The Office of the Correctional Investigator (OCI) released its 2023-24 report in November, just days before the death of former senator Murray Sinclair — a pivotal figure who advocated for justice and truth for Indigenous people.

The report once again highlighted the systemic barriers Indigenous people face in federal prisons and identified cultural disparities in treatment, limited access to Indigenous programs and discriminatory risk assessments. The OCI repeated its recommendations for more resources for Indigenous people in prison.

It’s evident that the outcomes for Indigenous people in the criminal justice system remain bleak, despite the tremendous work of Sinclair and many other Indigenous community leaders and grassroots organizers.

The over-representation of Indigenous people in the criminal justice system has become a recurring theme in a storyline used throughout the lands known as Canada. The trope acknowledges a problem, but makes the same recommendations over and over and preserves an institution that repeatedly produces the same results — higher rates of Indigenous incarceration.

New systems, same results

The 1960s were a time of emerging civil and human rights and a reduced role for Indian agents, but the prison system silently picked up where the agents left off.

In 1967, the Canadian Corrections Association released the report Indians and the Law, which revealed growing numbers of Indigenous people in prison. Before 1960, the rate of Indigenous incarceration remained low — between one and two per cent of the correctional population.

After 1960, the rate of Indigenous incarceration began to rise significantly — from between one and three per cent each year. Today, one third of the correctional population is Indigenous. This increase has occurred despite an overall decrease in the federal prison population since at least 2010.

Founded in 1973, the Office of the Correctional Investigator’s first report highlighted the racial discrimination faced by “Native peoples” in prisons. In the 1990s, the office made “Aboriginal Offenders” a permanent heading in its reports. Since then, the correctional investigator has highlighted growing rates of Indigenous incarceration every single year. The trend has not reversed in five decades.

The OCI’s recommendations for dealing with the Indigenous prison population are beginning to sound like a broken record: more elders, more Indigenous programs, more access to cultural teachings, more cultural training, more healing lodges, more Indigenous employees and more correctional consultations with Indigenous communities.

The paradox of programming and infrastructure

These remedies are important, but they also create a paradox: Prisons normalize the presence of Indigenous people within them by institutionalizing cultural programming and infrastructure.

The Centre for Justice Exchange, a research centre for community and collaborative justice, hears from hundreds of incarcerated Indigenous people every year. One of the more troubling stories repeatedly heard is that most Indigenous prisoners first encounter cultural teachings and support in prison. Prisons have become the first point of contact for Indigenous culture when they should be the last. Communities should be first.

Many Indigenous people in prison experience overt racism, cultural disrespect, destruction of sacred items and ongoing trauma through longer periods of incarceration, more punitive measures and institutional violence. Once they leave, many find they have nowhere to go or return to communities that are unable to offer much support. Resources aimed at avoiding further incarceration need to go towards programs offering social services, community safety, employment and skill development and help to break free from gangs, addictions or the stigma of having been in prison.

Instead, a judicial institution is being upheld that removes people from their communities and makes prisons one of the few places where Indigenous people can go to get cultural programming or support.

Indigenous incarceration trends, characterized by punitive and disproportionate imprisonment rates and systemic racism, are not unique to Canada. Similar patterns have been observed in other settler countries, including Australia, New Zealand and the United States.

Rather than address the problem, prisons not only reproduce punishments that perpetuate incarceration, but also worsen social dislocation and separation that undermine the potential of communities. Studies and reports from the above countries highlight the need to examine and rethink problematic patterns and trends found in the incarceration of Indigenous people by considering community solutions.

Murray Sinclair’s vision

In Canada, calls for action in the Truth and Reconciliation Commission’s final report emphasized the need for community-led justice in keeping with cultural practices and traditions. Despite this, we still hear the mantra of improving an institution that, by its very design, diminishes Indigenous people and their communities.

Prisons are not places where justice lives or where Indigenous healing and community-building thrive. From his leadership of the Truth and Reconciliation Commission to his lifelong commitment to Indigenous rights, Sinclair’s work represents a vision of justice that remains far from realized.