Exploring Indigenous Justice Systems in Canada and Around the World

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Day 2 – May 15, 2019

Panel #4: Tribal Courts in the United States of America

Moderated by: James C. Hopkins, Professor, James E. Rogers College of Law, University of Arizona

Panelists:

• Honourable Carrie Garrow, Chief Justice, St Regis Mohawk Tribal Court
• Honourable Malcolm Begay, Navajo Nation Judicial Branch
• Rebecca Tsosie, Professor and Faculty Co-chair, Indigenous Peoples Law and Policy Program, University of Arizona

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Professor Hopkins opened the panel by identifying two processes and choices. The first, is to look at reform in Canada through the 1885 Major Crimes Act in the United States (USA), which puts certain crimes under federal jurisdiction if committed by a Native American on tribal lands as a way to assert jurisdiction in order to protect Indigenous laws. The second is that Indigenous communities take control of themselves. At ground level in Indigenous communities, that is where law making is actually happening.

Justice Begay spoke about Navajo people in the USA whose Creation stories and songs influence morals, laws and how conflicts are resolved. Natanis are traditional leaders – and very wise in what they do, often engaging in community problem solving. They would have held the role of a judge.

Following an 1868 Treaty that established a land base for the Navajo (53,108 square kilometers spanning over 3 states with 400,000 tribal enrollments), Federal laws were imposed and enforced through the Code of Federal Regulation courts. Sometimes there were traditional Natani judges and sometimes non-Indigenous judges. There are now about 13 courts and one appellate court, staffed by 9 judges across 3 jurisdictions and states. The choice of law is always an issue. 1. Respect 2. Redefine 4. Resource

Tribal courts will always be short staffed and overwhelmed with cases. The Peacemaking program uses traditional concepts of solving disputes with Natanis. All parties arrive without lawyers or judges and use patience and emotions. The parties are all allowed to voice their opinions in court. There are alternative ways to deal with lack of resources; we must be creative, improvise, and adapt to the times.

Chief Justice Garrow spoke about Healing to Wellness Courts, which were developed in the 1980s in response to the “war on drugs”, which saw individuals cycled through the criminal justice system while struggling with addictions. Innovative judges created a drug court using a non-adversarial approach. They did not want the idea that healing and wellness are a journey to be lost.

Within the court process, there are supervisions, a check-in once a day, weekly counselling sessions, 3 drug tests a week and community service to ensure the client remains sober and focused on good things. There is also an assessment of needs, an evaluation of where they are at in their addiction, and support in getting education or employment. There is also a Family Healing to Wellness Court.

Elders are used in a lot of different ways in the Healing to Wellness Courts, including as part of larger teams. Judges may assign participants the task of finding an Elder to teach them. Depending on culture, there is a whole process to do this in an appropriate way. One example was not a court, but a program for dealing with addictions. In another there was an Elders panel and one case was diverted, and Peacemakers worked on an alternative resolution (restorative approach).

Professor Tsosie spoke of Indigenous Justice in the USA having 4 frames. We can see, name, and choose the preferred frameworks we want to see in the future. 1. Respect 2. Redefine

1. Traditional law and justice systems: Traditional law is inseparable from morality. All other legal systems are political and based on power and money. Reconciliation cannot happen until we recognize traditional law. It is in the language: the word for law in one Indigenous language is the word for wellness. So when you live that law you live the law of life. It is balanced. It is not really about justice. The source of what we call Indigenous sovereignty is in our relations to all things.
2. Justice between nations: Treaty partners took accountability for their actions while on other territories. The political relationship must be equalized. The USA abolished treaties in the late 1800s using the fiction that Indigenous peoples as wards of the state rendered them unable to give consent to treaties. In reality, the USA did not want to put money into treaties and today will not engage with Indigenous peoples as nations. They view their dealings as domestic relationships.
3. Domestic dependent nation: Self-determination was not viewed as a part of the dialogue until the United Nations Declaration on the Rights of Indigenous Peoples was adopted by the United Nations. Self-determination means Indigenous peoples’ rights to define their own political, social and economic selves – to collaborate to form new institutions including justice systems.
4. Political sovereignty of Indigenous nations: Cultural Sovereignty says that the core of inherent sovereignty has always been embedded in traditional law. There is no way to take that away. It is a gift, it is the basis of reconciliation and is the basis of communities to protect and sustain the people, the communities and the future generations.

