Indigenous lawyer says smudging is good step forward, but wishes for courts to address systemic racism

CBC News: Before Brian and Debbie Gallagher read their victim impact statements in a Saskatoon court Wednesday, and when the two people were sentenced for their role in disposing of the Gallaghers’ daughter’s body, both the accused and the family washed themselves in smoke from a smudge pan. 

While the practice of traditional Indigenous smudging has been done in other courthouses in the province, last week was likely the first time it had happened since a new protocol was set in place in Saskatchewan’s provincial courthouses, though the court does not track the requests. “I think that this was one of the most important things in the whole [court] process so far … it created an atmosphere where we were able to feel a little bit at peace,” said Brian.

• Pair sentenced for their roles in disposing of Megan Gallagher’s body
• Megan Gallagher homicide: Accused pleads guilty to human-remains charge

Before the protocol was implemented at the provincial courthouse on Feb. 13, people hoping to smudge before a court hearing would need to do so outside the courthouse or follow an informal process to request it. On Wednesday, some people smudged in the courtroom and the accused smudged in a separate room.

There are currently no protocols posted on the Saskatchewan Law Courts website for requests to smudge in the Court of King’s Bench or Court of Appeal. “In terms of truth and reconciliation, procedures like this that are all-inclusive, I think, should have been around for as long as Canada has been around in our legal system,” said Brian.

It’s almost like when you’re walking into someplace that comforts you … as soon as you smell it, it just takes you there- Brian Gallagher

Brian, Megan’s father, and Debbie, Megan’s stepmother, count about 100 hearings they’ve attended. They estimate they have smudged outdoors before about three-quarters of the hearings.

During the hearing, the judge and prosecutors also smudged, said Gallagher. He expects the family will request smudging in the courtroom in the future and offer it to the accused again. “It created quite a healing atmosphere, I think, calming and healing,” Brian said. “It’s almost like when you’re walking into someplace that comforts you — whatever room, or whatever your house, or some place that’s special to you — as soon as you smell it, it just takes you there.”

Rick Daniels is the Indigenous elder from Mistawasis Nêhiyawak First Nation, about 70 kilometres west of Prince Albert, who performed the smudge He said four medicines were in the smudge pan: sage, sweetgrass, cedar and tobacco, which he said remove the bad vibes in the room, and when the smoke rises it takes messages and prayers to the Creator.

The practice was a blessing that appeared to help the family, he said.

• Megan Gallagher’s family grateful but sad after Métis woman’s remains identified
• ‘How do you live with yourself?’: Megan Gallagher’s dad questions daughter’s alleged killers

Daniels explained smudging is like washing one’s face, bringing the smoke to one’s eyes to only see good things, smoke to the mouth to only say good things and smoke to the head to only think good thoughts. “When people want to smudge, you shouldn’t say no,” Daniels said about smudging the accused before the hearing.

“We know what they did was bad but sometimes it’s a form of remorse, people change.” As the smudging concluded, Daniels said a prayer in Cree, which he said was to give everyone in the courtroom strength.

‘Teeny, tiny step’ forward

Eleanore Sunchild called smudging an “integral part of our culture” and acknowledged the province’s change as a good step forward — but only a “teeny, tiny step.”

Sunchild is a Cree Indigenous lawyer from Thunderchild First Nation, and the founder of Sunchild Law in North Battleford. She said smudging cleanses the air and energy in the space and believes it’s better to smudge in the area where the proceedings take place, rather than outside

She said families have made a request, through her, to the courts to smudge inside the Court of Queen’s Bench, now called the Court of King’s Bench, and the answer was always no. Sunchild is hoping the new protocol spreads to other courts, but as long as they understand the importance of it — that “it’s not just symbolic, it’s deeply a part of our culture,” Sunchild said.

“One thing that I know about practicing law in Saskatchewan courts is that there is a limited, minimal understanding of Indigenous people, of our culture.”

Sunchild referenced the overrepresentation of Indigenous people in the prison system and said the courts also have to do “way, way more” work to address the systemic discrimination and biases in the court system, including cross-cultural training for those involved in it.

• AKNUTE’NThe power and purpose of the smudging ceremony
• ‘Smudge On’: Saskatoon man working to fill Indigenous cultural, spiritual gap in city

ABOUT THE AUTHOR

Dayne Patterson, Reporter

Dayne Patterson is a reporter for CBC News in Saskatchewan and is based in Saskatoon. He has a master’s degree in journalism with an interest in data reporting and Indigenous affairs. Reach him at dayne.patterson@cbc.ca