Indigenous Justice Systems and Tribal Society

Indigenous justice systems are based on a holistic philosophy. Law is a way of life, and justice is a part of
the life process.

by Ada Pecos Melton

IN MANY CONTEMPORARY TRIBAL COMMUNITIES, dual justice systems exist. One is based on
what can be called an American paradigm of justice, and the other is based on what can be called
an indigenous paradigm.

The American paradigm has its roots in the world view of Europeans and is based on a retributive
philosophy that is hierarchical, adversarial, punitive, and guided by codified laws and written rules,
procedures, and guidelines.1 The vertical power structure is upward, with decision making limited
to a few. The retributive philosophy holds that because the victim has suffered, the criminal should
suffer as well. It is premised on the notion that criminals are wicked people who are responsible
for their actions and deserve to be punished.2 Punishment is used to appease the victim, to satisfy
society's desire for revenge, and to reconcile the offender to the community by paying a debt to
society. It does not offer a reduction in future crime or reparation to victims.

In the American paradigm, the law is applied through an adversarial system that places two
differing parties in the courtroom to determine a defendant's guilt or innocence, or to declare the
winner or loser in a civil case. It focuses on one aspect of a problem, the act involved, which is
discussed through adversarial fact finding. The court provides the forum for testing the evidence
presented from the differing perspectives and objectives of the parties. Interaction between parties
is minimized and remains hostile throughout. In criminal cases, punitive sanctions limit
accountability of the offender to the state, instead of to those he or she has harmed or to the
community.

The indigenous justice paradigm is based on a holistic philosophy and the world view of the
aboriginal inhabitants of North America. These systems are guided by the unwritten customary
laws, traditions, and practices that are learned primarily by example and through the oral
teachings of tribal elders.3 The holistic philosophy is a circle of justice that connects everyone
involved with a problem or conflict on a continuum, with everyone focused on the same center.
The center of the circle represents the underlying issues that need to be resolved to attain peace
and harmony for the individuals and the community. The continuum represents the entire process,
from disclosure of problems, to discussion and resolution, to making amends and restoring
relationships. The methods used are based on concepts of restorative and reparative justice and
the principles of healing and living in harmony with all beings and with nature.4

Restorative principles refer to the mending process for renewal of damaged personal and
communal relationships. The victim is the focal point, and the goal is to heal and renew the
victim's physical, emotional, mental, and spiritual well-being. It also involves deliberate acts by the
offender to regain dignity and trust, and to return to a healthy physical, emotional, mental, and
spiritual state. These are necessary for the offender and victim to save face and to restore
personal and communal harmony.

Reparative principles refer to the process of making things right for oneself and those affected by
the offender's behavior. To repair relationships, it is essential for the offender to make amends
through apology, asking forgiveness, making restitution, and engaging in acts that demonstrate a
sincerity to make things right. The communal aspect allows for crime to be viewed as a natural
human error that requires corrective intervention by families and elders or tribal leaders. Thus,
offenders remain an integral part of the community because of their important role in defining the
boundaries of appropriate and inappropriate behavior and the consequences associated with
misconduct.

In the American justice paradigm, separation of powers and separation of church and state are
essential doctrines to ensure that justice occurs uncontaminated by politics and religion. For many
tribes, law and justice are part of a whole that prescribes a way of life. Invoking the spiritual realm
through prayer is essential throughout the indigenous process. Restoring spirituality and cleansing
one's soul are essential to the healing process for everyone involved in a conflict. Therefore,
separation doctrines are difficult for tribes to embrace; many find it impossible to make such
distinctions. Whether this is good or bad is not the point. It is, however, an example of the
resistance of indigenous people to accept doctrines or paradigms that contradict their holistic
philosophy of life.

Law As a Way of Life

The concept of law as a way of life makes law a living concept that one comes to know and
understand through experience. Law, as life, is linked to the elaborate relationships in many tribal
communities. In some tribes it is exemplified by tribal divisions that represent legal systems
prescribing the individual and kin relationships of members and the responsibilities individual and
group members have to one another and to the community.5 For example, in several Pueblo
tribes, one is born into one of two moieties, or tribal divisions, decided by patrilineal lines. A
woman can change membership only through marriage, when she joins her husband's moiety.
Males generally cannot change their moiety, unless it is done during childhood through adoption or
if their mother remarries into the opposite moiety. This illustrates how tribal law becomes a way of
life that is set in motion at birth, and continues through an individual's life and death.

The indigenous approach requires problems to be handled in their entirety. Conflicts are not
fragmented, nor is the process compartmentalized into pre-adjudication, pretrial, adjudication, and
sentencing stages. These hinder the resolution process for victims and offenders and delay the
restoration of relationships and communal harmony. All contributing factors are examined to
address the underlying issues that precipitated the problem, and everyone affected by a problem
participates in the process. This distributive aspect generalizes individual misconduct or criminal
behavior to the offender's wider kin group, hence there is a wider sharing of blame and guilt. The
offender, along with his or her kinsmen, are held accountable and responsible for correcting
behavior and repairing relationships.6

Differences in Justice Paradigms

American Justice Paradigm Indigenous Justice Paradigm

Vertical Holistic

Communication is rehearsed Communication is fluid

English language is used Native language is used

Written statutory law derived from rules and Oral customary law learned as a way of life by
procedure, written record example

Separation of powers Law and justice are part of a whole

Separation of church and state The spiritual realm is invoked in ceremonies and
prayer

Adversarial and conflict oriented Builds trusting relationships to promote resolution

and healing
Argumentative Talk and discussion is essential

Isolated behavior, freeze-frame acts Reviews problem in its entirety, contributing factors
are examined

Fragmented approach to process and solutions Comprehensive problem solving

Time-oriented process No time limits on the process, long silences and

patience are valued

Limits participants in the process and solutions Inclusive of all affected individuals in the process
and solving problem

Represented by strangers Representation by extended family members

Focus on individual rights Focus on victim and communal rights

Punitive and removes offender Corrective, offenders are accountable and

responsible for change

Prescribes penalties by and for the state Customary sanctions used to restore victim-
offender relationship

Right of accused, especially against self-incrimination Obligation of accused to verbalize accountability

Vindication to society Reparative obligation to victims and community,

apology and forgiveness

Indigenous Systems Today

The status of tribes as sovereign nations are both preconstitutional and xtraconstitutional. Tribes
continue to possess four key characteristics of their sovereign status: a distinctive permanent
population, a defined territory with identifiable borders, a government exercising authority over
territory and population, and the capacity to enter into government-to-government relationships
with other nation-states.7

The administration of justice, law, and order is a function of government retained by the tribes as
sovereign nations. It is within this realm that indigenous justice systems exist. Although there
have been many efforts to limit the jurisdiction of tribal justice systems,8 tribes retain the
authority to determine the legal structure and forums to use in administering justice and to
determine the relationship of the legal structure with other governing bodies. Tribes have personal
jurisdiction over their members and non-member Indians, territorial jurisdiction over their lands,
and subject-matter jurisdiction over such areas as criminal, juvenile, and civil matters. While
limited by the Indian Civil Rights Act in sentencing,9 tribes have concurrent jurisdiction over the
felony crimes enumerated under the Major Crimes Act.10

The forums for handling disputes differ for each tribe, which may use varying combinations of
family and community forums, traditional courts, quasi-modern courts, and modern tribal courts.

Family forums, such as family gatherings and talking circles, are facilitated by family elders or
community leaders. Matters usually involve family problems, marital conflicts, juvenile misconduct,
violent or abusive behavior, parental misconduct, or property disputes. Customary laws, sanctions,
and practices are used. Individuals are summoned to these gatherings following traditional
protocols initiated by the chosen elder. For example, in Pueblo communities the gathering is
convened by the aggrieved person's family, which must personally notify the accused and his or
her family of the time and place of the gathering.
Generally, elders are selected as spokespersons responsible for opening and closing the meetings
with prayers. During the meeting, each side has an opportunity to speak. The victim may speak on
his or her own behalf, and the family may assist in conveying the victim's issues. Extended family
members often serve as spokespersons if the victim is very young or vulnerable. Similarly, a
spokesperson may be designated to speak on behalf of the accused, especially if the accused is a
juvenile or if other circumstances prevent the accused from speaking. When the family forum
cannot resolve a conflict, the matter may be pursued elsewhere. Offender compliance is obligatory
and monitored by the families involved. It is discretionary for decisions and agreements to be
recorded by the family.

Community forums require more formal protocols than family forums, but draw on the families'
willingness to discuss the issues, events, or accusations. These are mediated by tribal officials or
representatives. Some tribes have citizen boards that serve as peace makers or facilitators.
Customary laws, sanctions, and practices are used. Personal notice is made by tribal
representatives to the individuals and families involved. Usually, this is all that is necessary to
compel individuals to meet in both the family and community forums. When necessary, a personal
escort to the gathering place may be provided by tribal officials. In some tribal communities notice
may be by mail.

In the community forum, the tribal representative acts as facilitator and participates in the
resolution process along with the offender and victim and their families. As with the family forum,
prayers are said at the beginning and at closure. An unresolved matter may be taken to the next
level, however, but tribes may or may not offer an appeal process for the community forum. In the
Navajo peacemaker system, formal charges in the Navajo district court may be filed. In some
Pueblo communities, matters may be pursued through the traditional court. Offender compliance is
obligatory and monitored by the families involved and tribal officials.

Traditional courts incorporate some modern judicial practices to handle criminal, civil, traffic, and
juvenile matters, but the process is similar to community forums. These courts exist in tribal
communities that have retained an indigenous government structure, such as the Southwest
Pueblos. Matters are initiated through written criminal or civil complaints or petitions. Defendants
are often accompanied by relatives to the hearings. Generally, anyone with a legitimate interest in
the case is allowed to participate from arraignment through sentencing. Heads of tribal
government preside and are guided by customary laws and sanctions. In some cases written
criminal codes with prescribed sanctions may be used. Offender compliance is mandated and
monitored by the tribal officials with assistance from the families. Noncompliance by offenders may
result in more punitive sanctions such as arrest and confinement.

Defendants are notified in writing. Although rare, matters may be appealed to the tribal council. In
some tribes where a dual system exists, interaction between the modern American court and
traditional court are prohibited. That is, one may not pursue a matter in both lower-level courts.
However, an appeal from either court may be heard by the tribal council, which serves as the
appellate court. Generally, these courts record proceedings and issue written judgment orders.

Quasi-modern tribal courts are based on the Anglo-American legal model. These courts handle
criminal, civil, traffic, domestic relations, and juvenile matters. Written codes, rules, procedures,
and guidelines are used, and lay judges preside. Some tribes limit the types of cases handled by
these courts. For instance, land disputes are handled in several Pueblo communities by family and
community forums. Like traditional courts, noncompliance by offenders may result in more
punitive sanctions such as arrest and confinement. These are courts of record, and appellate
systems are in place.

Modern tribal courts mirror American courts. They handle criminal, civil, traffic, domestic relations,
and juvenile matters and are guided by written codes, rules, procedures, and guidelines. They are
presided over by law-trained judges and often exist in tribal communities that have a
constitutional government. Like traditional courts and quasi-modern tribal courts, noncompliance
by offenders may result in more punitive sanctions such as arrest and confinement. Like quasi-
modern tribal courts, these are courts of record, and appellate systems are in place.

Some of the quasi-modern and modern courts incorporate indigenous justice methods as an
alternative resolution process for juvenile delinquency, child custody, victim-offender cases, and
civil matters. The trend of tribal courts is to use the family and community forums for matters that
are highly interpersonal, either as a diversion alternative, as part of sentencing, or for victim-
offender mediation. Some are court-annexed programs such as the Alternatives For First Time
Youth Offenders Program sponsored by the Laguna Pueblo tribal court in New Mexico. Under this
program, juvenile offenders are referred to the village officers, who convene a community forum.
Recommendations for resolving the matter may be court-ordered, or the resolution may be
handled informally by the the village officers. This joint effort by the court and village officers
allows them to address the problem at the local village level and to intervene early to prevent
further delinquency.

Characteristics of Indigenous law

Common terms or references to the law of indigenous societies include customary law, indigenous
law, native law, and tribal or native law ways. All refer to the same concept.

Customary law is generally derived from custom. Custom in this sense means a long-established
practice that has acquired the force of law by common adoption or acquiescence; it does not
vary.11

Tribal common law is based on the values, mores, and norms of a tribe and expressed in its
customs, traditions, and practices. In some tribes, the tribal common law has been set out in
different court decisions and written opinions over time and has become case law.12 Among
several Pueblo communities, the matrilineal system holds that property belongs to the female. In a
divorce or separation, property is divided according to the matrilineal definitions of property
ownership and is written into the decisions of the traditional or tribal court. Similarly, Navajo
courts incorporate Navajo common law in decisions in probate, criminal, and child custody cases,
and marital conflicts.13

For many tribes along the Northwest coast such as the Yurok, customary laws dictate the areas
where families can conduct their fishing, hunting, and gathering. These areas are passed down
from one generation to the next. When someone fishes in another family's area, it is considered an
affront to the entire family. By custom, the wronged family convenes a family forum as the proper
way to handle the matter and to request compensation. Compensation may be with fish, fishing
gear, feathers, hides, beadwork, traditional clothing, or other forms of payment.

Among several Pueblo communities, it is customary for discipline to be administered by the fiscale,
who is responsible for maintaining the peace and overseeing the welfare of children and youth. It
is a general practice for parents to summon the fiscale when their children are unruly or
misbehaving. The fiscale advises the children about the consequences of their misconduct and may
reprimand them or refer them and their parents to services such as counseling.

In many tribes, information, beliefs, and customs are handed down orally or by example from one
generation to another.14 For example, in the Minto Tribal Court of Alaska the resolution process
involves a segment dedicated to ''traditional counseling'' by the facilitator or presiding judge.
There is a general practice of ''advising giving'' in the traditional courts of the Pueblos and the
''talking to'' in the Navajo peace making system. This segment is traditionally set aside for the
spokespersons or tribal officials to speak of community values, mores, and the consequences of
misbehavior or misconduct. Often these are conveyed in parables or creation narratives and
beliefs. Advice is given about harboring vengeful feelings, and everyone is encouraged to renew
relationships.

The Indigenous Justice Process

Indigenous methods of conflict resolution include traditional dispute resolution, peace making,
talking circles, family or community gatherings, and traditional mediation, described only by the
language of the tribal community. All these refer to the methods of resolving problems and to the
methods of restorative and reparative justice.

The structure of relationships in many tribal communities is paramount to a legal system

exemplified by the clan system. Tribal law determines clan identification, which is often matrilineal.
Among Pueblo communities, moiety and clan affiliations determine for which group an individual
will dance, sing, or hunt in social activities, which religious or medicine groups one may join, which
political positions one may hold, whom one may court or marry, or what property one may own.
The clan system regulates the behavior of its members. The interlocking relationships in tribal
communities often determines the flow of how problems are handled.

For example, in many tribal communities, parents and the extended family are expected to
nurture, supervise, and discipline their children. When parental misconduct occurs, such as with
physical or sexual abuse or neglect, the parents and extended family convene through the
leadership of an elder to address the matter. In a minor case of physical abuse or neglect, the
family forum is used. The distributive aspect is invoked extensively to ensure protection of the
children and to monitor and enforce proper parental behavior and responsibility, which is regulated
by the family. More serious cases may involve tribal officials.

