[PEN-L:352] corrected part 1 judicial findings

["James Michael Craven" <cravjm@xxxxxxxxxxxxx>]

Judicial Findings From The Inter-Tribal Tribunal on Residential
Schools in Canada (Held June 12-14 in Vancouver, B.C.) Submitted by
James M. Craven, Tribunal Judge (  c Copyright James M. Craven July
14, 1998, All Rights Reserved)

?You Can Recognize a Red Indian by His [or Her] Way of Life, Not by
His [or Her] Blood Percentage.? Chief Lame Deer, Lakota

Some Principles of Aboriginal Life and Law Guiding My Inquiry and
Findings:

1. TRUTH, JUSTICE, HEALING, RECONCILIATION AND PREVENTION OF FUTURE
ABUSES: THE FOCUS OF INQUIRY,  JUDGMENT and DISPOSITION:

 ?Probably one of the most serious gaps in the system is the different
 perception of wrongdoing and how to treat it. In the non-Indian
 community, committing a crime seems to mean that the individual is a
 ?bad person? and therefore must be punished...The Indian communities
 view a wrongdoing as ?a misbehavior which requires teaching or an
 illness which requires healing.? ? (Justice proposal by Sandy Lake
 First Nation (Oji-Cree) quoted in Ross, 1996, p. 5)

 ?Peacemaking is generally not as concerned with distributive justice
 or ?rough and  wild justice? (revenge, punishment, control,
 determining who is right) as it is with ?sacred justice?. Sacred
 justice is that way of handling disagreements that helps mend
 relationships and provides solutions. It deals with the underlying
 causes of the disagreement...?Sacred justice is found when  the
 importance of restoring understanding and balance to relationships
 has been  acknowledged. A peacemaking process tends to be viewed as a
 ?guiding process?, relationship- healing? journey to assist people in
 returning to harmony.? (Quoted    in Ross, 1996, p. 27)

 We recognize that ?eye-for-an-eye? ?justice? may lead to the whole
 world going blind and we recognize that it is in everyone?s
 interest--including the accused--to focus on healing, rehabilitation,
 solving problems by understanding and removing the root causes of
 those problems--as opposed to a total and sole focus on ?punishment?.
 The real challenge is to pay due respect and sensitivity to the
 obvious pain, anguish and suffering of alleged victims making their
 accusations on the one hand while paying due respect to the
 imperative for due process for the accused on the other hand. It is a
 real challenge to shame and deter criminal acts while retaining
 respect for all people--creations of the Creator--and the potential
 for accused to turn their lives around. All people must be seen as
 many--sided and whole people, with mental, physical, emotional and
 spiritual dimensions and not to be reduced to being simply
 ?offenders? and victims?. On the other hand, we also recognize that
 the healing approaches may be misused to obstruct Truth and Justice.
 According to Rupert Ross:

 ?Fourth, I don?t mean to suggest that all Aboriginal leaders who now
 speak the language of healing are doing so out of an honest
 commitment to the betterment of

 ...their communities. Sadly, there are many dysfunctional communities
 where the groups in power promote ?traditional healing programs? for
 one reason only: to prevent their abusive friends from being truly
 called to account in ?anyone?s? justice system, Western or
 Aboriginal. It is not the teachings themselves that are responsible
 for such abuse; it is their misuse by desperate people in desperately
 ill communities.? (Ross, 1996, p. 15)


2. ?WE ARE ALL RELATED?:

 We are all related. For accusers and accused alike, allegations are
 serious. Accusers and accused alike are members of a Family, Clan,
 Tribe and Nation and what affects one affects all. As Susan Guyette
 put it:

 ?Cultural preservation is not a romantic ideal, but rather a
 practical necessity. Traditional Cultures are tightly organized
 systems of belief and behavior, which nourish and protect social
 groups as well as the individuals who belong to them. The loss of
 traditional cultures places extreme social and psychological stress
 on tribal and rural peoples, exacerbating economic problems and
 creating additional social and health problems such as the lack of
 family cohesion and substance abuse.? (Guyette, 1996, p. xiii)

 The processes of Aboriginal or Indigenous Justice must balance
 protection of the rights of the accused with the imperative of
 preservation of the whole society and of what is worth preserving of
 the whole society--which also protects the individual, including the
 accused. Forms of revenge, retribution, abuse, injustice, duplicity
 and failure to seek truth and justice--against the accused or his/her
 family--add to cumulative spirals of abuse and dysfunction that
 progressively damage and destroy the whole society including those
 practicing the forms of abuse, duplicity, retribution, revenge etc.

3. TRUTH,  JUSTICE, HEALING, RECONCILIATION AND PREVENTION OF FUTURE
ABUSES ARE SACRED:

 We are human beings from different backgrounds, with some different
 interests and agenda. In Aboriginal Law there is a recognition that
 adversarial processes often and  easily degenerate into an emphasis
 on winning  and not on discovery of truth per se.There can be no
 stopping of further abuses, rehabilitation and/or restrictions of
 abusers,   healing, just compensation for victims or proper lessons
 learned until that which needs to be stopped, corrected and healed is
 fully and fairly understood with all contending perspectives fully
 and fairly taken into account. Still, Truth, Justice, Healing,
 Reconciliation and Prevention of Future Abuses--the fundamental
 mandates and goals of Aboriginal Law--are often very illusive An old
 Cree saying goes:

 ?You cannot pass along what another person ?really? told you; you can
 only pass along what you heard.?

