrative efficiency, cost savings and better monitoring and supervision partly motivated by a persistent belief that decades of government relief spending had been wasted and assimilation needed more efficient policing. Government reports advocated for amalgamation of reserves in central locations, a process that could be paid for by “the sale and disposal of all present reserves which are not suitable for settlement, or which are not occupied by Mi’kmaq”. In order to persuade families to move, Indian agents, threatened them with jail, fines, child apprehension, burning their churches, and tearing down their homes. They were promised new homes, schools, churches and jobs if they left. These promises we never realized. Kinship reckoning became distorted, overcrowding caused health and social problems, fear and mistrust of police increased, as did incarceration rates.

In the past, federal and provincial governments provided policing to First Nations without the involvement of Indigenous peoples. The historical narratives recounting the relationships between Indigenous peoples and policing services detail cultural, political, geographic, social, economic and legal challenges framed by colonialism and its consequences, namely systemic discrimination, racism, the enforcement of assimilation policies and the production of devastating inequality.

In the decades following confederation, Canada viewed policing in First Nations communities as its exclusive responsibility as aligned with Section 91(24).Footnote 36  In the last 50 plus years a shift in Canada’s position holds policing on reserve as a joint responsibility with the provinces.Footnote 37 The cost off-loading of federal responsibility to provide services and protections to Indigenous peoples onto provinces and municipalities was, and remains, a source of conflict. Jurisdictional confusion often resulted in uneven, inefficient, inconsistent and under resourced policing on and off reserve and it was the community members who suffered.

Band Constables

Prior to 1950 the RCMP provided policing services to all Indigenous and Inuit peoples. In the late 1960s, the RCMP announced its withdrawal from policing First Nations communities in Ontario and Quebec as band councils began managing their own affairs. Circular 34, published April 28, 1969 and later refined by Circular 55 outlined the band constable program under Indian and Northern Affairs Canada (INAC).  Under this program bands were permitted to hire their own First Nation constables, funded by INAC, and usually directed by the band council with guidance from the RCMP or other provincial police services.  Often working closely with a band’s chief and council, the special constables, were not restricted to policing band by-laws and could supplement, but not replace, senior police in the local area. Option 3b, Scout Venture and summer student initiatives were designed to increase the number of Indigenous peoples in police service. In many instances the band constable was considered a lesser rank than their non-Indigenous colleagues.

In Mi’kma’ki several bands appointed a constable and some communities shared a constable. Such appointments were given to trusted men who had good reputations within the communities, spoke the language and were willing to act as taxi driver or help people obtain groceries, counsel those grieving, give intoxicated people a safe ride home, and skilled at mediating disputes. In some communities, it was difficult to keep the band constable position filled. Communities were frequently without any local police service when appointment contracts expired and there were often delays in getting new agreements signed. The constables were often tasked with the unpopular job of dog control. People began to complain that crimes within communities are not being fully investigated.Footnote 38

Despite the presence of band constables, community members were increasingly having interactions with city police or RCMP through the enforcement of Indian Act prohibitions and other social control practices such as curfew laws which fined parents whose children were taken home by police if they were “caught” outside beyond 7:30 pm Monday to Friday.Footnote 39 The police conducted what the locals called ‘round-ups’ on the reserve where they picked up adults with unpaid fines, most frequently resulting from charges of public intoxication, and took them to the county jail. Mi’kmaw youth sometimes made a game of tormenting the police, often resulting in chases. There was an expectation of violence on being caught. When there was trouble between settlers and Mi’kmaw it was the Mi’kmaw person who got the blame. The settlers were sent home; the Mi’kmaw were sent to jail.

Mi’kmaw people did not experience equal representation in Nova Scotia’s economy, polity or education system. Instead, relations were marked by long-term marginalization and isolation, prejudice and discrimination – all symptoms of colonial mindsets that characterized the Mi’kmaw as a dangerous, lawless underclass. For example, Membertou and Sydney communities were physically segregated, culturally and socially alienated.Footnote 40 Once the laws prohibiting Indigenous peoples from purchasing liquor were repealed in the 1960s and around the same time they got the right to vote – and curfews were lifted, Mi’kmaw began frequenting the city bars and attending local dances. Still, socialization across social and racial boundaries was relatively rare.

Read More: https://www.publicsafety.gc.ca/cnt/rsrcs/pblctns/rvw-plc-prctcs-stf/index-en.aspx

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