In the family and community forums and the traditional courts, those accused of wrongdoing are
required to give a verbal account of their involvement in an incident, whether or not they admit to
the accusations.15 This verbal account is key in discovering the underlying factors precipitating the
problem. It requires participation by the offender's family and relatives who may have to explain
the offender's misconduct, especially when some type of victimization has occurred. For example,
parents may be admonished for not providing proper discipline and supervision for their children
who vandalized or destroyed property. Relatives may be criticized for allowing a son or brother to
abuse his wife or children.

Verbal accountability by the offender and the offender's family is essential to express remorse to
the victim and the victim's family. Face-to-face exchange of apology and forgiveness empowers
victims to confront their offenders and convey their pain and anguish. Offenders are forced to be
accountable for their behavior, to face the people whom they have hurt, to explain themselves, to
ask forgiveness, and to take full responsibility for making amends. Observing and hearing the
apology enables the victim and family to discern its sincerity and move toward forgiveness and
healing. Forgiveness is strongly suggested, but not essential for the victim to begin healing.

The restorative aspect frequently involves the use of ritual for the offender to cleanse the spirit
and soul of the bad forces that caused the offender to behave offensively. Ceremonial sweats,
fastings, purifications, and other methods are used to begin the healing and cleansing process
necessary for the victim, the offender, and their families to regain mental, spiritual, and emotional
well-being and to restore family and communal harmony.16

The agreements reached in family and community forums are binding. Participants are compelled
to comply through the same interlocking obligations established in individual and community
relationships. Compliance and enforcement are important aspects of indigenous systems because
there is little coercion. Accepting punishment does not guarantee that an offender will be
accountable. Therefore, it is essential that offenders perform outward acts to demonstrate their
responsibility for correcting behavior. Offender accountability is essential to ensure compliance
with decisions and to prevent further criminality or relapse into deviant behavior. Equally
important is for punitive sanctions to be decided and applied by individuals who were affected by
the offender's behavior.

Historically, there is little evidence of penal systems in tribal communities. This fact remains today,
although there are many who express the need for secure confinement facilities to address serious
and violent crimes. Many customary sanctions to appease victims and to safeguard against
vengeance are still in use. These include public ridicule, public shaming, whippings, temporary and
permanent banishment, withdrawal of citizenship rights, financial and labor restitution, and
community service. Some tribes still temporarily or permanently banish individuals who commit
serious or violent crimes. Among the Warm Springs Tribes in Oregon, it is customary to refer
lawbreakers to the ''whipman,'' who may whip a person for misconduct. In the Laguna Alternatives
for First Time Youth Offenders Program, community service is used extensively.

The indigenous process is also used in offenses where there are no victims, such as problems
between parents and children, individual misconduct, or alcohol consumption. Family members
affected by the offender's behavior or who are concerned with the offender's welfare may
participate. Many tribal people view crime, delinquency, and other deviant behaviors as symptoms
of bigger family problems. Widening the affected target group to include the offender, parents,
siblings, and other extended family members enlists help from those most familiar with the
situation to assist in correcting and preventing more serious crime.

The indigenous process can often be extremely uncomfortable and emotional because it involves
participation by everyone affected, but great care is taken to provide a safe environment for
matters to be discussed. The distributive nature of this process uses the extended family as a
resource for the offender, the victim, and the community to resolve problems, to ensure
compliance, to provide protection, and to retain ownership of the problems.17

Preserving Indigenous Systems

Tribes are faced with the inevitable conflict created by two justice paradigms competing for
existence in one community. Many Americans believe the law is something to be applied and
justice is something to be administered. In contrast, tribes traditionally believe law is a way of life
and justice is a part of the life process. For one paradigm to exist, it must convert people to follow
it. Although it appears that tribal courts follow the Anglo-American legal system, many adhere to
the traditional values of the tribal justice system. This is largely because tribes have been wary of
the ethnocentric view of the Western colonizers who devalued their legal structures and wanted to
replace them with an imported Western system.18 Tribes were also required to participate in the
Anglo-American legal system in order to protect their lands and people, but they did so without
trusting or believing it. This foreign system was imposed by the federal government, thereby
thwarting their efforts to convert the tribes.

Attempts to strengthen and re-traditionalize tribal justice systems stem from discontent with the
efforts of modern tribal courts to address the crime, delinquency, social, and economic problems in
tribal communities. It is joined by the dominant culture's current disillusionment with justice in this
country, which causes doubt about retributive justice and a move toward a more restorative
framework.19 This emerging restorative perspective for the American justice system is illustrated
by the following values:

All parties should be included in the response to crime-offenders, victims, and the community.
Government and local communities should play complementary roles in that response.
Accountability is based on offenders understanding the harm caused by their offense, accepting
responsibility for that harm, and repairing it ... [R]estorative justice guides professionals in the
appropriate and equitable use of sanctions to ensure that offenders make amends to victims and
the community.20

Conversion to the American justice paradigm is a difficult choice for tribes, particularly those with
a functional indigenous justice system. For many, full conversion is not possible because the
indigenous justice paradigm is too powerful to abandon. The strong adversarial features of the
American justice paradigm will always conflict with the communal nature of most tribes. For this
reason, the inherent restorative and reparative features of the indigenous justice paradigm will
continue to be more appealing to the majority of tribal people.

Nonetheless, it is important for tribes to identify their community strengths and views on justice,
law, and order. The role of non-Indians is to assist and support the tribes in strengthening their
justice systems and to suppress the urge to take over or replace them. It is the sovereign and
cultural right of tribes to explain, interpret, change, enact, and apply their own laws, oral and
written, through whatever mechanisms they choose. It is their responsibility to teach the
knowledge and skills embedded in their indigenous paradigm to their young. American Indian and
Alaskan Native people have the clearest understanding of their indigenous law ways because they
live them. They must be the messengers of this law to preserve its integrity, authority, power, and
meaning to the people.

The many intrusions to the tribal way of life have interfered with the natural evolution of the
indigenous justice paradigm, but while slowed, it has never stopped. The tribal resurgence to
strengthen and re-traditionalize their judiciaries has rejuvenated the evolutionary process. While
mainstream society is in the midst of shifting from a retributive justice model to a restorative one,
many tribes are strengthening their indigenous paradigm. In doing so, they are empowering
themselves to provide a justice system that has meaning to the people they serve and the power
to perpetuate what was preserved by the ancestors and passed on by the elders as testimony of
their commitment to the future of tribes. Contemporary American Indian and Alaskan Native
people are now faced with making the same commitment to preserve the indigenous justice
system the elders maintained and find ways to perpetuate it.

Cite this article:

Melton, Ada Pecos (2005). Indigenous Justice Systems and Tribal Society. In Wanda D. McCaslin,
ed., Justice as Healing: Indigenous Ways. Writings on Community Peacemaking and Restorative
Justice from the Native Law Centre. St. Paul, MN: Living Justice Press. Pp. 108-120

Footnotes

Points of view or opinions expressed in this article are those of the author and do not necessarily
represent the official position or policies of the U.S. Department of Justice.

1. Yazzie, Life Comes From It: Navajo Justice Concepts, Legal Education Series, Alternatives in
Dispute Resolution and Traditional Peacemaking (Petaluma, Calif.: National Indian Justice Center,
1993) and Falk, International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order. 32
Temple L. Q. 295 (1959).

2. Travis, Introduction to Criminal Justice, Second Edition (Cincinnati: Anderson Publishing Co.,
1995) and Neubauer, America's Courts and the Criminal Justice System, Second Edition
(Monterey: Brooks/Cole Publishing Company, 1984).

3. Yazzie, supra n. 1; Tso, Decision Making in Tribal Courts, 31 Arizona L. Rev. (1989); and Zion,
Searching for Indian Common Law, in Morse and Woodman, (eds.), Indigenous Law and the State
(Forus Publications, 1988).

4. Yazzie, supra n. 1, at 4.

5. Connors and Brady, ''Alaska Native Traditional Dispute Resolution,'' paper presented at the
National Conference on Traditional Peacemaking and Modern Tribal Justice Systems in
Albuquerque, New Mexico. Tribal Justice Center, (1986) ''Indian Jurisprudence and Mediation the
Indian Way: A Case Review of the Saddle Lake Tribal Justice System,'' paper presented at the
Conference on Mediation in Winnipeg, Manitoba.

6. Melton, ''Traditional and Contemporary Tribal Law Enforcement: A Comparative Analysis.'' Paper
presented at the Western Social Science Association, 31st Annual Conference in Albuquerque, New
Mexico, (1989).

7. Valencia-Weber and Zuni, pre-publication draft, (1995), ''Domestic Violence and Tribal
Protection of Indigenous Women in the United States.'' to be published by St. John's University
Law Review.

8. See, the establishment of the Court of Indian Offenses in 1883; the unilateral imposition of law
and order codes in 1884; passage of the Major Crimes Act, 18 U.S.C. 1153 (1885, Supp. 1986);
the Indian Country Crimes Act, 18 U.S.C. 1152 (1817); the Assimilative Crimes Act, 30 STAT. 717
(1898); Public Law 83-280,Indians-Criminal Offenses and Civil Causes-State Jurisdiction, 18 U.S.C.
1162, 25 U.S.C. 1321-1326, 28 U.S.C. 1360; the Indian Civil Rights Act, 25 U.S.C. 1301 1303
(1968, Suppl. 1986); and Supreme Court decisions such as Oliphant v Suquamish Indian Tribe,
435 U.S. 191; and Duro v. Reina, et al., 110 S.Ct. 2953.

9. Indian Civil Rights Act, id. at 18, imposes certain protections and limitations on tribal authority
and as amended in 1986 limits criminal punishment to one year imprisonment and a $5,000 fine.

10. Major Crimes Act, supra n. 8, at 18.

11. Zuni, ''Justice Based on Indigenous Concepts.'' Paper presented at the Indigenous Justice
Conference: Justice Based on Indian Concepts, (1992).

12. Austin, ''Incorporating Tribal Customs and Traditions into Tribal Court Decisions.'' Paper
presented at the Federal Indian Bar Association: Indian Law Conference in Albuquerque, New
Mexico, (1992).

13. Zuni, supra n. 11, at 25.

14. Id.

15. Melton, supra n. 6, at 16.

16. Bluehouse and Zion. Hozhooji Naati'annii: The Navajo Justice and Harmony Ceremony. 10
Mediation Q. 327 (1993).

17. Canadian Institute for Conflict Resolution, ''Report to the Council of Akwesasne Concerning a
Peacemaking Process,'' in Ottawa, Canada (1990).

18. Mohawk, Prologue, in Wallace, The White Roots of Peace (Philadelphia: University of
Pennsylvania Press, 1946).

19. Umbreit, Victims Seeking Fairness, Not Revenge: Toward Restorative Justice, Federal
Probation (September, 1989). Van Ness, Restorative Justice, Galaway and Hudson, eds. Criminal
Justice, Restitution, and Reconciliation (Monsey, N.J.: Willow Tree Press, 1990).

20. Brazemore and Umbreit, ''Balanced and Restorative Justice: Program Summary.'' Office of
Juvenile Justice and Delinquency Prevention, October (1994).

© American Indian Development Associates, LLC 2004-2013.

All Rights Reserved.

SOURCE: http://www.aidainc.net/Publications/ij_systems.htm

Aboriginal Concepts of Justice TOP

Introduction TOP

When the white man first seen us, when they first said, “Well, there’s something wrong with these
people here. They don’t have no religion. They have no judicial system. We have to do something for
these people.” I guess that must have been what they thought because they totally screwed up what
we already had.

They introduced new religion and there was nothing wrong with our old religion. They just didn’t
understand it. We had our own ways of teaching our children, like the Elders and everything. There
was nothing wrong with that way of teaching children. They just didn’t understand it.

The same thing with our judicial system. We had that judicial system and the white people, when they
came here, they didn’t see that. They said, “These guys have nothing. We have to introduce all these
different things to them so they can be one of us.” That’s exactly the problem that we have.
Chief Philip Michel

Brochet

Aboriginal peoples have always had governments, laws and some means of resolving disputes within
their communities. North American Aboriginal societies were dynamic cultures that adapted constantly
to meet changing circumstances. Aboriginal people were influenced by their relations with one
another in migrations, warfare, conquest, and in commercial and/or political unions.

They had vast, complicated, intertribal trading systems that covered the continent. They developed
sophisticated external relationships between and among tribes that cemented these commercial and
political relations. Later, with the coming of Europeans, they extended similar trade and diplomatic
relations to various countries in Europe.

Aboriginal peoples have persisted for thousands of years as distinct cultural entities. They never have
been conquered in war. They were allies. They have never surrendered their original right to govern
themselves in accordance with their customs and cultures. Although successive federal governments
have tried to interfere with or diminish that right, and to replace it with their concepts of "Aboriginal"
government, they have done so without much success.

More importantly, successive federal governments and religious organizations in Canada have tried to
interfere with, and even destroy, the cultures of Aboriginal people and to supplant them with European
cultures and values, again without much success. At best, this amounts to discrimination. At worst, it
is cultural genocide.

The daily, systemic cultural discrimination inflicted upon Aboriginal people by the justice system,
however unintentional, demeans and diminishes the importance and relevance of their cultures,
languages and beliefs. At the very least, as one Aboriginal language interpreter told our Inquiry,
Aboriginal people have a right to understand what is happening to them.

I was appalled to learn that a man had been hired [as an interpreter] who does not speak any native
Aboriginal language at all and it still exists. And again, I ask these questions; how has this man been
able to interpret for an Aboriginal person who cannot speak or understand English? How many
Aboriginal people have been denied the right to defend themselves because this man is not capable
of understanding and interpreting their testimony? How many Aboriginal people have been convicted
because this man was unable to translate a Crown attorney’s questions accurately so that they
understand what they were being asked; therefore, unknowingly, and perhaps falsely, incriminating
themselves? And how many Aboriginal people have pleaded guilty out the sheer futility of what seems
to be a hopeless situation?

Barbara Whitford
Portage la Prairie

"What is certain for Aboriginal people," that same person added, is that what "they have managed to
retain to a considerable degree, in all this turmoil, is their distinct identity." In fact, despite attempts to
eradicate Aboriginal cultures, cultural distinctiveness remains a hallmark of Aboriginal life.

In this chapter, we discuss Aboriginal and non-Aboriginal concepts of justice, in brief. We discuss how
they are similar and how they are different. We try to explain how they work and how their purposes
and processes differ. TOP

 
Aboriginal People and the Role of the Elders TOP

To understand an Aboriginal community, one must appreciate first the role that the elders play within
it. The prominent position accorded to elders is a striking feature of Aboriginal societies. They have
been largely responsible for retaining much of the knowledge of Aboriginal cultural traditions about
which we heard so much in the course of our hearings.

Elders—both men and women—are the "teachers" and, in some cases, are the "healers"—that is, the
"medicine people"—of the tribe. The role of elders within Aboriginal communities sometimes varied,
but generally consisted of helping the people, individually and collectively, to gain knowledge of the
history, traditions, customs, values and beliefs of the tribe, and to assist them to maintain their well-
being and good health. They were respected for their wisdom and for their experience, and for the fact
that, having lived a long life, they were able to advise the people on what to do in difficult situations,
as a result of that experience. In some tribal authorities today, councils of elders exist, with the right to
advise tribal officials and tribal governments on various matters of interest to the tribe.

Elders have long been considered the ones who bridge between the ancient traditions and beliefs of
the people and the modern-day influences that come into play in the day-to-day lives of Aboriginal
men and women. This was so even in past times when there were only Aboriginal people on this
continent.