 And from Ohiyesa:

 ?The worship of the Great Mystery is silent, solitary, free from all
 self-seeking.  It is silent, because all speech is of necessity
 feeble and imperfect; therefore the souls of our ancestors ascended
 to God in wordless adoration.? (Ohiyesa, 1993, pp. 1-2)


 People will invariably react to what was said or done in very
 different ways and as Rupert Ross, a non-Indian observer of
 ?Aboriginal Justice? put it:

 ?discussions become a celebration of the rich diversity of life
 rather than a contest between opposing views about what we ?ought? to
 think and feel.? (Ross, 1996,   p. x   )

 Still, however illusive, we believe that there are objective truths
 and standards of justice that transcend the myriad differences and
 subjective perceptions and opinions as to what was/is true or what
 was/is justice. We get closer to those objective truths and forms of
 justice by allowing a full--yet structured--interplay of diverse
 opinions, evidence etc.

 The search for Truth, Justice, Healing, Reconciliation and Prevention
 of Future Abuses are the sacred and  the fundamental imperatives. Any
 attempts to block or thwart these imperatives, bring dishonor not
 only upon the person doing this, but also bring dishonor upon the
 family, clan, Tribe and Nation of that person. An Indian Trial or
 Tribunal is a sacred and a spiritual event as well as a secular one
 and calls for the triumph of the spiritual mind over the physical
 mind. According to Ohiyesa:

 ?We Indian people have traditionally divided the mind into two
 parts--the spiritualmind and the physical mind. The first--the
 spiritual mind--is concerned only with the essence of things, and it
 is this we seek to strengthen by spiritual prayer, ...  The second,
 or physical mind, is lower. It is concerned with all personal or
 selfish matters...? (Ohiyesa, 1993, pp7-8)

 And:

 ?Before there were any cities on this continent, before there were
 bridges to span the Mississippi, before the great network of
 railroads was even dreamed of, we Indian people had councils which
 gave their decisions in accordance with the highest ideal of human
 justice.  Though the occurrence of murder was rare, it was a grave
 offense, to be atoned for as the council might decree. Often it
 happened

 that the slayer was called upon to pay the penalty with his own life.
  In such cases, the murderer made no attempt to escape or evade
 justice. That the crime was committed in the depths of the forest or
 at dead of night, witnessed by no human eye, made no difference to
 his mind. He was thoroughly convinced that all is known to the Great
 Mystery, and hence did not hesitate to give himself up, to stand
 trial by the old and wise men of the victim?s clan.

 Even his own family and clan might by no means attempt to excuse or
 to defend him. But his judges took all the known circumstances into
 consideration, and if it appeared that he slew in self-defense, or
 that the provocation was severe, he might be set free after a thirty
 days? period of mourning in solitude. The ceremonial mourning was a
 sign of reverence for the departed spirit.? (Ohiyesa, 1993, pp.
 33-34)

 And:

 ?Such is the importance of our honor and our word that in the early
 days, lying was a capital offense. Because we believed that the
 deliberate liar is capable of committing any crime behind the screen
 of cowardly untruth and double dealing, the destroyer of mutual
 confidence was summarily put to death, that the evil might go no
 further.? (Ohiyesa, 1993, p. 36)


4. FORM, PROTOCOL AND RITUAL MUST ASSIST AND BE SUBSERVIENT TO THE
SEARCH FOR TRUTH, JUSTICE, HEALING, RECONCILIATION AND PREVENTION OF
FUTURE ABUSES:

 Even the physical layout of the Aboriginal Court must be considered
 to facilitate the search for truth and justice For example:
 ?...putting those tables in a ?circle? shape, hoping that this will
 reduce the adversarial  nature of the process. Instead of having the
 accused and his lawyer sit directly opposite the Crown and the police
 like boxers on opposite sides of the ring, they are spread around the
 circle together with probation officers, translators, alcohol workers
 and anyone else who might have a contribution to make. My own
 impression is that such an arrangement does make people feel more
 comfortable and also contributes to a fuller community participation.
 Perhaps people feel better joining as equals a group discussion aimed
 at finding solutions than they do making formal and solitary
 suggestions to an all-powerful judge.? (Ross, 1996, P. 8)


 Many of the usual processes and tactics associated with the
 adversarial systems of non-Indian Courts often thwart rather than
 assist the causes of truth and justice. Such tactics as forum
 shopping, judge and jury shopping, contrived order of witnesses,
 rhetorical tricks designed to cast

 doubt on or prevent admission of credible evidence, abusing
 witnesses, ad hominem attacks with irrelevant opinion and evidence,
 ultra-formalism or ultra-ritualism, artificial distinctions between
 ?non-argumentative? vs ?argumentative? phases of a trial or evidence
 (all speech is rhetoric in the classical sense--non-coercive forms of
 persuasion), obstruction of full discovery for any party, conscious
 introduction of contrived or partial evidence, rhetorical appeals to
 prejudices, deliberate refusal to pose relevant but uncomfortable
 questions, contrived highlighting of weak points and minimizing
 strong points of an opponents case while doing the reverse for one?s
 own case, use of paid career experts, etc are to be avoided as they
 thwart rather than enhance ?due process? and discovery of truth and
 justice--even for the accused.

