A Column By
Native American Studies
University of California, Davis
A major factor in the growth of "big government" has been the propensity of legislative bodies to attempt to criminalize personal behavior which is unpopular or offensive to a particular sectarian tradition but which does no harm to anyone other than the person involved, if then. Moreover, a huge prison bureaucracy has evolved to care for persons whose "crimes" do not result in any harm to anyone else. Similarly, a huge amount of our resources are now being spent to support peace officers, guards, office workers, and so on, involved in the pursuit or control of persons not harming anyone. If we are to halt the growth of government we must stop using jails and prisons to solve the behavioral problems of persons who harm no one else.
This is an especially crucial issue for aboriginal peoples because a substantial percentage of Native citizens who are imprisoned are there because of alcohol or other drug addictions, prostitution, et cetera. First Nations people need to shift the focus from imprisonment to rehabilitation, a task made difficult by the huge sums of money being spent on prisons and unnecessary law enforcement. Of course, all ethnic groups and poor people suffer in the same way.
We can begin by adopting legal codes in our Native Nations and in our municipalities which decriminalize victimless crimes, and we can refuse to enforce outside laws which violate our own legal traditions. We need to think about what I call our "North American Common Law" which is the ancient legal tradition of the indigenous peoples of North America, or we could call it "First Nations Common Law" or "Original American Common Law." Our common law traditions are very different from the often punitive and puritanical impositions of the Euro-North American newcomers.
In order to encourage discussion of this important matter, I propose herewith an amendment to the Canadian and United States constitutions, an amendment which also can be adopted by provinces, states, and Native Nations:
(1) no person shall be imprisoned or confined involuntarily for any act or behavior which does not have a victim (other than that of the individual himself or herself), except that persons may be confined in a medical facility for up to 48 hours for psychological evaluation and counseling if their actions pose an immediate threat to their own life or to that of another; the term "victim" as used above shall include any living creature whose life and liberty is protected from harm by a law now in effect or hereinafter adopted and the property of any person or entity including intangible and tangible property.
(2) actions shall be construed as having a victim if the said actions constitute a direct threat to another living creature or harass, threaten or disturb another creature as otherwise prohibited by law.
(3) The mere possession of an addictive drug or other drug-like substance for personal use shall never result in imprisonment, however, the gift, exchange or sale of said substance or substances to another may be prohibited, taxed or regulated in cases where the transaction can be shown to result in chemical addiction to the said substance on the part of the receiver or in the sickness and/or death of the latter.
(4) Nothing in this amendment shall prevent legislative bodies from outlawing the possession of explosives, weapons, and other items or substances which are designed to kill human beings or to destroy property and which are not necessary in the ordinary course of carrying on a livelihood.
(5) Nothing in this amendment shall prevent legislative bodies from restricting the activities of minors, with the definition of a minor being that already found in law or as hereinafter changed.
The effect of such an amendment should be to end the harassment of women (or men) who need to earn money through voluntary sexual work as well as to halt the imprisonment of persons for possession and personal use of drugs. It should also force government to devote resources to helping persons to end drug dependence rather than building up prison populations.
The ancient common law of North America tended to respect individual freedom. Perhaps this amendment will stimulate discussion about how we can dismantle the "big government" police state-mentality of much of Euro-North America and build clinics and schools rather than prisons.
All rights reserved
(Professor Forbes is the author of ONLY APPROVED INDIANS,
COLUMBUS AND OTHER CANNIBALS, AFRICANS AND NATIVE
AMERICANS and other books)