"Medicine men" and "medicine women" were not necessarily elders in the sense that they were not
necessarily people who had lived a long life. They were people who had been traditionally trained
from their youth in the natural medicines and plants of the forests and fields, including training in their
benefits and how they were to be used to heal the body’s ailments. In addition, they also received
training in the treatment of the person’s spiritual and mental needs.

Although the role of elders and healers came under strong attack as a result of government policy,
elders still have a place of prominence within Aboriginal communities and there still are people within
Aboriginal communities with knowledge and training in the traditions of Aboriginal healing. The role of
both elders and healers within Aboriginal societies is still very important and many Aboriginal people
still go to them for advice, assistance and treatment, sometimes even in conjunction with treatment
they may be receiving from medically trained professionals.

That is because, in almost all Aboriginal belief systems, each person has three aspects which make
up his or her whole being. Those are the body, the mind and the spirit. It is said that for Aboriginal
people to heal from whatever ails them, all aspects of their being need to be treated—not just one. In
that respect, the Aboriginal belief is in the holistic treatment of the person. Aboriginal healers, when
called upon to minister to a sick person, do not only administer medicines to the body, but also
conduct spiritual ceremonies for the spirit and counsel the person to help clear his or her mind of the
effects of the sickness.

In Aboriginal beliefs, if only the body is treated, then healing cannot take place properly. If the body
becomes ill, then the spirit and mind also are affected. In the same way, it is believed that before the
body becomes sick, there are often signs of the impending sickness apparent in the mental or spiritual
status of the person. Preventive steps thus can be taken by addressing the person’s spiritual needs
early on. Keeping the spirit strong was seen as practising preventive medicine. Elders, and people
who know of traditional ways of healing, are considered very important and are respected highly by
Aboriginal people.

Some Aboriginal elders believe that Aboriginal people who are ill must have all three aspects healed
fully in the Aboriginal way. Some have said that if an Aboriginal person goes to a non-Aboriginal
doctor, then that person cannot be healed properly in the traditional way, since traditional healing
methods and modern medicine do not mix. Others believe that if medical doctors are treating the
person’s body, then traditional Aboriginal healers can and must attend to the treatment of the person’s
mind and spirit. In the same way, if the person is receiving psychiatric treatment from a psychiatrist,
then his or her physical and spiritual needs still can be met through traditional healing methods. In this
way, elders believe that there is always room for traditional methods of healing to take place.

In the case of Aboriginal inmates, elders believe that healing is required for them, even though there
may not be any direct, harmful physical effects from incarceration, because they believe that there are
harmful effects upon an individual’s mind and spirit from being locked up.
Many Aboriginal people believe that as well, particularly some of the Aboriginal inmates from whom
we heard. Some institutional officials are just beginning to recognize the potential importance that
Aboriginal elders and healers can have within their institutions.

It is apparent that Aboriginal elders will continue to play a very important role in the future of
Aboriginal societies. Understanding the role which they play is important to appreciate why events
evolve as they do within Aboriginal communities, because the elders wield great influence. TOP

 
Aboriginal and Non-Aboriginal Peoples: Two Worldviews TOP

Aboriginal peoples do not adhere to a single life philosophy, religious belief or moral code. Indeed,
there are and have been considerable differences among tribes. The Aboriginal peoples of North
America, for the most part, hold fundamental life philosophies different from those of the dominant
European-Canadian society. These differences in worldviews between European-Canadians and
Aboriginal people are broad enough and general enough to make most European-Canadian
institutions incompatible with the moral and ethical value systems of Aboriginal Canadians.

At a fundamental cultural level, the difference between Aboriginal and Western traditions is a
difference in the perception of one’s relationship with the universe and the Creator. For instance, in
the Judeo-Christian tradition:

[Mankind was told to] fill the earth and subdue it, rule over the fish in the sea, the birds of heaven, and
every living thing that moves upon the earth.1

In contrast, Ojibway thought believes that man does not hold "dominion" over the earth and all its
creatures. In fact, man is the least important entity in creation.

Creation came about from the union of the Maker and the Physical World. Out of this union came the
natural children, the Plants, nurtured from the Physical World, Earth, their Mother. To follow were
Animalkind, the two-legged, the four-legged, the winged, those who swim and those who crawl, all
dependent on the Plant World and Mother Earth for succour. Finally, last in the order came
Humankind, the most dependent and least necessary of all the orders. 2

The differences between these two worldviews account, in large part, for the differences in the
philosophy, purposes and practices of legal and justice systems. Each worldview is the basis for the
customs, manners and behaviour that are considered culturally appropriate. One’s individual or
cultural understanding of humanity’s place in creation, and the appropriate behaviour that
understanding dictates, pervade and shape all aspects of life.

Psychological and anthropological profiles of Ojibway, Dakota, Apache, Navajo and Cheyenne
subjects have identified recurring personality characteristics which seem to be culturally induced and
which are so universal that they could be equated with "primary Native values." 3

The seven traditional values of the Ojibway, or Anishnabe, are wisdom, love, respect, bravery,
honesty, humility and truth.4 A study of the psychological and behavioural patterns of the Sioux
identifies several central values for the Dakota people: conformity with the group and harmony within
it; concentration on the present; ability to make personal decisions; reluctance to show emotions;
reverence for nature even while using it; and constant awareness of God. 5 The four great virtues of
the Oglala Dakota, taught in the Sundance, are bravery, generosity, fortitude and integrity. 6 Apache
beliefs and values can be stated as: respect for the autonomy of the individual; non-interference;
desire for harmony in interpersonal relations; respect for individual freedom; and cooperation and
sharing.7

The basic values of Cheyenne culture are: respect for the spirit world; desire for harmony and well-
being in interpersonal relationships; desire for harmony and balance with nature; bravery and mastery
of self; generosity, sharing and cooperation; individual freedom and autonomy consistent with
cooperation and collective well-being; and humility and respect in all relationships. 8

None of these values would be found inadequate or inappropriate by the dominant Canadian society;
the same or similar values exist within most of the world’s cultural traditions. However, European-
Canadian society has developed conventions which allow some traditional ethical and moral values to
be separated, at least temporarily, from everyday life. Aboriginal North Americans tend not to do so.

An obvious example is the ease with which a member of the dominant society can plead not guilty to
a charge for which that person, in fact, is responsible. In the Western tradition, the plea is not seen as
dishonest; it is understood as a conventional response to an accusation, based on the doctrine that
people are not required to incriminate themselves and that it is up to the prosecution to prove guilt. In
Aboriginal societies, to deny a true allegation is seen as dishonest, and such a denial is a repudiation
of fundamental and highly valued standards of behaviour. As well, the European concept of "guilty/not
guilty" runs counter to most Aboriginal philosophy, so much so that Aboriginal societies have no
words for "guilty" or "not guilty" in their languages because they have not developed these
concepts. TOP

 
The Meaning of Justice TOP

At the most basic level of understanding, justice is understood differently by Aboriginal people. The
dominant society tries to control actions it considers potentially or actually harmful to society as a
whole, to individuals or to the wrongdoers themselves by interdiction, enforcement or apprehension, in
order to prevent or punish harmful or deviant behaviour. The emphasis is on the punishment of the
deviant as a means of making that person conform, or as a means of protecting other members of
society.

The purpose of a justice system in an Aboriginal society is to restore the peace and equilibrium within
the community, and to reconcile the accused with his or her own conscience and with the individual or
family who has been wronged. This is a primary difference. It is a difference that significantly
challenges the appropriateness of the present legal and justice system for Aboriginal people in the
resolution of conflict, the reconciliation and the maintenance of community harmony and good
order.9 TOP

 
Aboriginal Concepts of Law TOP

There were and are Aboriginal laws. There were and continue to be Aboriginal governments with
lawmaking powers and with provisions to enforce those laws. There were and are Aboriginal
constitutions that are the supreme "law of laws" for some Aboriginal peoples and their nations.

Examples of such indigenous governments and their laws exist around the world. In the United
States, tribal governments have long been recognized by U.S. courts as "domestic, dependent
nations" with the inherent power to enact such laws as they deem necessary. We have described how
these laws are interpreted and enforced in our chapter on Aboriginal justice systems.

No society can exist without law. Laws grow from the customs, traditions and rules of a society of
people. They exist to inform people what that particular society considers to be acceptable and
unacceptable.

Many non-Aboriginal writers in the past have regarded Aboriginal societies through the stereotypes
and cultural biases they held at that particular time, or that they accepted as "true" from the time of the
original account. These histories, for the most part, still comprise most of the history courses taught in
Canadian schools, from elementary school to university. One such writer was Diamond Jenness,
whose books were and still are referred to widely in many schools and universities as authoritative
accounts of Aboriginal societies.

In the absence of chiefs and of any legislative or executive body within the tribes and bands, law and
order depended solely on the strength of public opinion. There were no written laws, of course; merely
rules and injunctions handed down by word of mouth from an immemorial antiquity, and more
temporary taboos operative during the lifetime of an individual. Persuasion and physical force were
the only methods of arbitrating disputes, social outlawry or physical violence the only means of
punishing infractions of the moral code or offences against the welfare of the band or tribe....

Fear of the blood-feud was a powerful restraint on murder, and social disapproval, more keenly felt in
small communities than in large, checked the commission of many lesser crimes. Strangers, however,
even people of a neighbouring tribe, might be robbed or killed with impunity; they had no rights,
unless they married into a band or placed themselves under the protection of some powerful family. 10

Such attitudes about Aboriginal people and the stereotypes they promote continue to persist,
regardless of how much one might hope they would be out of favour or distasteful in today’s society.
But they seem embedded firmly in Western culture. They spring from centuries-old theories,
philosophies and policies that form a worldview through which Western man has perceived and
interpreted other cultures.

Recently, however, more and more historians are seeking to divest historical accounts of past
stereotyping and cultural bias in order to present a more realistic, more accurate and, perhaps, more
fair version of history. This more recent account of Aboriginal society in Canada describes almost the
same situation as does the previous author, but from a more neutral viewpoint:

Europeans’ pronouncements that Indians had no government were contradicted by their practice of
dealing with Indian chiefs through the protocol of diplomacy with sovereign states. The bulk of
evidence about Indian communities implies structures of political association irreconcilable with
assumptions of anarchy. From anthropology comes the root conception of “kinship state”, a
community of families and clans in which some of the ordering functions of society are performed by
the kin groups individually while others are assigned to officers and councillors chosen cooperatively.

In this structure, as European observers were quick to notice, there was no law in the European
sense, and no specialized apparatus of law enforcement. Binding decisions were made by legitimate
officers, however, and before the intervention of Europeans eroded the chiefs’ authority there were
forceful sanctions for both occasional decisions and enduring customs. In a community where every
man bore arms no need existed for a corps of specialized police; any man could be appointed to act
guard or do executioner’s duty. Early seventeenth-century observers reported that the paramount
chiefs of the tribes sometimes inflicted corporal punishment upon criminals with their own hands.
Families also bore responsibility for protecting kinsfolk, and the accompanying threat of vengeance
sanctioned by custom proved an effective deterrent to potential wrongdoers. Such sanctions in their
social context were more effectual than European procedures of criminal justice; Adriaen Van der
Donck wonderingly noticed “how uncommon” crimes were among the Hudson River Indians. “With
us,” he continued, “a watchful police is supported, and crimes are more frequent than among them.”
Not recognizing the sanctioning functions performed by means that he had himself described, he was
baffled to understand how there could be so little crime “where there is no regard paid to the
administration of justice.” A lawyer himself, Van der Donck could recognize due process only when it
appeared in the forms to which he had been trained. That fault was shared by other Europeans
contemporary with himself and in following generations. 11

Regardless of whether the laws of Aboriginal societies conformed to the preconceptions of

Europeans, there were laws and a system of sanctions that allowed Aboriginal people to function in a
coherent and orderly fashion. Aboriginal people could hardly be characterized, as Jenness implied, as
living in anarchy or having a system of "social outlawry."

Indian tribes were internally more peaceful than European nations partly because of the kin-oriented
sanctions pervading Indian villages, as distinct from the greater impersonality of European social
relationships, and partly because Indian custom defined and punished fewer crimes than European
law....

The same customary sanctions were notably tolerant of many sorts of behaviour that Europeans
classed as crime, especially regarding deviant sexual and religious conduct. There was no crime of
fornication or “unnatural vice” among Indians, nor was there any heresy as that was defined by
European law. All sex relations except rare cases of rape were personal matters outside the
jurisdiction of sachem and council, and religious belief was totally personal.... Indians knew nothing of
the whole class of offences called by European lawyers “crimes without victims”. When one considers
the floggings, jailings, hangings, torture and burnings inflicted by European states for the multitude of
crimes that did not even exist in Indian society, one becomes painfully aware that an incalculably
great proportion of European violence against persons was inflicted by the very agencies whose
ostensible function was to reduce violence.12

This does not imply that Aboriginal societies were free of crime or criminal activity. There were laws
against certain types of behaviour and, inevitably, as with all laws, they would be broken. However,
the types of behaviours that were considered objectionable or aberrant might have been different from
those identified by European societies. The manner in which Aboriginal people imposed sanctions
was different too. This was to be expected, after all, since they sprang from a whole different world
which had evolved entirely different societies from those in Europe.

Social control rested in kinship. Among native cultures the means of control was in the close contacts
of their members. The sanctions of ridicule, avoidance and shame were effective means to check
those deviants who fell into behavioural lapses. Internal, unofficial communication was the process. 13

These types of sanctions suited most misbehaviours within a small, tightly knit group of people who
often were family members. However, some crimes required more serious sanctions than mere
scolding or ridicule. As in European societies, some crimes required the complete removal of the
criminal from society. In most Aboriginal societies, this meant banishment. In such close, family-
oriented societies, where survival depended upon communal cooperation, such sanctions were
considered a humane alternative to death, no matter how traumatic they may have been to the
offender.

However, there were other behaviours that Aboriginal societies recognized as crimes. Again, the
reasons why Aboriginal people considered such behaviour criminal differed from the reasons
perceived by European societies. So did the manner in which Aboriginal people sought to resolve
such disruptions to their societies. These differences were frequently looked upon with a certain
amount of disdain by Europeans who often interpreted the actions of Aboriginal people through their
own cultural values and biases.

The French were frequently critical of the Huron for the lenient attitude they took towards thieves. The
simplicity and relative impermanence of Huron possessions, and the sharing of goods and housing
among extended families, probably made ownership intrinsically a matter of less concern to them than
it was to Europeans (Herman 1956; Stites 1905). More importantly, however, because of the semi-
public nature of Huron dwellings and the lack of any formal policing in their villages, there was little
that could be done to protect movable possessions against theft. The main concern of the Huron was
therefore to minimize the disruptive consequences of quarrels that might arise from such actions.

This was done by defining theft very narrowly, as the taking of goods forcibly from an individual or
from inside a longhouse without permission. In theory, a person was entitled to carry off anything he
found lying about unattended. In order to protect their valuables, both from fire and thieves, the Huron
either carried them around with them or hid them in caches dug into the soil beneath their houses.
The Huron did not fine or penalize a thief, nor did they permit a man from whom goods had been
stolen to reclaim them without first inquiring how someone else had come to possess them. A refusal
to answer constituted an admission of guilt. If a man could prove who had robbed him, he and his
relatives were socially sanctioned to go to the thief’s longhouse and carry off everything on which they
could lay their hands. Hence, relatives of a person who had stolen very little might find themselves
bruised and despoiled. Again, pressure was put on kin groups to enforce good behaviour among their
members.14
Treason and the practice of witchcraft, or the use of "bad medicine" in order to inflict injury upon
another, also were treated as serious crimes. Treason was seen as the betrayal of the family group,
or clan, and as such almost always required the death penalty. Witchcraft was a much more difficult
activity to prove and it was handled in a more delicate manner. The person using witchcraft might
have to pay some form of compensation. If, however, the person refused to compensate the
complainant, the offender might face a death penalty. But these were extreme situations.