While there is a system of Tribal Courts in the USA, funding can be spotty. Congress has passed a statute to support Tribal Courts but the subsequent allocations are political decisions based on the policies of the executive branch. Consequently, tribes fund their own courts so they do not have to wait. 4. Resource

Panel #5: International Experience with Indigenous Courts

Moderated by Emilia Péch, Legal Counsel, Legal Practice Policy Division, Justice Canada

Panelists:

• Dr. Mark Harris, Associate Professor, Institute of Gender, Race, Sexuality and Social Justice, University of British Columbia
• Brad Morse, Dean, Faculty of Law, Thompson Rivers University; Professor of Law, Te Piringa - Faculty of Law, University of Waikato, New Zealand
• René Provost, Professor, McGill University Faculty of Law and Centre for Human Rights and Legal Pluralism

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Professor Harris’s remarks focussed on the relevance of the citizen courts in Australia, which are most closely related to the “Gladue” sentencing courts in Canada. The court takes the time to flesh out the full story of the defendant through engagement with Elders and the defendant. This is not just lawyers speaking to each other, it is a conversation. There are 5-6 cases per day as opposed to 50-60 in magistrate courts where defendants have no voice. The shaming factor from close relations is effective in the proceedings and is only possible on reservations or in a community.

Professor Harris acknowledged that the Australian model of citizen courts is of limited scope; that Australia should look to Canada. Australia is late to the party regarding recognition.

Professor Morse spoke to the act of two people coming together to learn from one another. Europeans came to New Zealand in the late 1700s as whalers, sealers, traders and missionaries. Maori were welcoming to some of the technology, especially some of the tall sailing ships.

The Maori realized they did not have a flag to be recognized as a nation during trading so they created a Declaration of Independence and were acknowledged as a nation-state. Then, the Treaty of Waitangi was negotiated. There were two written versions, one in English and one in the Maori language that differed in the description of land and rights. The English version was implemented, thus the Maori lost land and rights. 1. Respect 4. Resource

The dynamic in New Zealand is different because of demographics – the Maori are 15% of the population and represent 20% of Parliament. They are part of the national government as opposed to always being acted upon by the government. Resources are a challenge, but Maori have taken on that challenge.

Professor Provost’s remarks centred on the experience of rebel and minority groups in Colombia. This shifted the frame away from the British colonial morality that informs Canada and the United States to Spanish-style colonization. In Colombia, Indigenous peoples make up 3% of the population, belonging to 87 recognized communities located on 710 reservations, speaking 64 languages, and covering a third of the land mass. Limited government authority is one of the root problems in Columbia

Colombia’s constitution was amended in 1991 to recognize that the decisions of Indigenous jurisdictions are valid. The state never was seen to have a monopoly over the administration of justice; jurisdiction is shared. Indigenous peoples are entitled to apply and enforce decisions of their own courts as long as these are not contrary to national laws. The Constitutional Court has pushed the pluralistic envelope to find that the constitution and bill of rights must necessarily be adapted when applied to Indigenous jurisdictions, with the exception of the right to life, protection from torture, and slavery. Reimagined through cultural traditions, most of the constitution and bill of rights legal requirements can be met in culturally-specific ways. For example, a defendant can be fully represented by family being present. 1. Respect 2. Redefine

The problem with the concept of sovereignty is that it is in essence monopolistic. In challenging state sovereignty, it may not be helpful to rely on a competing idea of monopolistic Indigenous sovereignty. Instead, Indigenous people should become an accepted player within a reimagined form of federalism.

For generations, Anglo-American lawyers have been mis-educated by a picture of law as a thing controlled by the state to be wielded to regulate social relations. In reality, law cannot be monopolized by the state any more than any other institution. Justice happens in many guises through many processes, and always has, including in Indigenous communities. There is now a process of the “visibilization” of Indigenous justice systems that should be coordinated with, rather than resisted by, the Canadian justice system.

