The band council of Akwesasne – a territory that includes parts of Quebec, Ontario and New York state – is experimenting with what it is calling an indigenous court system. So far, this Mohawk community's plan seems to be a benign enough initiative, not treading on federal or provincial Canadian law.
Better yet, it shows no sign of emulating the sometimes toxic politics and histories of Kahnawake and Kanesatake, two other Mohawk communities in the region, not so long ago.
Since August 12, 32 bylaws on such matters as elections, property, sanitation, tobacco and wildlife have been dealt with in a court of Akwesasne's own making.
In what sense is this new arrangement specifically indigenous? The essence of the new code seems to be what the court and its law aren't, and on what it doesn't base itself, rather than being peculiarly First Nations.
In other words, the court will not be subordinate to anything else, in the sense that it isn't administering bylaws of federal or provincial laws and statutes. By contrast, municipal bylaws, usually dealing with much larger cities, towns and villages, derive all their power from provincial governments – often acting on a large scale. Akwesasne, on the other hand, has only 14,000 inhabitants, but it has drawn up a code of its own.
Akwesasne's court emphasizes restorative justice, in contrast to punishment. That seems to mean flexibility. As an example, if someone spray paints some slogan or other on a wall, and if the guilty party is good at some particular sport, then he might be sentenced to give lessons in that sport to other young people. There's no jail – either as a sentence or as a place to put people in.
It's encouraging that Akwesasne doesn't seem to be simply ignoring the federal government, as if it didn't exist. Ian McLeod, senior media relations adviser at the federal Department of Justice, has said that Ottawa and the governments of Ontario and Quebec have started talking about a "framework" to recognize the new arrangement, and about how federal and provincial courts will (or won't) recognize it, but "discussions are at the very early stages."
Some of this may sound just too easy, but it is an interesting idea. At the very least, it may help relieve the burden on the ordinary courts.