The rule of law is ‘racist’ says Mohawk law professor Beverly Jacobs

(Beverly Jacobs receiving the Order of Canada award from Governor General Julie Payette in 2018. Photo: APTN file)

As she prepared to leave for a “historical” meeting between Kanien’kehà:ka (Mohawk) and hereditary chiefs of the Wet’suwet’en Nation, Beverly Jacobs told APTN News what goes through her mind when politicians invoke the rule of law.

“In my opinion, it’s very racist and very disrespectful to use that concept of the rule of law and following the rule of law. It’s Canadian law when they’re talking about it that way,” she said.

“It’s their law that created the Indian Act – one of the most racist pieces of legislation that exists in the world. It’s their law that’s established the genocidal policies on Indigenous people.”

She used child welfare law and criminal law as an example.

In those cases, Indigenous people are over-represented in prisons and Indigenous children are apprehended into foster care more often than non-Indigenous.

Canada’s correctional investigator reported in January that 30 per cent of inmates in federal prisons are First Nations, Métis, or Inuit. The number rose to 42 per cent for Indigenous women.

In January 2016, the Canadian Human Rights Tribunal ruled that the federal government discriminated against kids by underfunding the child welfare system on-reserve and in the Yukon.

The tribunal awarded $40,000 in damages to kids and some family members harmed by the system in September 2019 and ruled that Canada’s discriminatory policies were “reckless and willful.”

Canada’s lawyers have asked for a judicial review of that ruling.

The tribunal has given parties until the end of February to come up with a plan to identify and compensate eligible children and their families.

“Really? Are we going to follow that rule of law?” asked Jacobs, an assistant law professor at University of Windsor and former president of Native Women’s Association of Canada (NWAC) where she was one of the people responsible for kickstarting the Sisters in Spirit program.

“That’s what we’re trying to fight. That’s what we’re trying to address in all of the commissions. All of the inquiries that are occurring have said that Canadian law is the source of genocide of Indigenous peoples. So if that’s what they’re invoking – and they’re invoking a police state – it’s violent. It’s inappropriate. It’s not addressing the true understanding and relationship as governments. They continue to treat our people as inferior and that we don’t have laws.”

Jacobs’s career-long fight for Indigenous rights earned her an induction into the Order of Canada in 2018. In 2016, she received the Franco-German Prize for Human Rights and the Rule of Law for her work on behalf of missing and murdered Indigenous women and girls in Canada.

Her students are engaging in land-based learning at the site formerly known as Camp Ipperwash. An Anishinaabe man, Dudley George, was shot by an Ontario Provincial Police (OPP) officer there during a peaceful protest in 1995.

The students are working toward implementing the recommendations of the Ipperwash Inquiry.

Her students are also going to Kanesatake Mohawk Territory to visit the site of 1990 Oka Crisis.

Jacobs said, in her opinion, the rule of law is racist against Indigenous peoples.

“That’s how they’ve based everything against our people. They use colonial law to try to erase us as a people. That’s their rule of law.”

(The house of commons. Photo: APTN file.)

Education the way forward

Liberal and Conservative MPs confronted each other on how to address demonstrations that blocked traffic, occupied ministers’ offices, and cancelled thousands of trains across Canada.

But they agreed on one thing.

“Democracy and the rule of law are fundamental pillars of our country, and it’s time they are enforced,” said outgoing Tory leader Andrew Scheer on Feb.14.

“We are a country that recognizes the right to protest, but we are a country of the rule of law,” Prime Minister Justin Trudeau stated shortly after.

Despite criticizing this talk, Jacobs said she sees a clear path forward. It begins with education.

“These are issues that we talk about every time we have a class. These are all with first year law students who are basically hearing for the first time about the truth: about history, about law, about how colonial law has been a tool of oppression and racism and erasure and genocide of our people,” she said.

“Colonial education system is failing and has failed society because they’re not teaching the true history. That, to me, is where racism comes. It’s taught. It’s generational.”

Jacobs argued the change needs to begin in kindergarten, that citizens should not be learning Indigenous histories for the first time in law school.

“I really believe that minds can shift and change.”