Panel #6: Interaction between Indigenous and Non-Indigenous Legal Systems

Moderated by Scott Robertson, President of the Indigenous Bar Association

Panelists:

• The Honourable Paul Crampton, Chief Justice of the Federal Court of Canada
• Attorney P.J. Herne, (formerly) Chief Judge for the St. Regis Mohawk Tribal Court, (currently) Prosecutor for Akwesasne Court and Legal Policy Analyst for MCA Nation Building

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Mr. Robertson opened the panel with an anecdote about how his mother had glanced at the conference agenda and commented “how are you possibly going to discuss Indigenous laws or views with no woman on the panel?” Recognizing the difficulties in putting a conference together, Mr. Robinson expressed his gratitude to the female Elders who are here and the other women’s voices at the conference to make up for this all-male panel. Mr. Robinson also commented on the importance of language and word choice, specifically, that we are not “exploring” justice systems in the sense of discovering them. Instead, it is time to act, to decide from both a Canadian and Indigenous justice perspective how we merge or co-exist. 2. Redefine 3. Rethink

Chief Justice Crampton spoke about the work of the Federal Court in integrating Indigenous perspectives and processes including in the work of Court committees beginning in earnest in 2007 with a meeting of judges from across the country and culminating in the Practice Guidelines for Aboriginal Law Proceedings. 2. Redefine

There remains a need for greater dialogue on bigger-picture issues, such as delays, costs, the suitability of adversarial process in itself, the amendment process, lack of pretrial disclosure, insufficient notice of witness, ineffective use of Elders, etc. The Court has gained valuable insights when using customary law but there are challenges when presiding judges endeavor to apply a law that they are not trained in. The Federal Court continues to look at how to better deal with the role of history and the role of Elders through meetings with Elders. At a 2010 gathering, Elders stated: “we believe in coming together so that we can create a system of justice better than any in the world”. 1. Respect 3. Rethink

Beyond making space for Indigenous Law and continuing to address oral history, other priorities identify what role courts can play in national reconciliation – training judges in Indigenous law, identifying how Indigenous experts can assist court in specific proceedings, etc.

Mr. Robinson supplemented Justice Crampton’s remarks by noting that he has witnessed a dramatic change in the terms of procedures in courts. In the past, counsel for Indigenous parties were denied requests to bring eagle staffs and wampum belts into courtrooms and had Elders viciously cross-examined by the Department of Justice. There has been an awakening to the issues and a willingness to sit down and find ways to respect each other.

Mr. Herne’s remarks began with the need to end colonialism. Unfortunately, colonialism ends either in arms or with the stroke of a pen; we are all here to make it end with the stroke of a pen. 2. Redefine

In the USA, there is a lot of competition for jurisdiction with many tribal nations exerting jurisdiction through their own courts. There are over 560 tribal nations, 50 state governments and 1 federal government, so there became a lot of inter-tribal competition of jurisdiction and federal-state competition of jurisdiction. The question became “Which court, which law?” Most judges would like cases taken off their docket. The issue becomes “Does it really need to be on that docket?”

The US Constitution rarely mentions tribal jurisdiction. But tribal courts exist because of respect for each sovereign: American and Tribal. Because of legislative inaction on this competition, the courts stepped forward to offer solutions. They set up judicial forums of federal, state and tribal nation judges.

Discussion became very practical and pragmatic. The forums continued to grow and the judges from each state started to push the process. Court rules extended from the forums recognizing tribal court rulings.

The following is a wish list from Mr. Hearne’s experience working from the forum:

1. Advocate for tribal justice systems; efficiency is available at the community level.
2. Create State-Tribal Court Forums in Canada to proactively address issues.
3. Full recognition for tribal nation justice systems and support of them. Federal Indian Law is starting to appear in more bar exams; it should be in Canada as well.
4. Indigenous laws needs to be part of the police training process.
5. Be insistent on your laws and your people. Especially when there is discretionary authority. For example, when is the last time that someone was appointed to be a judge and a community was consulted on whether they wanted that judge to serve in their community?
6. Our people should make the decision on charges and dropping of charges.
7. We should all have our own Law Societies.
8. Every State Attorney General’s office with a reserve should have a tribal liaison officer.
9. Tribal Court orders of protection in domestic violence situations are given full faith and credit by other courts. 1. Respect 2. Redefine 3. Rethink

Mr. Robertson noted the several ways the Canadian justice system is adjusting to Indigenous processes, including round courtrooms, smudges, swearing oaths on eagle feather, involvement of Elders in mediation and dispute resolution, mediation happening in Cree, and parties being sent back to make use of customary approaches. Substantive adaptations have been made, as well including adopting purposeful approaches to band election codes, deference to Indigenous decision makers and acceptance of evidence of traditional approaches. 1. Respect 3. Rethink

The panelists were asked to consider the concept of “the honour of First Nations” by an audience member. In response, Mr. Robertson spoke about the value of revitalizing Indigenous legal orders for Indigenous peoples and the rest of Canada alike. This would build respect for tribal nations and their processes, and it would make for a more efficient system. For example, instead of the courts trying to find an Indigenous expert, the people in that nation who are the experts, can make their own decisions.

