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Article

Juan Marcellus Tauri

Indigenous criminology has developed since the start of the 21st century as a result of the regeneration of Indigenous epistemologies and reinvigoration of Indigenous critique of the criminal justice practices of settler-colonial states. In stark contrast to Carlen’s call for criminology as a scientific art, Indigenous formulations—political, partisan, and subjective, reflective of the stated aims of activist scholars such as Agozino, Monture-Angus, Victor, Tauri, and Porter—are evangelical by necessity to hold the settler-colonial state accountable for the violence it perpetrates against Indigenous peoples, and to subject western criminologists to critical scrutiny for their historical and contemporary support for the state. This support manifests through the use of theories and research methodologies that silence Indigenous experiences of settler-colonial crime control, and approaches to crime and social harm, and through the discipline of criminology’s continued support for the state’s continued subjugation of Indigenes. The Indigenous critique challenges the Eurocentric nature of much western criminological analysis of Indigenous over-representation in criminal justice, especially in settler-colonial settings, which often lacks a theory of colonialism, reserving analysis for the recalcitrant native and their supposedly criminogenic culture. Also problematic is the tendency of many criminologists to utilise non-engaging methods for researching Indigenous peoples, a process that too often sidelines their experiences of crime control processes. In contrast, Indigenous scholars and their non-Indigenous allies propose an Indigenous variant of the discipline based on core principles that distinguish their activist scholarship from the mainstream, including rejecting the false dichotomy between objectivity and commitment, giving back by speaking truth to power, and making research real for Indigenous peoples.

Article

Thalia Anthony and Harry Blagg

Indigenous people have been subject to policies that disproportionately incarcerate them since the genesis of colonization of their lands. Incarceration is one node of a field of colonial oppression for Indigenous people. Colonial practices have sought to reduce Indigenous people to “bare life,” to use Agamben’s term, where their humanity is denied the basic rights and expression in the pursuit of sovereign extinguishment. Across the settler colonies of Australia, Aotearoa/New Zealand, Canada, and the United States, the colonial drive to conquer land and eliminate Indigenous peoples has left deep scars on Indigenous communities and compromised bonds to kin, culture, and country. Indigenous people have been made refugees in their own countries. Contemporary manifestations of penal incarceration for Indigenous people are a continuation of colonial strategies rather than a distinct phase. The concept of “hyperincarceration” draws attention to the problem of incarceration and its discriminatory targets. It also turns our attention to the turnstile of incarceration in Western postmodernity. However, the prison is but one form of exclusion for Indigenous people in a constellation of eliminatory and assimilatory practices, policies, and regimes imposed by colonial governance. Rather than overemphasizing the prison, there needs to be a broader conceptualization of colonial governance through “the camp,” again in the words of Agamben. The colonial institutionalization of Indigenous people, including in out-of-home care, psychiatric care, and corrective programs, is akin to a camp where Indigenous people are relegated to the margins of society. We eschew a narrow notion of hyperincarceration and instead posit a structural analysis of colonial relations underpinning the camp.

Article

Contemporary societies are culturally diverse. This diversity can be the result of different historical and social processes and might affect the uniformity and efficiency of criminal justice systems. Colonization of indigenous populations that started in the 15th century later European colonization of Africa and migration flows following the Second World War have contributed to this diversity in different ways. The growing importance acquired by culture in the criminal law domain went hand in hand with the attention received by it both in the human rights field (especially linked to minority rights) and in the field of sociological and criminological theories. Nowadays, crimes such as female genital mutilation, forced marriages, and other behaviors grounded in “culture or tradition” form the object of several international human rights instruments and media reports. The way in which criminal justice systems deal with such cases, and more in general with cultural factors, varies greatly. Different instruments have been proposed to allow the consideration of cultural elements within criminal proceedings among which (in common law countries) is the formalization of an autonomous “cultural defense.” However, international human rights instruments, especially those protecting the rights of vulnerable subjects such as women and children, have repeatedly discouraged states to take into account “culture, religion, and tradition” as grounds for justification (see, e.g., the Istanbul Convention). Criminal proceedings are not the only setting to deal with culture and crime. More recently, the development of alternative dispute resolution mechanisms and restorative justice both within formal and informal (community) settings have given an additional option to take culture into account in the resolution of disputes (in terms of procedures used and normativities in play). Concerns exist with regard to the substantive and procedural rights of participants to these programs. However, these alternatives could represent a way to allow a certain degree of legal pluralism and facilitate access to justice for minority groups.