Read more:

‘We’re doing something really wrong:’ Advocates react to rising rates of Indigenous people in Canada’s prisons

‘Systemic negligence’: Indigenous Services unclear on number of First Nations kids apprehended into care

These debates aren’t just happening in the halls on Parliament Hill. A group of counter-protesters showed up to a rail blockade near Edmonton on Wednesday. They confronted the people blocking trains and dismantled the blockade.

Charlie Angus, NDP MP for Timmins-James Bay in Ontario, called it “vigilante action” in a debate the next day.

Conservative leader hopeful Peter MacKay tweeted he was “glad to see a couple Albertans with a pickup truck” come and dismantle the blockade. He deleted the tweet soon after.

“It is really upsetting,” Jacobs said about rising racial tension in the country.

“It’s taken me a few days to think about that and to think about the negativity and the hate and the racism. At first I was thinking how debilitating it can be because it’s so violent. Racism and discrimination and hatred and all of that is just so violent.”

Despite the standoffs, she offered a message of peace and coexistence. But this has to be based on respect for Indigenous laws, she said.

For her, this starts with Kaswentha: the Two Row Wampum Treaty. This was one of the earliest treaties made between Europeans and the Haudenosaunee (Iroquois). OPP got a lesson on this when they visited the Tyendinaga rail demonstration.

“The original agreement between us as sovereign nations was that we would respect each other’s laws,” said Jacobs.

“There’s three basic principles of the Two Row, of Kaswentha. There’s peace, respect, and friendship. It’s very basic principles of a healthy relationship.”

Those principles haven’t been upheld, Jacobs said, but they can be in the future.

“If we talk about Indigenous rule of law, we’re talking about our relationship to mother earth. We’re talking about our ceremonies. We’re talking about our governance systems. We’re talking about our respect of mother earth and natural law – and it’s a whole different worldview about our understanding of our relationship.”

She invoked unconditional love, compassion, and the Haudenosaunee Great Law of Peace.

“I would rather have a system of laws based on peace, respect, and kindness and love and compassion and our relationship to the natural world. To me, that’s more safe than anything.”

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3 thoughts on “The rule of law is ‘racist’ says Mohawk law professor Beverly Jacobs

  1. Très éclairant article qui démontre bien que Droit et
    Justice ne sont pas toujours alignés. On peut même dire que le rappel récent
    des chefs héréditaires dans le dossier CGL nous révèle brusquement que le Canada
    est un État de droit injuste à l’égard de ses peuples autochtones.

    Le déséquilibre entre Droit et Justice est si manifeste que
    nous avons soudainement, en tant que pays, atteint le point de non-retour au
    statut quo de nos cadres juridiques.

    Autrement dit, il est temps de dire non à la simple
    réconciliation de convenance, de lancer la refonte de nombreuses lois
    dépassées, trop teintées de colonialisme et de créer de nouvelles lois et ententes.
    La “vraie” réconciliation commence par des actions qui ramènent plus
    de justice et d’égalité dans le vivre-ensemble.

    Comment la Couronne, l’État canadien va-t-il concilier sa
    propre souveraineté avec celles respectives de tous les États de droit que sont
    aussi nos Premières nations?

    Il n’est pas trop tard pour le Canada d’être le pays qu’il
    aurait pu être.

    Nos étudiants en droit ont du pain sur la planche! Mais j’ai
    confiance qu’ils seront à la hauteur du défi.

  2. Jacobs comments on the higher proportion of native to others incarcerated in prisons as an example or ‘racist’ laws. I would explore the role that alcoholism and foetal alcoholism plays in native communities as factors leading to higher incarceration rates and societal dysfunction as compared to the non native population.

    The idea that groups of a few hundred people constitute a ‘nation’ each having its own governance model with its own set of laws does not strike me as being practical enough to effectively to counter the massive effect of her view of ‘colonial’ law as represented by Canada. I think natives need an organizarion that has the ability to speak for all of them in a binding fashion on a set of issues to which they can generally agree. Perhaps a larger, coordinated body could better resolve such commonly shared issues.

    Further, I think a natural interface between native and non native governments would be for natives to have a dedicated group of MP’s proportional to their population in government specifically to represent them across the set of interests and values that they deem desirable.

  3. straight talk
    Sheer you lost the election your own do not want someone who spouts racial divide in our home and native land. EH good bye you racist. Moe you have no blocades in sask. because you can’t think for yourself. could not feed your cows or grow grain. EH

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