There was one other serious category of crime. The manner in which it was handled within Aboriginal
societies shows the philosophy underlying the way in which Aboriginal people viewed law and justice.

In theory, murder placed an absolute obligation upon the kinsmen of the dead man to seek revenge
by clamouring for the slaying of either the murderer or someone closely related to him. The obligation
fell particularly upon the clansmen of the murdered person, that is, upon his sisters, mother’s brothers,
and sisters’ sons.... Depending on the degree of relationship between the murderer and the murdered
man, a killing might give rise to a prolonged blood feud between the clan segments, villages, tribes, or
even confederacies to which they belonged. Thus blood feuds varied in scale from family quarrels to
major wars. The Huron were well aware that no tribal organization and no confederacy could survive if
internal blood feuds went unchecked. One of the basic functions of the confederacy was to eliminate
such feuds among its members; indeed, between Huron, they were regarded as a more reprehensible
crime than murder itself.15

Instead of bloody and disruptive feuds within the society, Aboriginal people settled upon a system of
atonement and reparation by the offender to the victim. The payment would be borne by all members
of the offender’s clan or family and it would be shared by all members of the victim’s clan or family.
Only if such payment were refused did the clan have the right to resort to violence or arms.

The amount of the compensation could vary. The compensation for a crime against a chief or an
elder, for example, was greater than that paid to a person of lower rank. The compensation for a
crime against a woman was greater than that against a man. Since the penalty would be paid by the
offender’s clan as a whole, and not merely by the individual offender, repeat offenders could expect to
receive less and less support from their clan for their crimes. In this way, the clan or family, through
peer pressure, would regulate behaviour within itself and exert influence throughout the society.

By making criminal activity a collective responsibility of a tribe, village or a clan, Aboriginal people
were able to impose law and order without resorting to capital punishment or other harsh forms of
sanctions. The philosophy in Aboriginal society was for all parties to acknowledge the crime, allow for
some process of atonement, and install a system of reparation or compensation in order to restore
harmony to the community.

But even more to the point, Europeans and Aboriginal people viewed the same crime of murder in
different ways. The two groups perceived the other’s system of justice as inconsistent, incoherent and
incomprehensible.

Of crimes common to both societies, murder requires special notice. It was conceived of differently by
Indian and European and was therefore punished by different processes. In Europe murder was an
offence against the state; among Indians it was an offence against the family of the victim. European
law demanded the murderer’s life as atonement to the state; Indian custom made his life forfeit to his
victim’s family. In Europe, the state apprehended the murderer; among Indians it was the family’s
obligation to do so. European observers tagged the Indian custom “revenge” and blathered much
about the savagery revealed by it. Yet, as compared to the state’s relentlessness, the tribe provided
an institution carefully and precisely designed to stanch the flow of blood. The obligation of blood for
blood could be commuted into a payment of valuable goods by the murderer’s own kin-folk to the
relatives of his victim. This custom (which had been known centuries earlier in Anglo-Saxon England
as wergild) was a widespread stabilizer of Indian societies, forestalling the development of obligatory
revenge into exterminating feuds. Although the term feud has been used freely by the condemners of
savage society, Marian W. Smith has been unable to find the phenomena properly denoted by it.
“True feud,” she remarks, “in its threat of continued violence between particular groups, is surprisingly
rare in the New World.”
Europeans understood the wergild custom and used it themselves in their dealings with Indians, but
only unilaterally. Europeans would pay blood money to avert Indian revenge for the killing of an
Indian, but Indians were not permitted to buy absolution for the killing of a European. In the latter case
the Europeans demanded the person of the accused Indian for trial in a European court. In the event
of nonapprehension of the suspected culprit, mass retribution might be visited upon his village or tribe.
The savagery of revenge, therefore, was simply a semantic function of its identification with an Indian;
European revenge was civilized justice.16

The underlying philosophy in Aboriginal societies in dealing with crime was the resolution of disputes,
the healing of wounds and the restoration of social harmony. It might mean an expression of regret for
the injury done by the offender or by members of the offender’s clan. It might mean the presentation
of gifts or payment of some kind. It might even mean the forfeiture of the offender’s life. But the matter
was considered finished once the offence was recognized and dealt with by both the offender and the
offended. Atonement and the restoration of harmony were the goals—not punishment.

It is this strong, even central, cultural imperative to prevent or deter violent acts of revenge or
retribution that runs through all these accounts. Aboriginal societies felt it important that offenders
atone for their acts to the aggrieved person and the victim’s family or clan. European society
demanded the state punish the offender. In the Aboriginal justice system, once the atonement had
been made and the offence recognized, the matter was forgotten and harmony within the community
was considered restored. In the European justice system, the offender "pays his debt" to society,
usually by going to jail. Rarely is there atonement to the person or persons injured. There is little
restoration of harmony within the community.

This form of Aboriginal justice exists, to some extent, in Aboriginal communities to this day. Here is an
example of one person’s experience:

In March 1987 the city of Whitehorse hosted The Third Annual Northern Conference. It was convened
to examine the delivery and impact of justice services in remote Indian and Inuit communities.É One
of the sessions explored mediation techniques to see if they might be more appropriate than our
adversarial courts. Three participants were selected to form a panel to mediate a fictitious dispute
between a young lad and the owner of a store which had been broken into. One of the panel
members was Charlie Fisher, an Elder from the Islington Reserve at Whitedog, and Ontario’s first
Native Justice of the Peace.É

He began by getting rid of the chairs, then the long table which had separated the three panelists from
the disputants. Everyone sat in a circle, as equals. He then required two further participants to act as
Elders “representing” the two disputants. As he continued, it became clear that it was not only the
physical format or cast of participants which differed, but also its process and its very function.

The boy and the store owner never spoke, not even to the panel. There was no discussion whatever
about the break-in itself, about the theft and damage, about how each party felt about the other, or
about what each might do to set matters straight. Further, the panel would not impose restitution,
punishment or any consequence at all. They would not even discuss the issue of consequences.

Once those in attendance understood what was NOT going to take place, there was only one
question left: “why, then, is there a panel at all?”

Charlie Fisher then defined the purpose of that traditional forum. It was used to rid themselves of what
he called “bad feelings”. Each would be “counselled” by his representative Elder, privately, until his
spirit was “cleansed” and made whole again. At convocations of the panel the representing Elder
could signify that such “cleansing” had been achieved by touching the peace pipe. The panel would
convene as often as necessary until both Elders so signified. At that point, the peace pipe could be lit
and passed to all. As far as the community was concerned, that would be the end of the matter.
Whether the two disputants privately arranged recompense of some sort was entirely up to them. Both
had been “restored to the community and to themselves” the moment the pipe was passed. 17
The author, Rupert Ross, is a Crown attorney in northern Ontario. He describes the non-Aboriginal
participants as "perplexed" by the demonstration they had just witnessed. There was no "fact-finding,"
no allocation of blame or responsibility and "no discussion (much less imposition) of consequences."
Perhaps, his group surmised, there was little need to do so in such small, tightly knit Aboriginal
communities where public opinion carried so much weight. Or maybe a system that doesn’t rely on
punishment also doesn’t need "fact-finding" to ensure an innocent person is not punished by mistake.

In the end, the author concluded that "such explanations are superficial in the extreme." The real
answer may lie deep within the "basic ethics" of the traditional culture itself.  TOP

 
Aboriginal Culture TOP

In trying to describe Aboriginal cultures to non-Aboriginal Canadians, it is important to recognize the

difficulty of such a task. Imagine trying to describe Canadian culture to a non-Canadian. Canadian
society is not homogeneous; there are many peoples, many cultures and languages, and many
regions. Similarly, Aboriginal people are many peoples, cultures and languages in many regions.

Furthermore, any attempt at description will tend to be an over-simplification and will carry the risk of a
certain amount of stereotyping. Once that is understood, it is important to realize how culture can
influence one’s cultural characteristic, cultural "ethic" or "rule of behaviour." A cultural "ethic" or "rule
of behaviour" may be described as a behavioural characteristic or quality that is so ingrained, so
prevalent, within an identifiable or specific group of people as to become almost a trait. Again, we
warn about the risk of stereotyping.

Aboriginal people, it is important to stress, are not all the same. For instance, the Cree in northern
Quebec have a completely different language, culture and society than the Mohawk only a few
hundred miles away in southern Quebec. The Cree are patriarchal, which means they trace their
lineage, families and clans through the male parent. The Mohawk, on the other hand, are matriarchal
and determine their heritage through the female parent. The Cree are a hunting, trapping and fishing
society. The Mohawk are an agricultural people. Although both peoples live in the province of
Quebec, they are, perhaps, as different from one another in language, culture and social
characteristics as the Spanish are from the Norwegians in Europe.

In Manitoba, similar cultural differences exist between the Ojibway and the Chipewyan and between
the Dakota and the Metis, and even within a tribe of people, such as the Cree. For example, there are
subtle differences in social characteristics between the Swampy Cree of northwestern Manitoba and
the plains Cree in Saskatchewan.

Yet, it may be argued, all these peoples share certain characteristics, as well. These similar
characteristics are examples of Aboriginal ethics or rules of behaviour. Aboriginal ethics and rules of
behaviour are "present in some form in all tribes of North America," according to Dr. Clare Brant, a
Mohawk psychiatrist who has studied and written in this area. 18

According to Dr. Brant, Aboriginal ethics become most pronounced when contrasted to the behaviours
considered "normal" by most Canadians. These behaviours are sometimes explained by non-
Aboriginal Canadians in terms of popular stereotypes about Aboriginal people, or worse. From his
own profession, he gives this example:

Many general psychiatrists see Native children and adolescents in assessments, and often find them
passive, difficult to assess, and not forthcoming. This behaviour, which affects the individual Native
child’s attitude and performance in an assessment situation, is understandable in view of the child’s
cultural background. The psychiatrist may, at times, misinterpret the behaviour as resistance, passive-
aggression, opposition, depression, or withdrawal. The general psychiatrist’s failure to recognize the
derivatives of the individual child’s cultural heritage as they affect his behaviour in a clinical situation
may result in unperceived errors in diagnosis, in formulation, and in treatment. For example, overuse
of antidepressants and the all too frequent diagnosis of personality disorders may occur. This may
turn what is intended to be a helpful encounter into one that is not useful or even traumatic for the
patient. Such encounters will no doubt also be frustrating for the clinician. 19

Dr. Brant’s description of the misunderstandings between doctor and Aboriginal patient is similar to
the cultural miscues our Inquiry has heard about for Aboriginal people in the justice system. They
often result from a lack of knowledge about Aboriginal people and their cultures. Such
misunderstandings can be just as disastrous for an Aboriginal person in the justice system as in the
medical system.

When [Aboriginal people] refuse to follow the exhortations of our rules, we judge them as deficient in
rule-obedience or, worse still, rule-less. In our ignorance, we have failed to admit the possibility that
there might be rules other than ours to which they regularly display allegiance, an allegiance all the
more striking because it is exercised in defiance of our insistent pressures to the contrary. 20 TOP

 
Cultural Imperatives TOP

A cultural imperative, or rule of behaviour, is a cultural value that dictates the actions and reactions of
Aboriginal people to given situations. For instance, in general, Aboriginal people are non-
confrontational. Aboriginal people usually will seek to resolve disputes or to make their opinions
known to others in ways that avoid direct confrontation. Confrontation violates one of several
Aboriginal cultural rules of behaviour that deem the preservation of harmony paramount, rather than
personal satisfaction or gain.

While such cultural differences between Aboriginal people and non-Aboriginal people have been
noticed and remarked upon by various non-Aboriginal writers for hundreds of years, few people have
tried to explore and explain these differences in terms understandable to the general population.
Instead, these differences have been explained away in terms of handy stereotypes and vague
generalizations, to the detriment of real understanding. The justice system has been no less
insensitive and ignorant of these differences than other sectors of society.

Although there is an awakening to the fact that the over-representation of Native people in the jails of
Canada may result from cultural conflicts between the Canadian legal system and the Native people,
there is still a lack of acceptance by the legal system of the conceptual conflicts faced by Aboriginal
people coming before the courts.21

According to Brant, there are at least 10 distinct Aboriginal cultural ethics or rules of behaviour, and
perhaps there are even more. He categorizes them under three main headings. Brant calls the first
category of Aboriginal behaviours "conflict suppression." The second he calls "projection of conflict"
and the third is "humiliating superego."

The individual and group survival of this continent’s Aboriginal Plains, Bush and Woodlands people
required harmonious interpersonal relationships and cooperation among members of a group. It was
not possible for an individual to survive alone in the harsh natural environment but in order to survive
as a group, individuals, living cheek by jowl throughout their lives, had to be continuously cooperative
and friendly.22

Brant believes there are four major ethics or rules of behaviour and four lesser ones in the broad
category of "conflict suppression" that continue to influence the lives of Aboriginal people today. He
says they grew out of the need of extended families, clans, villages or tribes to maintain harmony and
ensure survival of the group. TOP

 
Ethic of Non-Interference TOP
One of the most important is the ethic of non-interference. It "promotes positive interpersonal
relationships by discouraging coercion of any kind, be it physical, verbal or psychological." It stems
from a high degree of respect for every individual’s independence and regards interference or
restriction of a person’s personal freedom as "undesirable behaviour." 23

The ethic of non-interference is one of the most widely accepted principles of behaviour among Native
people. It even extends to adult relationships with children and manifests itself as permissiveness. A
Native child may be allowed at the age of six, for example, to make the decision on whether or not he
goes to school even though he is required to do so by law. The child may be allowed to decide
whether or not he will do his homework, have his assignments done on time, and even visit the
dentist. Native parents will be reluctant to force the child into doing anything he does not choose to
do.24

This ethic is one of the most difficult for non-Aboriginal people to understand because it often conflicts
with their conceptions of "accepted" practice. In European-Canadian society, for instance, children are
told what to do, when to do it and what will happen if they do not do it. Advice is offered freely and
regularly, whether it is welcomed or not. Children are expected to conform, rather than to experiment,
and to learn by rote, rather than by innovation.

The importance of the ethic of non-interference helps to explain the use of stories in Aboriginal
societies. If advice is given, it is usually in the form of a story. It lays out a situation with options. The
advice is contained in the story and the listener is free to understand it as he or she wants to, and to
act or to not act on that advice accordingly.

This rule of behaviour is still strongly evident in Aboriginal communities. Where it once was necessary
to ensure the survival of a group, this ethic continues to be functional to maintain harmony within the
community. It demands people show respect for other people’s personal privacy. It promotes
individual self-reliance and responsibility with assurances that others will not intercede or interfere in
the individual’s personal affairs. Finally, it encourages people to make decisions, and accept
responsibility for those decisions, starting at an early age. TOP

 
The Rule of Non-Competitiveness TOP

The second ethic Brant describes is the rule of non-competitiveness. It exists to suppress internal
conflict within a group by "averting intragroup rivalry." It also acts to prevent the embarrassment "that
a less able member of the group might feel" while involved in a group activity. Brant says this ethic
often is misinterpreted by many European-Canadians as an inability to compete. However, he says,
success or attainment of goals for Aboriginal people stress a more cooperative approach, as opposed
to the imposition of one person’s will upon the group, or the attainment of personal success at the
expense of group needs.25 TOP

 
Emotional Restraint TOP

One of Brant’s theories concerns the ethic he has called the "exercise of emotional restraint." It is a
complement to, and an extension of, the ethics of non-interference and non-competitiveness. It too
developed out of a need to control outbursts of emotions that might cause disruption in tightly knit
groups or families. However, he warns, it is a double-edged sword.

