Pubdate: Sat, 11 Feb 2017
Source: StarPhoenix, The (CN SN)
Copyright: 2017 The StarPhoenix
Author: Doug Cuthand


Back in the day, when an indigenous person committed a serious crime -
usually a murder or a sexual assault - elders and band leaders would
determine if the person was a threat to the community; if so, he or
she would be banished.

The safety and well-being of the band was paramount. This was a
serious decision because it almost always meant death for the offender.

Back then, people lived together for co-operation and protection from
wild animals and enemy tribes. The huge herds of buffalo were preyed
on by fearsome predators. Packs of buffalo wolves - larger than timber
wolves - followed the herds.

Lone predators, including cougars and the plains grizzly, were among
the apex killers on the plains. A lone, unarmed human's best hope was
to run like hell and find another band to live with.

Today, various First Nations are revisiting the practice of banishment
to protect the community and provide a safe place for members.

Lack of funding and population growth have left First Nations
communities unable to provide treatment for drug and alcohol addiction
and in some cases the problem is allowed to fester and grow.

First Nations populations now contain both on- and off-reserve band
members. In most cases in the south, over half the reserve population
now lives off the reserve. This creates a back door for the criminal
element. Gang members might move onto the reserve to lay low and avoid
rival gang members and the law.

Other criminals come to the reserve to sell drugs and party. This has
made some reserves unsafe and subject to violent extensions of urban
gangs that conduct home invasions, drug dealing and general

Because of their rural nature, the RCMP response time is often
delayed, allowing offenders to carry on with impunity.

Band councils have been looking at ways to address this situation, and
several have discussed banishment. Today, it's not the death sentence
it used to be, but it removes the offender from the community and
hopefully acts as a deterrent.

Banishment today is more of an inconvenience for the offender, cutting
off an escape hatch from the city.

Under the Indian Act, a non-band member can be charged with
trespassing and forced to leave a reserve.

This clause can be enforced by the RCMP or band police. The "problem"
lies in the removal of a registered member, who has a right to live on
the land.

The Beardy's First Nation has come up with an option. Chief Rick
Gamble, a former RCMP officer, has suggested presenting it to the
judge as an option in sentencing. That way, politicians can't be
accused of picking on anyone or unilaterally making the decision.

Offenders will be told to make use of drug or alcohol rehabilitation
available off the reserve. These people will not be allowed back onto
the reserve without proving they are drug- and alcohol-free and living
a crime-free quality of life.

Banishment raises interesting legal questions:

* Do First Nations have the jurisdiction to pass laws related to
the Criminal Code?

* Does the Charter of Rights and Freedoms play a role? It
contains mobility rights that allow Canadians the right to travel freely.

* Will banishment act as a deterrent, or will offenders just
stay in the city, alienated further? Will there be a backlash that
First Nations are off-loading their problems to other

The existing system of corrections obviously isn't working and we need
to examine all alternatives; banishment is one.
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