Panel #7: Enforcing and Adjudicating Indigenous Laws: A Path Forward

Moderated by Will David, Senior Political Advisor, Inuit Tapiriit Kanatami

Panelists:

• Hadley Friedland, Assistant Professor, University of Alberta Faculty of Law
• Karla Jessen Williamson, Assistant Professor at the University of Saskatchewan
• Connie Lazore, Chief, Akwesasne Mohawk Council

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Chief Lazore noted that while Akwesasne has their own police force, court and compliance program, they are still not able to fully adjudicate or enforce their laws. Their main obstacle is Canada: Akwesasne has been running their court since 1965 but their jurisdiction and authorities are not recognized. This creates problems both within Akwesasne and when dealing with the provinces. Reconciliation takes two equal parties; the paternalistic attitude has to come off. To this end, Akwesasne is currently working with provinces to establish reciprocity processes for court decisions. 1. Respect 2. Redefine 3. Rethink 4. Resource

Akwesasne throws culture and tradition into adjudication. The Healing to Wellness concept needs to be allowed in every aspect; Akwesasne knows its people. Education on Akwesasne laws is important. Many community members do not know their own laws.

Enforceability and funding are connected. Currently the Akwesasne Mohawk Council funds its court and enforcement officers from their own revenue. They have sought funding from Canada but the only funds provided were for training, not for actual enforcement. Financial support for Indigenous justice systems should be a part of core funding.

Regarding urban members, in Mohawk cultures, you will be embraced but you have to be adopted through ceremony and follow the normal practices of the Haudenosaunee. People will help, but it is your responsibility to learn that culture in order to come within it to participate in the ceremonies.

Professor Williamson was the first Inuk to be tenured at the University level. Inuit Grandmothers saw communities through assimilation and parents pushed for education. Individuals need to be able to come back home, fight assimilation and be taught how to unravel colonization.

A path forward looks like reorientation. There is an incredible love for land here and around the world. The love for land is expressed as Nununatuk – homesick for the land. Inuit are part of the land like any other bird or animal. From birth to death. Dead bodies go home to the land. Being on the land, having it speak to them, has profound effects on students.

“And I do believe that my experiences in the college of education can actually be transferred into the colleges of law where the college students are being taken out on the land to try to see how the curriculum has actually missed the land but for them to experience it from their point of view”

First Nations have holistic ways of knowing, like the medicine wheel. Euro-Canadians respect the people who own the land, rather than the land itself. Paying attention to the land has a profound effect on the paternalistic systems that exist. When we love the land, we lessen paternalism and colonization because we ground ourselves to where we are. Inuit laws are very old. For example, a 2500-year-old ulu means that justice was there that long ago! Canadian Laws are just over 100 years old! 1. Respect 3. Rethink

We can no longer have a situation where Inuit lives are second to those of other Canadians. Indigenous Law should not be “given space”; it should be seeded. The emphasis on the written form, as a truth from singular tunnels, is paternalistic and Christian. Our drums are the ones that take into consideration the echo of the land, through rivers, through winds, right into our heart.

Greenland’s reconciliation looks very different. Danes excused themselves from reconciliation for having done nothing wrong! So, it was left to individuals to figure out how to participate. What do we do with the “wild animal” of reconciliation? Hope that the ringing in their heads will start ringing in their hearts.

Professor Friedland spoke to a need for respect and recognition; this includes the need for resources, for stable funding, for enforcement. This is the largest actual distinction between Indigenous and state laws. The effect is that Indigenous laws are all but unenforceable, creating gaps of legitimacy in communities.

There is a deep education deficit for non-Indigenous Canadians who go into law and government. They are taught about the absence of Indigenous Law, which is a myth, that creates a fear of a legal vacuum, and that power and control are being taken away.

Canadians need to take the courageous step to say the “capacity issue” is with non-Indigenous Canadians’ knowledge about Indigenous law. The Calls to Action address elementary and secondary curriculum but also the legal profession and law schools. It is slow going but it is happening. Judges are also working across Canada to educate themselves. 1. Respect 3. Rethink 4. Resource

Specific to large urban populations, it is important to work trans-systemically to pull from diverse legal traditions to come up with solutions. One way of looking at jurisdiction is territorial (limited by space) and another is personal (where it goes with the person). There are legal tools for working this out in practice.

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