On the positive side, it promotes self-control and discourages the expression of strong or violent
feelings. However, emotions such as joyfulness and enthusiasm are suppressed along with anger and
impulses to destructiveness.26
Brant says this ethic may be "problematic" for Aboriginal people in today’s society when "repressed
hostility," against distant government bureaucracy, for instance, "often explodes into the open under
the influence of alcohol and inappropriately visited upon by innocent bystanders such as a spouse,
child or casual acquaintance." It may also lead to problems in dealing with grief from separation or
loss. He quotes one study in which "Forty-four percent of the Native people who consulted a
psychiatrist ... were suffering from grief reaction of one kind or another." 27 TOP

 
Sharing TOP

Sharing is another rule of behaviour exhibited by many Aboriginal peoples. In some instances, it was
institutionalized in ceremonies to ensure that no one became too rich or powerful and, conversely,
that no one became too poor or too powerless. Such ceremonies included the Potlatch of the West
Coast and the Sundance of Manitoba. However, it was, and remains, a daily feature of Aboriginal
societies in a less formal fashion. TOP

In Aboriginal times, when this principle originated among Native peoples, group survival was more
important than individual prosperity; consequently, individuals were expected to take no more than
they needed from nature and to share it freely with others. Of course, this is somewhat akin to the
central principle of Marxism and Christianity. Native people however, regard it neither as a political
ideology nor as a religious requirement. It was and still is simply a part of the Native way of life.
Although the main function was to help ensure group survival in the face of the ever present threat of
starvation, it also serves as a form of conflict suppression by reducing the likelihood of greed, envy,
arrogance and pride within the tribe.28

These four major Aboriginal ethics or rules of behaviour (non-interference, non-competitiveness,

emotional restraint and sharing) form the basis of daily relations within Aboriginal communities. But
they work with four supplementary ethics: a concept of time, the expression of gratitude and approval,
social protocols, and the teaching and rearing of children. TOP

 
Conflicts Arising from Aboriginal Cultural Imperatives TOP

Aboriginal people have developed their own views and customs, or rules of behaviour, that are
sometimes in conflict with those of the dominant society. For example, Aboriginal people have a very
different concept of time from that of most other Canadians. It is referred to jokingly by Aboriginal
people as "Indian time" or "Metis time." But it is simply an acknowledgement that events will take
place when it is the proper time, after the required social protocols have been followed, or as long as
they do not interfere with other duties or activities.

[T]he Native person has an intuitive, personal and flexible concept of time. It may have had its origin
in an age when the activities of Native people were regulated by the seasons—by the sun, the
migratory patterns of birds and animals, and a changing food supply.... Today, the Native concept of
time seems less a principle for living with nature and more of a manifestation of the need for
harmonious interpersonal relationships. For example, Tom, Dick and Harry may not make it to an 8
pm meeting because they have other responsibilities they are unable to leave because the time is not
right. If they have a particular interest in the matter under discussion, the meeting will not be started
until they arrive or until some message is received that they are not coming. To start without them
might offend these esteemed members of the community.... In another, more social context, it might
be rude and inconsiderate to start a dance at a wedding celebration without all the brothers and
sisters of the bride and groom being able to take part in the first waltz. 29

To illustrate the relevance in the justice system of such cultural differences between Aboriginal and
non-Aboriginal people, here is an example provided by a Micmac court worker in Nova Scotia:
Now time is usually divided in the Micmac world according to the positioning of the sun. Now if you
are a Micmac person being examined or cross-examined on the witness stand, the lawyer might say,
“Well, did you see this happen at seven o’clock in the morning?” And the Native person would answer
to me, “Yes, no he would say, “Wej kwap niaq” which means the sun has just risen. And so I would
turn around and I would give that statement to whoever was asking the questions. And then the
Prosecutor not being satisfied with this answer, would say, “yeh, but ... was it seven o’clock in the
morning?” And the Native person would say, “Well, you know the sun had risen.” And simply because
seven o’clock in the morning in the summer and seven o’clock in the winter are different in the sense
that the sun rises at different times. So he would find difficulty in answering—answering the question.
And sometimes he would eventually say, “Yes, it was seven o’clock in the morning” just to get out of
that situation.30 TOP

 
Other Rules of Behaviour TOP

There are rules governing nearly every form of social behaviour. There is a rule dictating the proper
way to commend another or express appreciation so as not to embarrass that particular person or
demean the less-than-adequate accomplishment of another person. There are rules governing proper
etiquette or social protocol. "Native society has highly structured and demanding rules of social
behaviour. There are rules about everything. Many, however, are specific to individual villages, clans,
tribes and bands, a fact that can cause problems, given the ethic of non-interference." 31

There is even a rule that defines the proper method of teaching Aboriginal young people or children.
Unlike European-Canadians, Aboriginal people teach their young people through example. They allow
the children to set their own goals and to learn that which the children feel is important or worthwhile.
This method also respects the other rules of behaviour restricting interference and avoiding conflict.
This method of teaching has often been misinterpreted or misunderstood by European-Canadians as
a sign of poor parenting.

However, it conveys information about the proper behaviour to the young person while it promotes
self-reliance and responsibility. It also engenders respect for the rules of society while it reinforces the
importance of role models, parents and other people doing the teaching—the elders in the community.

Brant surmises these ethics or rules of behaviour are reinforced within Aboriginal society by two other
factors. The first is "the projection of conflict," or the removal of blame to the outside, away from the
immediate family or clan and towards some unseen and distant villain. This villain might take the
shape of a witch or a monster and originally was used to discipline people by implied threat. "Anger
provoked them, so children were taught from a very early age never to engage in angry behaviour.
Anger was considered not only unworthy and unwise, but dangerous as well." 32

The second factor is the use of teasing, shaming and ridicule as a means of social control to
discourage unwelcome behaviour and encourage the maintenance of harmony. On one hand, the use
of such humiliation encouraged closeness and kept young people attached to the group, promoting
group unity and survival. On the other hand, it drove the more reckless, bold or rebellious away from
the group which, again, promoted stability within the group. It also emphasized the use of peer
pressure to reinforce the rules of society upon the individual.

Again, we stress that these theories of human behaviour are, as Brant himself warns, "far from
complete." They may lend themselves to oversimplification and stereotyping. Brant recognizes this
danger and presents them not as confirmed fact, but as theories to encourage debate and to
"promote the further demystification of Native behaviour." We do so as well. We present them to
illustrate the vast differences in worldviews and in psychological behaviours between Aboriginal and
non-Aboriginal peoples.

We do, however, believe that Dr. Brant’s work is valuable as a tool for understanding how the cultural
values of Aboriginal people determine their actions in certain situations. This is an understanding that
even many Aboriginal people lack. Brant’s findings become even more critical when one considers the
impact that non-Aboriginal systems of government, policies and programs have had upon Aboriginal
people, due to this lack of knowledge. To a large extent, this same knowledge has determined the
manner in which Aboriginal people have reacted to government injustices.

In addition, the suppression of the rights of Aboriginal people to perform certain ceremonies and to
adhere to their cultural imperatives has contributed to the social disruption in their communities. This
disruption has interfered with the ability of Aboriginal people to deal with the various pressures
confronting them. It also has denied them culturally appropriate ways of maintaining harmony and
limiting social disruption.

Aboriginal cultures have, and continue to practise, ceremonies which encourage the controlled
release of emotions in an appropriate manner. There are "grieving" ceremonies in which Aboriginal
people are encouraged to deal with loss and separation. The "shaking tent" and "sweat lodge"
ceremonies were used in this manner to "purify" or rid a person of latent hostilities and anger.

Sports, games and social functions allowed individuals to express anger, competitiveness or
happiness in socially acceptable ways. There were "healing" circles in which the most deeply felt hurts
were explored and dealt with within the context of traditional teachings. There were elders who
counselled and advised individuals and the tribe on how to resolve disputes and relieve tensions.

What has been suppressed by laws and other religions in the past are these traditional mechanisms
by which Aboriginal people have dealt with personal problems and pressures. Many of these
ceremonies were outlawed by governments until very recently. These ceremonies are still dismissed
or debased by some people, even today. The disruption of Aboriginal societies, for the most part, has
not interfered greatly with such rules of behaviour, but it has interfered greatly with the means by
which Aboriginal people maintained personal balance and well-being. TOP

 
Cultural Imperatives and Systemic Discrimination TOP

Until we realize that [Aboriginal people] are not simply “primitive versions of us” but a people with a
highly developed, formal, complex and wholly foreign set of cultural imperatives, we will continue to
misinterpret their acts, misperceive their problems, and then impose mistaken and potentially harmful
“remedies.”33 [Emphasis in original]

It is exactly this misunderstanding that is at the heart of systemic discrimination. The justice system
assumes much about the people who appear before it. The system assumes all persons will use the
same reasoning when protecting their interests, when choosing their pleas, when conducting their
defences, when confronting their accusers, when responding to detailed questions, and when
showing respect and remorse to the court. It also assumes that punishment will affect all persons in
the same manner.

When the justice system of the dominant society is applied to Aboriginal individuals and communities,
many of its principles are at odds with the life philosophies which govern the behaviour of Aboriginal
people. The value systems of most Aboriginal societies hold in high esteem the interrelated principles
of individual autonomy and freedom, consistent with the preservation of relationships and community
harmony, respect for other human (and non-human) beings, reluctance to criticize or interfere with
others, and avoidance of confrontation and adversarial positions.

Methods and processes for solving disputes in Aboriginal societies have developed, of course, out of
the basic value systems of the people. Belief in the inherent decency and wisdom of each individual
person implies that any person will have useful opinions in any given situation, and should be listened
to respectfully. Aboriginal methods of dispute resolution, therefore, allow for any interested party to
volunteer an opinion or make a comment. The "truth" of an incident is arrived at through hearing many
descriptions of the event and of related, perhaps extenuating, circumstances.
Impossible though it is to arrive at "the whole truth" in any circumstance, as Aboriginal people are
aware, they believe that more of the truth can be determined when everyone is free to contribute
information, as opposed to a system where only a chosen number are called to testify on subjects
carefully chosen by adversarial counsel, where certain topics or information are inadmissible, and
where questions can be asked in ways that dictate the answers.

Because the purpose of law in Aboriginal society is to restore harmony within the community, not only
the accused has to be considered. Other people who have been or might be affected by the offence,
particularly the victim, have to be considered in the matter of "sentencing" and disposition.

In the Ojibway concept of order, when a person is wronged it is understood that the wrongdoer must
repair the order and harmony of the community by undoing the wrong. In most cases, the
responsibility is placed on the wrongdoer to compensate the wronged persons. This concept of order
makes the individual responsible for the maintenance of harmony within the society. Restitution to the
victim or victims is, therefore, a primary consideration.

The person wronged, bereaved or impoverished is entitled to some form of restitution. In the eyes of
the community, sentencing the offender to incarceration or, worse still, placing him or her on
probation, is tantamount to relieving the offender completely of any responsibility for a just restitution
of the wrong. It is viewed by Aboriginal people as a total vindication of the wrongdoer and an
abdication of duty by the justice system.

The accused also may have dependants who are involved in some way. Aboriginal people believe
care has to be taken so that actions to control the offender do not bring hardship to others. The
administration of justice in Aboriginal societies is relationship-centred and attempts to take into
account the consequences of dispositions on individuals and the community, as well as on the
offender.

The differences between Aboriginal processes and the processes of the Canadian justice system are
profound. The Canadian justice system, like other justice systems in the European tradition, is
adversarial. When an accusation has been made against an individual, legal advisers representing
plaintiff and defendant confront one another before an impartial judge or jury. Witnesses are called to
testify for or against the accused; that is, to criticize or explain the actions of another. Guilt or
innocence are decided on the basis of the argument that takes place between legal representatives.
Retribution is demanded if the person accused is considered guilty.

The concepts of adversarialism, accusation, confrontation, guilt, argument, criticism and retribution
are alien to the Aboriginal value system, although perhaps not totally unknown to Aboriginal peoples.
In the context of Aboriginal value systems, adversarialism and confrontation are antagonistic to the
high value placed on harmony and the peaceful coexistence of all living beings, both human and non-
human, with one another and with nature. Criticism of others is at odds with the principles of non-
interference and individual autonomy and freedom. The idea that guilt and innocence can be decided
on the basis of argument is incompatible with a firmly rooted belief in honesty and integrity that does
not permit lying. Retribution as an end in itself, and as an aim of society, becomes a meaningless
notion in a value system which requires the reconciliation of an offender with the community and
restitution for victims.

The same contradictions between Aboriginal values and the dominant justice system result in a heavy
burden being placed on Aboriginal accused, plaintiffs and witnesses who enter into the "white" justice
system. Accusation and criticism (giving adverse testimony), while required in the Canadian justice
system, are precluded in an Aboriginal value system which makes every effort to avoid criticism and
confrontation. "Refusal or reluctance to testify, or when testifying, to give anything but the barest and
most emotionless recital of events" appears to be the result of deeply rooted cultural behaviour in
which "giving testimony face to face with the accused is simply wrong ... [and] where in fact every
effort seems to have been made to avoid such direct confrontation." 34 In Aboriginal societies, it may
be ethically wrong to say hostile, critical, implicitly angry things about someone in his or her presence,
precisely what our adversarial trial rules require.
Plea-making is another area where the mechanics of the Canadian justice system are in conflict with
Aboriginal cultural values. Aboriginal individuals who, in fact, have committed the deeds with which
they are charged are often reluctant or unable to plead not guilty because that plea is, to them, a
denial of the truth and contrary to a basic tenet of their culture.

Some people have pointed out to our Inquiry that many Aboriginal people have trouble
comprehending the "white" concept of guilt or innocence before a court, in terms of their own culture.
There is no such concept in Aboriginal culture and so there are no words in their vocabulary for
"guilty" or "not guilty." This example comes from the Royal Commission on the Donald Marshall, Jr.,
Prosecution in Nova Scotia.

Q I was starting to ask you if you could explain to us the ... meaning of the word “guilty” in Micmac.

Francis: There really is no such word as “guilty” in the Micmac language. There is a word for “blame”.
So an Indian person who’s not as knowledgeable let’s say in the English language if he were asked if
he were guilty or not, he would take that to mean, “Are you being blamed or not?” and that’s one of
the reasons I found that Native people were pleading guilty is because they suspect that the question
was, “Is it true that you’re being blamed?” and the Native person would of course say, “Yes.” In other
words, but the real question being, “Are you guilty or not guilty?” and the answer of course would be
“Yes, I plead guilty,” thinking that’s blame. What they neglected to say was, “Yes, I’m guilty that I’m
being blamed but I didn’t do it.”35

Similar problems with language exist between Aboriginal people and the justice system in Manitoba.
We had this exchange with Art Wambidee, a court worker from the Sioux Valley First Nation:

Q You mentioned as well problems in interpreting some of the words that are used in court. That issue
was raised with us before by people in the north talking about the Cree language, that there is no
concept for “guilty” or “innocent”. It doesn’t translate into one word. Is that the same thing with your
language?

Art Wambidee: It’s the same thing, yes.

Q How would you, if you had to interpret “guilty” or “not guilty” for someone in your language? How
would you interpret that? What would you make them try to understand?

A Well, I guess that I’d sort of interpret it, “Did you do that, or didn’t you?”

A final example is the implicit expectation on the part of lawyers, judges and juries that people
standing accused before them should show remorse and a desire for rehabilitation. However,
Aboriginal cultural imperatives demand that they accept, without emotion, what comes to them.
Aboriginal people, therefore, might react contrary to the expectations of people involved in the justice
system. In the Aboriginal person’s powerlessness, he or she simply may wait passively, with head
respectfully bowed, to receive the judgment of the court. This attitude has been carried over into
Aboriginal behaviour within the justice system.

In his effort to honour those pleading his case, he makes every attempt to agree to their requests, (to)
give answers that please, and not to argue or appear adversarial. 36

Judges and juries can hardly be impartial when they misinterpret the words, demeanour and body
language of individuals. Witnesses who refuse to testify, and people accused of crimes who refuse to
plead and who show no emotion, are judged differently from those who react in ways expected by the
system. Their culturally induced responses are misunderstood, sometimes as contempt, and may
result in an unfair or inappropriate hearing and in inappropriate sentencing. To require people to act in
ways contrary to their most basic beliefs and their ingrained rules of behaviour not only is an
infringement of their rights—it is a deeply discriminatory act. TOP

 
Language Issues TOP

Lawyers, court communicators, family court workers, juvenile workers, Aboriginal community
members and other concerned people stressed to our Inquiry the pervasiveness of language
problems for Aboriginal people at every stage of Manitoba’s system of justice.

These issues are not merely of language; they go to the heart of our society’s obligation to ensure that
people understand their legal rights and obligations, the nature of any charges against them and any
legal proceedings affecting their rights. The right of all people to the use of a familiar language,
preferably their first language, is not always met. Canadian courts do not automatically provide
interpreters for Aboriginal people, nor do enforcement and corrections agencies. An even more
fundamental question, beyond this immediate and pressing omission, is whether Aboriginal people
understand the concepts behind the language used in the legal system, even when interpreters and
translators are used. TOP

 
Understanding Words TOP

On a mechanical level, there are obvious problems when the police, lawyers and the courts conduct
business in a language that is not the mother language, nor even perhaps the second language, of
the people involved. Translation and interpreter services often are not available. When offered, they
may be inadequate or even prejudicial.

On the philosophical level, there is the serious question of whether the legal terms of the dominant
society can be translated into Aboriginal languages. Even if that can be done, does the translation
actually convey the same concept to Aboriginal people in their mother tongue as it does to European-
language speakers?

Mechanical language problems have been identified at every step of the legal process. When
individuals are approached by police under what police officers consider suspicious circumstances,
they often cannot explain what may be, in fact, innocent situations. They may not understand the
reasons for their arrests or the explanations of their rights. Remarks and explanations made in
inadequate or broken English or French during arrest, transportation and booking have been
misunderstood by arresting officers and used to incriminate some Aboriginal people. As northern
paralegal Sylvia Grier told us, "Police reports were not accurate because of an inability of Aboriginal
speakers to explain the circumstances to the police."

Aboriginal people who do not speak a dominant language cannot ask to use a telephone or request a
public defender, or even ask for help to do so, if there are no translation services provided while they
are booked. Translation is not readily available during consultations between the people accused and
their lawyers. In the courtroom, according to Chief Philip Michel of Brochet, "by-standers are often
sworn in to act as interpreters … [with] no guarantee of proper communication or unbiased
translation."

It is obvious that defendants who do not speak English or French, or who do not speak the relevant
language well, will be at a disadvantage during courtroom proceedings. It is not so obvious that many
Aboriginal people who do speak a dominant language may have a command of that language which
enables them to function in most areas of life, but which is not adequate for dealing with formal
courtroom language. This problem is not restricted to Aboriginal peoples. Many lifelong, fluent and
highly articulate anglophones and francophones cannot deal with "legalese."

It is also apparent to observers that many people do not realize that they are missing or
misunderstanding parts of the proceedings. As we learned from our hearings, many are reluctant to
admit a language deficiency in public.
A fundamental right of all Canadians in the justice system ought to be the right to use a known
language, preferably their mother tongue. Obvious as this may seem, and in spite of the fact that
the Charter of Rights and Freedoms enshrines a person’s right to an interpreter, there is no program
to ensure that Aboriginal people have access to an interpreter in court, nor are they told they have a
right to one. Although there are a number of court communicators working in our courts, their mandate
is "to assist Native Peoples in the development of a better understanding of their rights, interests,
privileges, and responsibilities in relation to the criminal justice system. It is the role of the Court
Communicator to assist Native Peoples through the process and attempt to bridge any gaps which
may exist."37 In other words, their job is to interpret cultures, not languages, and their training
prepares them mainly to interpret the customs of the dominant society to Aboriginal peoples—not the
other way around.

Court communicators in the Manitoba program may provide interpreting services, but only unofficially,
"due to a lack of other available resources."38 Interpreting is not part of their role. Local people are
frequently hired as court interpreters, but many people see their services as inadequate because they
are untrained, not properly qualified, and can give no guarantee of impartiality or neutrality.

Apparently, the only interpreter/translator training program in use in Canada is the one in the
Northwest Territories. The program consists of a course and materials prepared for freelance and
government interpreters. It is designed to help them understand existing court procedures, language
and protocol.

However, translation problems are described within the context of English. The material does not deal
with the differing concepts of Aboriginal and dominant society approaches to law and justice. Many of
the inadequacies of the Legal Interpreter’s Handbook, the manual prepared for court communicators
in the Northwest Territories, are the result of ethnocentricity and cultural misunderstanding by the
authors.

The Manitoba Native Court Interpreter’s Manual has been judged by some Cree scholars and linguists
to be an adequate beginning to the process of translating legal language into Aboriginal languages.
However,

... problems encountered with the Court Manual and with the process of translating and verifying the
words requested were all the result of the difficulty of creating a vocabulary for which there is no
cultural concept in the language. The vocabulary has to be developed and agreed upon, then taught
to the people it will impinge upon.39 TOP

 
Understanding Legal Concepts TOP

There are really two types of misunderstandings that arise from the translation of terms from one
language into another. The first is easier to understand: some words simply do not translate directly
into an Aboriginal language. Much more difficult and, therefore, more prone to misunderstandings, is
the attempt to convey the concepts implied by technical legal words.

Take the word "truth," for example. "Truth" is a key concept in the Canadian legal system and, as
such, is considered definite and definable. One swears "to tell the truth, the whole truth and nothing
but the truth." There are well-defined sanctions for people whom the court determines are not telling
the "truth" or are committing perjury.

On the other hand, the Ojibway understanding of "truth" incorporates the concept that "absolute truth"
is unknowable.

When an Ojibway says “niwii-debwe”, that means he is going to tell “what is right as he knows it”. A
standard expression is “I don’t know if what I tell you is the truth. I can only tell you what I know.” 40
It is as a philosophical proposition that in saying a speaker casts his words and his voice as far as his
perception and his vocabulary will enable him or her, that it is a denial that there is such a thing as
absolute truth; the best and most the speaker can achieve and a listener expect is the highest degree
of accuracy. Somehow that one expression, “w’dab-ahae”, sets the limits to a single statement as well
as setting limits to truth and the scope and exercise of speech. 41

Truth and knowledge, to an Ojibway, are always relative. Individuals can say only what they have
observed or experienced, and are prepared to doubt whether they have done so accurately and
correctly. Culturally ingrained habits of respect for others and for other people’s opinions, of doubt
concerning one’s own rightness and righteousness, of willingness to be corrected, and of
unwillingness to set oneself up as an authority or expert, account for the readiness with which
Aboriginal witnesses appear to change their testimony.

An Aboriginal person challenged by someone perceived to be wiser, more powerful or more

knowledgeable may agree readily that perhaps the other person is right. The Aboriginal person, in
certain circumstances, is open to suggestions that he or she may have misunderstood, misperceived
or misheard the events that are under examination.

The proceedings of the Royal Commission on the Donald Marshall, Jr., Prosecution contain an
example of the Aboriginal understanding of the relativity of truth.

Q What about the questioning process, the questioning of a witness in the Courtroom, of a Micmac
witness?

Francis: That was another area in which I found to be just devastating towards Native people who
attempted to defend themselves in that—in almost all cases a Native person who was not that familiar
with the English language would work so hard to try to satisfy the person who was asking the
questions. If for instance, either a lawyer or a prosecuting lawyer was asking the questions to a native
person on the witness stand and was not satisfied with the answer that he or she received, would
continue to ask the question by checking a word here or there and asking the same question and the
native person would change the answer from, let’s say a “no” to a “yes” or a “yes” to a “no” ... simply
because he felt that whatever he was doing, he wasn’t doing it right and he would attempt to satisfy
the person asking the questions.

Q Regardless of the truth?

Francis: Regardless of the truth.42

The exchange, odd though it sounds to anglophone ears, illustrates the point that the lawyer or
prosecuting lawyer was searching for "absolute truth," a concept the witness’ culture does not accept.

From the time of his or her arrest until sentencing, the "truth," as revealed by the Aboriginal individual,
will be relative to his or her perceptions of the situation. This could very well mean many different
versions of the "truth": one during police interrogation, one in conversation with lawyer or lawyers, the
one known widely in the Aboriginal community and, finally, the one given under cross-examination in
court. In the Indian view, at no point would he or she be accused of lying. All the versions would be
deemed reasonable in view of what might have happened, and no one would deem it necessary to
judge one version more right than the others.

Other concepts embedded in Aboriginal culture and expressed through Aboriginal languages would
be interpreted somewhat differently in English. Concepts of time and space, for example, are much
less precise in Aboriginal languages, while they are exactly measured and divided into uniform units in
English. More specifically, words describing time or distance in Aboriginal languages would tend to be
vague, such as "near," "too heavy" or "after sundown," as compared to "three feet," "110 pounds" and
"a quarter after 11" in English.

The inability to name an exact time, or estimate a distance or a weight with precision, is due in large
part to the irrelevance of these concepts to Aboriginal life. In a courtroom, the persistence of a lawyer
in trying to elicit a precise response results in the witness becoming convinced that the lawyer is
asking for verification of his or her own point of view.

The Aboriginal witness, when confronted by a question whether the distance was 10, 20 or one foot,
is stumped. The information is of no interest to the witness but appears to be of considerable
importance to the lawyer. The lawyer is in a position of authority and, therefore, is to be honoured by
concurrence with his or her point of view, whatever it might be. So the Aboriginal witness will try to
reassure the lawyer that the information is correct. 43

Many Aboriginal people are just as vague when it comes to such things as house numbers. An
individual knows where home is in terms of how to get there, but may not bother to remember the
house number. This very circumstance has resulted in many people being recorded mistakenly by the
police as having "no fixed address," thus affecting their prospects for bail or consideration during
sentencing. TOP

 
New Concepts—Old Words TOP

Some words can be translated directly from an Aboriginal language into the English language, but
they may not convey the same concept. Some concepts are totally foreign to Aboriginal thought and
so new words or phrases have to be invented to approximate the meaning. Former court interpreter
Barbara Whitford gave this example:

Q What about other phrases that you may have some difficulty or that an interpreter or a person who
speaks, say, only Ojibway, would have difficulty understanding an English legal concept. Probation is
an example....

Barbara Whitford: Actually, you have posed a very difficult question, as it just happened for me this
afternoon and I was unable to be able to say to that woman, in my language, the question that you
just asked.

Q The question about probation?

A I could come back and tell you. I need to think about that. I need to seek an older person, perhaps
my mother, who might have that language. Are you understanding what I am saying?

Q Yes. So, you don’t have a way of explaining it. You couldn’t explain probation....

A Not right off the bat. As I’m sitting here, no, I cannot answer that, no.

Because most concepts of the dominant justice system differ from those of Aboriginal societies, words
used to describe the concepts in an Aboriginal language have had to be newly coined or invented, or
explained with words that actually have different meanings. The way that Art Wambidee translates
"probation" for an offender is, "it will mean that he’s dragging a rope behind him." Barbara Whitford
gave us other examples:

Q It has often been said that in Aboriginal languages, Ojibway and Cree and others, that there is no
single word that captures what a lawyer is.

Barbara Whitford: Right.

Q If you were asked to interpret a lawyer, the word lawyer, how would you explain that?

A Well, I have a word for that, for lawyer.

Q What is that word?

A (Indian name for lawyer).

Q And what does that translate back in English meaning?

A Someone who defends you.

Q How about judge; do you have a word for judge?

A I was sitting there this afternoon contemplating that. No, not right offhand, I don’t. But it is along the
same lines as what I just said, the person who makes the decision regarding.

Many words used in Aboriginal languages to describe the concepts of the Canadian legal system
carry connotations which they may or may not have in English. The Cree term for "arrested" (literally,
he or she was "caught") implies a presumption of guilt, as does the Cree word for "accused."

Even if legal proceedings were carried out entirely in Aboriginal languages, there would be problems
describing concepts which are wholly Western. In European languages, for instance, "to appeal" is to
act in a particular way, but in Ojibway the relevant word is an abstraction which means the "science of
appealing," or the "art of appealing." It cannot be used to describe an act. For the word in Ojibway to
be given the added meaning of action would be to violate Ojibway grammatical structures and the
manner of thought which underlies them.44

Other words have been translated literally from English into Aboriginal languages. The English word
"bail," for instance, has been translated into Ojibway and means bail as in "bailing a boat." The
Ojibway word itself is unclear until it is put into context. To use the single Ojibway word for "bail," as
we use the English word in a courtroom context, would require widespread consultation and
acceptance about the word or phrase among Ojibway speakers. Unlike English, Ojibway does not
have a body of words with double meanings (homonyms) whose individual meanings are dependent
on context.45 The imposed introduction of a homonymic element would be another violation of
Ojibway grammar and the worldview it expresses.

Many Ojibway words are imprecise, or perhaps it would be better to say that many words do not
describe in detail. For instance, there is no way to distinguish between a defence lawyer and a Crown
attorney in a short phrase. To explain the difference between these two kinds of lawyers would require
a detailed explanation of the workings of the court in order for an Ojibway-only speaker to understand
the concepts.

Finally, the English language and lifestyle are not threatened in North America, nor is change feared.
Aboriginal people, on the other hand, are justifiably concerned about the erosion of their cultures and
languages, and are understandably less open to incorporating "foreign" concepts and elements into
their languages.

A basic problem in using Aboriginal languages in the legal system is that until recently they did not
exist in print. Some Aboriginal languages still have not been put into written form. This makes the
standardization of words and their meanings difficult, if not impossible, in some cases. The same word
in the same language can imply different meanings from community to community and from regional
dialect to regional dialect.

If it is determined that Aboriginal languages are going to be used in the courts, then language
development activities have to proceed to build a corpus of Aboriginal language terms which are
universally understood and accepted with that language group. 46 TOP

 
Conclusion TOP
Law has a special meaning to Aboriginal people. The "law," to Aboriginal people, means rules that
they must live by and it reflects their traditional culture and values. For instance, the Ojibway
worldview is expressed through their language and through the Law of the Orders, which instructs
people about the right way to live. The standards of conduct which arise from the Law of the Orders
are not codified, but are understood and passed on from generation to generation. Correct conduct is
concerned with "appropriate behaviour, what is forbidden, and the responsibility ensuing from
each."47 The laws include relationships among human beings as well as the correct relationship with
other orders: plants, animals and the physical world. The laws are taught through "legends" and other
oral traditions.

Broadly speaking, Aboriginal people share many values with other peoples around the world. Yet,
despite these similarities, Aboriginal cultures are vastly different from other cultures in Canada and
throughout the world. They are unique and have no other place of origin. Despite this distinctiveness,
Aboriginal cultures and ways of life have been assumed by the dominant society to be without value
or purpose. Past policies deemed it best that these cultures be stamped out altogether. Failing that, it
was decided that Aboriginal cultures would have to melt into the mainstream in the hope they would
assimilate and disappear.

Aboriginal cultures and the values they represent have not disappeared. Instead, they have adapted
to new times and new situations. They remain vibrant and dynamic today. The rules of behaviour and
the cultural imperatives of Aboriginal society continue to determine how an Aboriginal person views
the surrounding world, and they influence that person’s actions and reactions with other individuals
and with society as a whole.

So do the laws, customs and traditions that have been defined by that culture. They define the
concepts of justice in Aboriginal cultures. These laws respect the cultural imperatives that restrict
interference and encourage restraint. Their primary purpose is to discourage disruption and to restore
harmony when it occurs. They developed in other times and for other circumstances, but they remain
powerful and relevant in Aboriginal society today.

We cannot continue to ignore the cultures of Aboriginal people and the laws, customs and values they
generate. We cannot keep denying their very existence. To do so would be to compound past
mistakes that have precipitated horrific consequences for Aboriginal people. If the justice system in
Manitoba is to earn the respect of Aboriginal people, it must first recognize and respect their cultures,
their values and their laws. TOP

The Justice System and Aboriginal People

The Aboriginal Justice Implementation Commission

SOURCE: ajic.mb.ca/volumel/chapter2.html

Indigenous justice systems and harmonisation

with the ordinary justice system’ - SR IP Report to
the Human Rights Council 2019
Indigenous peoples’ own systems of justice is a subject which has recurrently been addressed
by the Special Rapporteur’s mandate, including through country visits, communications, and
in seminars and conferences. The main concerns which have been raised by indigenous
peoples are the lack of effective recognition of, and support for, their systems of justice by
local, regional and national level authorities; ongoing discriminatory and prejudicial attitudes
against indigenous peoples and their systems of justice; and the lack of effective methods of
coordination between their justice systems and the State ordinary justice authorities. The
observance of international human rights standards by both the ordinary and indigenous
justice systems, particularly regarding the rights of women, children and persons with
disabilities is also a concern that deserves due consideration.

The Special Rapporteur has therefore decided to devote particular attention to this
issue through the elaboration of a thematic report which will be presented to the
Human Rights Council in September 2019. She intends to address these issues through
an examination of international standards regarding indigenous customary justice, access to
justice and the right to a fair trial as well as lessons learned from domestic legislation and
judicial decisions addressing indigenous customary justice, as well as observations and
recommendations made by international human rights bodies.

The United Nations Declaration on the Rights of Indigenous Peoples (2007) asserts the right
of indigenous peoples to maintain and strengthen their political, legal, economic, social and
cultural institutions (Article 5) and to promote, develop and maintain their institutional
structures, including their juridical systems or customs in accordance with international
human rights standards (Article 34). These are important elements of their right to self-
determination. The Declaration furthermore affirms the right of indigenous peoples to ‘access
to and prompt decision through just and fair procedures for the resolution of conflicts and
disputes with States or other parties, as well as to effective remedies for all infringements of
their individual and collective rights’ which should give due consideration ‘to the customs,
traditional, rules and legal systems of the indigenous peoples concerned and international
human rights’ (Article 40).

In order to develop the report based on an assessment of progress made in this

area, the Special Rapporteur would appreciate receiving information, including on
the following:

Indigenous justice systems and coordination with the ordinary justice system

1. Please describe the significance of indigenous justice systems for indigenous peoples

and their exercise of collective rights, including self-determination, culture, customs
and spiritual traditions.
2. What national legal provisions establish recognition of indigenous justice systems?
3. Are there restrictions on the exercise of indigenous jurisdiction and if so, which are
these restrictions?  Can indigenous jurisdiction be exercised over non-indigenous
individuals?
4. Please provide examples of how jurisprudence of the ordinary justice system has
referred to matters relating to the indigenous justice systems.
5. How do the jurisdictions between the ordinary justice system and the indigenous
justice systems cooperate and coordinate and how is this regulated?
6. Are the decisions by indigenous justice systems subject to appeals in, and review by,
the ordinary justice system?
7. What measures are in place to strengthen cooperation and coordination between the
ordinary and indigenous justice systems? Is there any joint entity consisting of both
ordinary and indigenous justice representatives?
8. How is it ensured that the accused are not tried in both the customary and ordinary
justice system (double jeopardy)?
9. What financial and technical assistance is provided by the State to the administration
of indigenous justice systems?
10. Are there measures in place to ensure that indigenous justice systems are in line with
international human rights standards and respect the rights of women, children,
persons with disabilities and LGBT persons?

Indigenous peoples in the ordinary justice system

 11. What are the main challenges faced by indigenous peoples in terms of accessing the
ordinary justice system?
12. Please describe how legal aid and the right to interpretation are provided in the
ordinary justice system for indigenous victims, witnesses and those accused of having
committed a crime.
13. Are indigenous or non-indigenous experts called to give testimony during court
proceedings involving indigenous persons in the ordinary justice system? Please give
examples.
14. In relation to indigenous persons facing criminal penalties in the ordinary justice
system, how are their economic, social and cultural characteristics taken into account
and how is preference given to methods of punishment other than prison?
15. Are indigenous peoples overrepresented in pre-trial detention and prisons compared
to the non-indigenous population?
16. What measures are in place to ensure that places of detention respect cultural and
religious practices and culturally adequate health services?
17. Please indicate and give examples of how the ordinary justice has provided remedies
and reparation for successful indigenous petitioners.

The Special Rapporteur would appreciate receiving information no later than 10

May 2019 in order to consider it in the preparation of the report.

Please send submissions to the email: indigenous@ohchr.org

Kindly indicate "Justice Report 2019" in the subject heading of the email submission.

SOURCE:
https://www.ohchr.org/EN/Issues/IPeoples/SRIndigenousPeoples/Pages/CallforinputsIndegenousJus
ticeSystems.aspx

Philippines: Obstacles concerning

access to justice and protection for
indigenous people
WRITTEN ON 28 AUGUST 2012. POSTED IN  PHILIPPINES

The Asian Legal Resource Centre (ALRC) welcomes the range of reports concerning
the human rights of indigenous people during the upcoming 21st session of the
Human Rights Council, being held from September 10 to 28, 2012. In view of the
discussion on indigenous people and access to justice, to be held by the Council on
September 18, the organisation wishes to highlight some specific issues of concern
relating to such access to justice in the Philippines in particular.

The ALRC wishes to inform the upcoming debate by providing concrete challenges
that it has documented, which mirror many other challenges to access to justice for
indigenous people witnessed across the Asian region. It is important to note that
despite existing legislation, the rights of indigenous people are routinely being
ignored. This is only made possible by the lack of effective institutions to receive
complaints, investigate allegations of violations of rights, and provide remedies. In
the Philippines, such institutions are either weak or dysfunctional to the point that
members of the country's population in general rarely enjoy effective access to
justice, let alone indigenous people who face even greater obstacles in this regard.
The ALRC therefore hopes that such fundamental questions concerning the wider
institutional failings will be included in the discussions relating to indigenous people's
access to justice. The ALRC has documented cases that speak to the systemic
deprivation of due process rights and protection for indigenous people under the
Philippines criminal justice system. The country's 1987 Constitution and the
Indigenous Peoples Rights Act (IPRA) of 1997, contain no effective or adequate
clauses with regard to providing indigenous people with the required protection
within criminal justice processes. Deprivation of due process rights: While,
concerning indigenous people, Chapter V, section 21 of the IPRA, stipulates that the
State has "due recognition of their distinct characteristics and identity," the equal
protection and the non-discrimination clause within this law has been shown to be
grossly insufficient in protecting the rights of indigenous people in criminal
prosecutions. Although section 15 of the IPRA stipulates the State's recognition of
indigenous people's "right to use their own commonly accepted justice systems," in
situations in which the criminal prosecution one of the parties involved chooses not
to submit to the indigenous system of justice, or is denied the opportunity to do so,
the State has been systemically failing to uphold the indigenous person's
fundamental rights to due process, as provided for under the equal protection clause
concerning "rights and privileges available to every member of the society." Take the
case of Iladio Laydan, an indigenous man belonging to the Manobo tribe. Laydan is
presently detained in North Cotabato Provincial Jail, Kidapawan City, following his
arrest on charges of rape and homicide on September 23, 2004. For three years,
Laydan was in jail without any news as to when his trial would begin. It took three
years for the Regional Trial Court (RTC) 12 in Kidapawan City to conclude he had a
case to answer. Laydan was arraigned on July 24, 2007. However, when the court
began to try his case on September 27, 2007, he had to appear in court without a
lawyer. For almost a year, the court could not proceed with the trial because he had
no lawyer. The court finally appointed a counsel-de-officio for Laydan, supposedly for
one day, although this lawyer was then tasked with defending him for his entire case.
The court, however, later had to replace him because of his apparent disinterest in
appearing in court. When a lawyer from the Public Attorney's Office (PAO) was
appointed in July 2008, for the following two years, Laydan complained that "his
lawyer has not been adequately informing and giving him regular updates about the
progress of his case." It was only after the ALRC started writing appeals in October
2010, particularly to the PAO, that some adequate attention has been given to his
case. Lack of protection: Section 5 of the 1987 Constitution clearly guarantees the
protection of indigenous people's ancestral lands, to "ensure their economic, social,
and cultural well-being." However, in practice, when the indigenous people take
action to protect their communities and ancestral lands, they face threats, attacks
and extrajudicial killings. Following such violations, there is typically no adequate
complaint, investigation and protection mechanism through which indigenous people
can seek effective remedies. The absence of such a mechanism has been shown to
place the lives, security and livelihoods of indigenous people at increased risk. In the
recent past, leaders of indigenous tribes and members of their communities who, for
example, supported campaigns against intrusions by large foreign corporations in
their communities, particularly those engaged in large scale mining operations, which
threaten the distinct nature of their communities, including their means of
subsistence, livelihood and culture, have been subjected to various forms of human
rights abuse including extra-judicial killings. Indigenous leader Jimmy Liguyon was
murdered on March 5, 2012 in San Fernando, Bukidnon. Jimmy resisted the entry of
a large-scale mining operation that threatened the small-scale mining operation that
is the main source of income of his community. His murder is evidence of the lack of
adequate and effective protection mechanisms that operate for indigenous leaders
who act to protect the rights and interests of their people. He was killed despite his
having made public the threats to his life that were being made by members of a
paramilitary group. This lack of protection is also evident in the case of four
indigenous villagers from the Taga-Kaulo tribe - Mylen Cambo and her husband
Loreto, Arnel Cambo and Reynaldo Libay - in Malalag, Davao del Sur. The Barangay
(village) Intelligence Network (BIN), which is controlled by the police, started
threatening them when they began filing petitions as claimants to ancestral land in
their community. The BIN members labelled them as members of a rebel group,
which is often a convenient excuse used to justify attacks against persons or to deny
persons with protection. The four villagers had to find sanctuary, with the help of
non-governmental organisations helping them in their claims for ancestral land, in
the absence of government-sponsored protection mechanism. Although the group
made a complaint to the local police station to have the threats against them
investigated, the police did nothing to investigate their complaints or provide them
with any security and protection. They limited themselves to simply recording the
complaint. This is an extremely important point, as it must be highlighted that when
we speak about access to justice, the initial contact point that indigenous people, or
indeed any other complainants regarding human rights violations, have with the
authorities concerns the registering of complaints. It is often at this initial stage that
access to justice is blocked, with the police either refusing to record complaints, or
by not taking any credible action to investigate them. Without proper investigations,
the process of accessing justice is effectively nipped in the bud. In the above case
concerning the four villagers, the absence of protection concerning threats and
intimidation not only placed them at risk of abuse, but also prevented them from
claiming their lands and pursuing criminal prosecutions against those who made
threats against them. This illustrates how a lack of access to protection by the state
and access to justice delivery mechanisms places victims at risk, enables violations
to take place and participates in shielding the perpetrators. Additionally, it should be
noted that human rights defenders who support and campaign for protection in
favour of indigenous people, are also being targeted and are not being afforded
adequate protection by the state. In the case of Francisco Canayong, a mining
activist in Salcedo, Eastern Samar, who was stabbed on May 1, 2012, even after his
killing, his colleagues Nenita Lacasa and Carolyn Borja were also threatened and
attacked. On May 6, 2012 at 4pm, armed men open fired at the house of Lacasa,
also in Salcedo, Eastern Samar. It is alleged that Lacasa's mother died of shock in
relation to the attack. On May 23, 2012 at 11pm, armed men also shot at the house
of Borja. Due to a lack of protection, Borja and her family were forced into hiding.
Such attacks against those who work to assist indigenous persons in accessing
justice and remedies greatly undermine indigenous people's efforts in this regard.
The ALRC therefore urges the Human Rights Council to include the issues of
protection of complainants and the widespread problem of the lack of credible
investigations into abuses against indigenous people in its discussions concerning
this issue. The ALRC welcomes the work of the Special Rapporteur on the rights of
indigenous people and his report and focus on extractive industries. It also recalls
the findings in the report that resulted from a visit to the Philippines by the mandate
in December 2002 (E/CN.4/2003/90/Add.3), which indentified concerns relating to
the "slow pace of implementation of the provisions of IPRA," and a "loss of
confidence among indigenous organizations in the ability or willingness of
government agencies to proceed actively with its effective implementation. Then-
Special Rapporteur also spoke of a human rights "protection gap" for indigenous
peoples in paragraph 61 of the report, which remains as relevant today as it was a
decade ago. Furthermore, the report expresses concern about "numerous reports of
harassment of indigenous human rights defenders and their organizations, who,
together with responsible government agencies, are the cornerstone for the
protection, promotion and realization of the human rights of indigenous peoples,"
which also remains an issue of grave concern for the ALRC to date, as highlighted
above. It is of particular concern that many key recommendations made by the
mandate following this country visit have still not been implemented by the
government, including: i. Paragraph 67 (c) That the Philippine judiciary fully respect
the legislative intent and spirit of IPRA and ensure that maximum favour be accorded
to indigenous peoples in resolving the issue of conflicts of law between IPRA and
other national legislation such as the 1995 Mining Act. Moreover, special training
programmes should be designed for judges, prosecutors and legal defenders
regarding indigenous peoples' rights and cultures; ii. Paragraph 67 (f) That the
Government of the Philippines carry out a prompt and effective investigation of the
numerous human rights violations committed against indigenous peoples, which
 have been documented by human rights organizations and special fact-finding
missions. The Special Rapporteur further urges the Government to take all
necessary measures to prevent a recurrence of human rights violations; iii. And,
paragraph 67 (i) That maximum protection be afforded to human rights defenders in
carrying out their legitimate human rights work; With this in mind, it is important to
note that without effective state institutions that can register, investigate and
prosecute cases of violations against indigenous people, a climate of impunity for
even the gravest of violations such as extra-judicial killings, will undermine attempts
to secure from large, possibly trans-national companies an approach that involves
consultation and free, prior and informed consent, or the "protect, respect and
remedy" framework, which is incorporated into the Guiding Principles on Business
and Human Rights, as recalled in Special Rapporteur James Anaya's report to this
session of the Council. Only with sufficient deterrents in place against violations of
civil and political rights, will it be realistic to expect effective protection of indigenous
people's economic and cultural rights in practice. While the Philippines does have
some provisions under its constitution and domestic laws that may appear to
comprise such a deterrent, in reality, what is witnessed is the lack of implementation
of these provisions, and the acquiescence and even complicity of state actors in
violations against indigenous people. It is imperative for such elements to be
included in any discussions by the Council, if these are to be relevant concerning
indigenous people's access to justice and protection with regard to extractive
industries and other external forces that threaten their way of life, livelihoods and
rights. About the ALRC: The Asian Legal Resource Centre is an independent
regional non-governmental organisation holding general consultative status with the
Economic and Social Council of the United Nations. It is the sister organisation of the
Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen
and encourage positive action on legal and human rights issues at the local and
national levels throughout Asia.

SOURCE: https://www.iwgia.org/en/philippines/1678-philippines-obstacles-concerning-access-to-
justice

Statement by Lambo of Subanon Tribe on Indigenous

Justice Systems
Posted August 12th, 2009 by Rafael 
in 

 Indigenous Rights

 Sectoral Issues
  

 Statements

 Indigenous Views

 IP Organisations

 UN CERD

 UN DRIP

 UN EMRIP

 UN Human Rights Council

 Autonomous Region of Muslim Mindanao

Source: 
Speaker: Timuoy Noval Lambo (Philippines)
Date of publication: 
12 August, 2009
For latest updates please visit http://philippines-cerd.blogspot.com/
Presentation under Agenda Item 4B
-UN Declaration on the Rights of Indigenous Peoples
Thank you Madam Chair for giving me this rare opportunity to shortly speak about our indigenous
justice system.
To start with, Madam Chair, I am Timuoy Noval Lambo, a member of the Subanon Tribe of the
Zamboanga del Norte province, Mindanao, Philippines. I am representing the Gukom Sog Pito
Kodolungan, a group of Subanon families living in a separate adjoining communities and belonging
to one common ancestor. Given that the Indigenous Peoples Rights Act is patterned after the draft
UN DRIP, we hope that the lessons learned by the indigenous peoples of the Philippines will
contribute to the future implementation and interpretation of the UN DRIP with regard to conflict
resolution using customary laws.
As a tribe, Madam chair, we have our own established customary laws to govern our people known
to our tribe as “Kompongan Nog Botad”, a body of unwritten traditional laws, which governs the
following:
1.All forms of criminal offenses ranging from simple to the highest form of criminal offense;
2.Family laws governing marriages;
3.Economic activities governing traditional livelihood;
4.Foreign relations; and
5.Religious activities and exercises by the Subanon religious leaders.
Sad to note, Madam Chair, that the exercise of our indigenous justice system had not given due
recognition by our Philippine government.
Let me cite to you Madam Chair, one grave example of how the government, through the National
Commission of Indigenous Peoples (NCIP), violated our laws by establishing another council of
elders for the purposes of obtaining an illegal free, prior and informed consent with regard to
mining activities in our ancestral domains. This act of the NCIP caused division and intrigue among
our people. In 2004, the Gulang Gukom found them guilty of such act and imposed penalties
against this government agency. However, the NCIP failed to comply with such decision.
Another grave incident of violation of our customary laws was committed by a multinational mining
corporation in Zamboanga del Norte, Philippines by destroying the Subanon sacred mountain. In
2007, this was brought to the attention of the Subanon highest judicial system for hearing. The
Manager of the mining firm was invited to attend the scheduled hearing but instead of attending
the hearing under the Subanon customary laws, the company refused the invitation, instead wrote
very insulting comments against the authority of the Gulang Gukom. The incident of that Subanon
resolution of the hearing of the case was brought to the National Commission on Indigenous
Peoples (NCIP) but no action was taken.
In the Philippines, Madam Chair, we have the Indigenous Peoples Rights Act, which affirms that
customary laws must be respected, however, despite the existence of this law, government itself
has failed to recognize our jurisdiction.
Under this sad experience Madam Chair, the following recommendation be respectfully submitted:
1.Full recognition of indigenous justice system by the Philippine government;
2.All cases involving indigenous peoples filed in the regular courts of justive be referred to the
indigenous courts having proper jurisdiction;
3.All cases involving indigenous peoples tried and found guilty beyond reasonable doubt under
customary laws and sentenced for a certain period of imprisonment be accepted or admitted to
any established government prison cell; and, finally,
4.That government instrumentalities and officials not only be held accountable under national
laws, but also under indigenous laws which they violated.
Madam Chair, thank you very much for this opportunity. We hope that this experience will also
help other countries and that these cases be brought to the attention of the UN Human Rights
Council. Thank you again Madam Chair and may God the Almighty bless us all.

SOURCE: http://www.piplinks.org/statement-lambo-subanon-tribe-indigenous-justice-systems.html

Situation of Indigenous Peoples in the Philippines: Submission to the 59th Session

of CESCR

Committee in Economic, Social and Cultural Rights

59th Session
Meeting with Partners
26 September 2016
 
 
Statement by TEBTEBBA – Indigenous Peoples’ International Center for Policy Research and Education
Philippines
 
  
Background
 
Good morning, Mr. Chair. Thank you for this opportunity to provide comments on the situation of
indigenous peoples in the Philippines. This statement is made in relation to the Philippine NGO-PO
Network Submission to the Committee and elaborates further on indigenous peoples’ issues contained in
the submission.
Disaggregated Data– There continues to be a serious lack of data on the number and distribution of
indigenous peoples in the Philippines. Although an ethnicity variable was included in the 2010 census, 
official data has yet to be released by the national government and, in cases where regional offices have
released their disaggregated data[1], credibility of the results and enumeration methodology have been
questioned. Preliminary data presented by the Philippine Statistics Authority (PSA) show an indigenous
population of 8 million, which constitutes a drastic and unrealistic reduction of 6 million from the population
estimate of 14 million by the National Commission on Indigenous Peoples (NCIP). We recommend the
immediate release of 2010 ethnicity data, enactment of a law mandating the inclusion of an ethnicity
variable in the Philippine census (such as Senate Bill No. 912 or the Ethnic Origin Bill and House Bill No.
579 or the Ethnic Origin Census Bill), and the improvement of training for census enumerators on culturally-
sensitive methods for collection of ethnicity data.
Indigenous Peoples and Mining– Medium and large-scale corporate mining and conflicting laws governing
natural resources continue to be major problems that indigenous peoples face in their communities. The
free, prior and informed consent (FPIC) process is being manipulated in favor of mining corporations[2].
The presence of military personnel and investment defense forces in mining areas has limited indigenous
peoples’ freedom to work in their lands and caused indigenous children to drop out of school. Indigenous
human rights defenders are being harassed and killed – there have been 76 documented cases of killings
of indigenous human rights defenders from 2010 to 2016. Environmental degradation caused by mining
has resulted in health problems, significant reduction of agricultural production, water pollution and
decreased fish catch.
In relation to mining and militarization, the following are our recommendations:
 - Include indigenous peoples’ ancestral domains and community conserved territories and areas (ICCAs) in
the list Areas Closed to Mining or “no-go zones” in accordance with Section 1 of Executive Order No. 79, series
of 2012 (EO 79).
 - Amend the 1975 Revised Forestry Code (P.D. 705), and other DENR administrative orders related to the
management and utilization of natural resources to reconcile conflicting provisions with the rights of indigenous
peoples (IPs) specifically recognized and protected under the Indigenous Peoples’ Rights Act (IPRA).
 - Repeal the 1995 Mining Act and immediately pass the Alternative Philippine Mineral Resources Act.
 - Ratify the Indigenous and Tribal Peoples Convention, 1989 (No. 169).
 - Ensure genuine free, prior and informed consent (FPIC) of indigenous peoples with regard to development
and other projects. Prosecute NCIP personnel involved in the manipulation of the FPIC process and issuance of
fraudulent FPIC Certificates or Certificates of Precondition.
 - Protect IP leaders from extrajudicial killings, enforced disappearances, forced displacement, rape, and
harassment. Launch investigations into past cases of extrajudicial killings and bring perpetrators to justice.
Indigenous Peoples’ Land Rights– Under the 1997 Indigenous Peoples’ Rights Act (IPRA), the NCIP has the
mandate to to facilitate full delineation and demarcation of Ancestral Domains of indigenous peoples
through the issuance of Certificates of Ancestral Domain Title (CADT). Unfortunately, ancestral domain
titling remains a burdensome process that has not undergone any review to simplify and streamline the
process. An additional process put in place by Joint DAR-DENR-LRA-NCIP Administrative Order No. 01-12
(JAO 01-12), issued in 2012 with the objective to address jurisdictional and operational issues between and
among these land titling agencies, has resulted in undue delay in the issuance and registration of CADTs.
Of the 182 CADTs issued by the NCIP to date, less than 50 have been registered with the Land
Registration Authority (LRA). This is a problem for indigenous peoples because when their CADTs are not
registered with the LRA, they are less able to prevent intrusion into their ancestral domains by migrants and
corporations. We recommend the repeal of  JAO 01-12 and the immediate registration by the LRA of all
CADTs validly issued by NCIP.
Indigenous Peoples’ Right to Economic Development – Of the 182 Ancestral Domains with CADTs issued by
the NCIP as of June 2015, only 59 have formulated their Ancestral Domain Sustainable Development and
Protection Plan (ADSDPP), a development plan required by the IPRA. The communities with ADSDPPs
were assisted by various private and public agencies, the NCIP and local government units. It is noted,
however, that some ADSDPPs were formulated through the help of mining companies and electric
companies (such as the National Power Corporation and the Apex Mining Corporation). At present, none of
the ADSDPPs formulated have been incorporated into the Barangay (village) development plans, resulting
in conflicts in development priorities between the local government unit and the indigenous peoples’
communities, and in non-implementation of ADSDPPs because of lack of resources from the government.
We recommend that the government ensure full implementation of IP representation in the local
government units (LGUs) where they reside, particularly when it comes to the formulation of development
and land use plans, and allow IP communities to formulate their own development plans.
Indigenous Peoples and the Mindanao Peace Process– Indigenous peoples recognize and support the
struggle of the Muslim minority in the Philippines for peace and against oppression and historical injustice.
However, indigenous peoples, often caught in the crossfirebetween the government armed forces and the
Muslim rebels, are victims of a conflict that is not theirs. Nonetheless, indigenous peoples welcome the
commitment of President Duterte to fully recognize and implement the Comprehensive Agreement on the
Bangsamoro (the final peace agreement between the Moro Islamic Liberation Front and the Philippine
Government, signed in March 27, 2015) and recommended that the implementing body of the
Comprehensive Agreement on the Bangsamoro ensure the full and effective participation of indigenous
peoples. We also recommend that the law being drafted to implement the Comprehensive Agreement on
the Bangsamoro fully include the rights of indigenous peoples under the IPRA, including the right to
ancestral domains and lands.
Right to Health– One of the main government program to address the right to health of indigenous peoples
is the Modified Conditional Cash Transfer (MCCT) program of the Department of Social Work and
Development (DSWD). This modified program is meant to address the main problems identified with the
Conditional Cash Transfer Program (CCT) or Pantawid Pamilyang Pilipino Program (4Ps), including failure to
address cultural and language needs, as well as the geographical remoteness and lack of education and
health infrastructure in indigenous peoples’ communities. It is recommended that construction of schools
and health centers that provide culturally-appropriate services be included as an integral part of the MCCT.
As part of the government’s commitment to meet the Millennium Development Goals (MDGs) on maternal
and child health, the Department of Health (DOH) issued the “No Home-Birthing Policy” and local
government units (LGU) have implemented this policy through ordinances that penalizes traditional birth
attendants and women who give birth at home. This policy puts additional strain on indigenous women,
given the lack of basic social services and inaccessibility of health centers for remote indigenous
communities. Pregnant indigenous women are now forced to hike for long distances just to get to the
nearest health facility. Indigenous women who choose to give birth at home under the care of traditional
birth attendants are fined six thousand pesos each before the birth can be registered, exacerbating the
problem of the low rate of birth registration of indigenous children. We recommend the modification of this
policy to take into account the situation of indigenous peoples, the repeal of punitive local ordinances, and
the accreditation of and appropriate training for traditional birth attendants.
Right to Education- Indigenous peoples are the least served in terms of access to education, mainly due to
the remoteness of their ancestral domains, as well as poverty and the prohibitive cost of sending
indigenous children to school, and the discrimination experienced by indigenous children. Statistics show
that nine out of ten indigenous children in Mindanao have no access to education and many indigenous
communities do not have schools. Armed conflict between the Armed Forces of the Philippines (AFP) and
the New People’s Army (NPA) continues to be a serious threat in many IP areas. While some community-
based organizations and religious institutions have sought to provide alternative schools for IPs, there are
reports that these schools, as well as government-run daycare centers, have been used for the
government’s military counterinsurgency program called Oplan Bayanihan (the Internal Peace and Security
Plan). This has resulted in grave human rights violations in IP areas, which have continued with impunity.
We recommend that military harassment of indigenous peoples’ schools be stopped immediately and the
perpetrators of harassment, killings and destruction of school property be held accountable.
While we welcome the adoption by the Department of Education of several policies on indigenous peoples’
education[3], we note that these have not been adequately implemented or funded. We recommend the
increase in investment for inclusive education, ensuring that programs reach indigenous communities and
areas with high poverty incidence, support for multi-lingual education and the culturally-appropriate
accreditation of IP teachers.
Right to Culture– While there are several government cultural programs and policies, indigenous peoples
are concerned that the main program for promotion of indigenous peoples’ culture is through festivals,
which are not under the control of indigenous peoples and sometimes misrepresents their traditional
cultural expressions. There is demand from indigenous peoples for increased and sustained support for
Schools of Living Traditions (SLTs), a program of the National Commission on Culture and the Arts
(NCCA). We recommend the adoption of implementing rules for Article 31 of the IPRA on Community
Intellectual Rights for the protection of indigenous peoples’ knowledge systems and practices (IKSPs) and
intangible cultural heritage.
Thank you, Mr. Chair.
[1]Republic of the Philippines, Philippine Statistics Authority, Regional Statistical Services Office, Cordillera
Administrative Region, “Special Report: Ethnicity (based on the results of 2010 Census of Population and Housing)”,
2015.
[2]An assessment of the implementation of the FPIC guidelines that was conducted by the Deutsche Gesellschaft fur
Internationale Zusammenarbeit (GIZ) and the Non-Timber Forest Products (NTFP) in 2012 found that 53% of FPIC
processes were carried out in relation to mining and that many claimed that the FPIC process was manipulated and
FPIC certificates fraudulently issued.
[3]Such as the following Department Orders (DO): DO 62, s. 2011 - Adopting the National Indigenous Peoples (IP)
Education Policy Framework, DO 103, s. 2011 - Creation of Indigenous Peoples Education Office (IPsEO), DO 32, s.
2015 - Adopting the Indigenous Peoples Education Curriculum Framework, and DO 50, s. 2016 - Hiring Guidelines
for Teacher I Position in Schools Implementing Indigenous Peoples Education Effective School Year 2016-2017

SOURCE: http://www.tebtebba.org/index.php/content/383-situation-of-indigenous-peoples-in-the-
philippines-submission-to-the-59th-session-of-cescr