 All parties having what they feel to be relevant evidence and opinion
 on a particular matter are urged to participate as a matter of
 duty--to the causes of Truth, Justice, Healing, Reconciliation and
 Prevention of Further Abuses. Further, the search for Truth, Justice,
 Healing, Reconciliation and Prevention of Future Abuses cannot be
 seen as a ?9-to-5? matter and Judicial processes must be conducted
 when and for as long as necessary to serve these and other causes.

 All crimes involve multiple past, present and future spirals of
 cumulative causality, implications on relatives of the accused and
 accusers as well as on the whole society, multiple dimensions and
 therefore requirements of varied areas of expertise. Those
 participating in judicial processes must be selected on the basis of
 demonstrated integrity, commitment and expertise in areas bearing on
 the issues of the judicial processes. In any judicial process, not
 only the accused is being examined, also being examined, is the
 integrity and credibility of the processes themselves, the
 participants in the process, the community sanctioning the process as
 well as core and guiding principles of Indian life and law. There is
 no place for using sacred proceedings dealing with sacred issues for
 self-promotion, grandstanding, rewarding friends and relatives,
 forging businesses alliances, revenge or for any purpose other than
 the sacred search for Truth, Justice, Healing, Reconciliation and
 Prevention of Future Abuses.

 Compartmentation, hierarchies, models, rituals and organizations are
 all creations of human beings for various purposes and represent
 abstractions and conventions that can at best approximate or grasp
 small parts of the immense totality of all the interrelated creations
 of the Creator and creations of the creations of the Creator. The
 answer to the abuses of power and excesses of hierarchies is not more
 checks and balances, formalism, Compartmentation, strict rules and
 counter-rules within hierarchies, but rather elimination of
 essentially formalistic and dysfunctional hierarchies and
 hierarchical relations themselves. Leadership and authority arise
 from service, persuasion and skill and not from some fixed or
 inherited position.

 In the Western tradition, human beings stand just below God and the
 Angels but above all other forms of life and matter based on the
 passage on Creation from Genesis:

 ?God said, ?Let us make man in our image and likeness to rule the
 fish in the sea, the birds of heaven, the cattle, all wild animals on
 earth, and all reptiles that crawl upon the earth...?


 In the Ojibway tradition for example, and quite typical of Indigenous
 thinking in general, any hierarchy is based upon function and
 dependence in the totality of the creation of the Creator. The Order
 of Creation would go: Mother Earth, the plant realm, the animal realm
 and the human realm because without Mother Earth and her waters,
 there would be no plant, animal or human life, and without plant life
 there would be no animal or human life, and without animal life there
 would be no human life and yet Mother Earth, plant life, animal life
 existed and can exist without human life. This alternative world
 view, the Indigenous world-view, which emphasizes?wholeness? in the
 human as well as natural world, which emphasizes complexity rather
 than ultra-reductionism, which emphasizes non-linearity rather than
 linear uni-directional cause and effect, which emphasizes disharmony
 as a social as well as individual pathogen, which emphasizes
 connectedness with other parts of creation rather than
 disconnectedness, which recognizes inevitable change in cycles,
 spirals or patterns,  helps to keep in mind humility and helps to
 balance judicial processes in ways that help to better search for
 Truth, Justice, Healing, Reconciliation and Prevention of Further
 Abuses.

 Processes constructed and run on the basis of adversarial
 competition, ultra-formalism, ultra-reductionism, ultra-ritualism
 ultra-hierarchies, Compartmentation, linear thinking and modeling,
 punishment with no regard to the effects on those connected with the
 person being punished, punishment with no regard to healing or
 reconciliation will more often than not lead to more and not less
 future chains of abuse and dysfunction.

 Often we find that what superficially appeared to be a ?minor? matter
 turned out quite significant or what appears to be a ?major? matter
 turns out to be relatively insignificant--in the scheme and totality
 of things. In Aboriginal Law, the time allotted for investigation,
 inquiry, judgment and disposition is not based upon a preliminary and
 summary judgment about the alleged severity of particular acts of a
 crime. Often as much time or even more will be allotted in a judicial
 proceeding dealing with what many might consider a ?minor? crime
 relative to what others might consider a ?major? crime. Substantial
 time may be allotted to investigating what some consider to be a
 ?minor? question with the result that substantial and pervasive
 probative evidence is discovered.

 Judgmental language and simplistic labels may often lead to
 preemptory conclusions, summary judgments, simplistic and
 reductionistic thinking, obfuscation, hiding or failure to introduce
 significant evidence, failure to pose necessary questions and failure
 to generally pursue Truth, Justice, Healing, Reconciliation and
 Prevention of Future Abuse. As Rupert Ross puts it:

 ?For one thing, English has an extraordinary number of adjectives
 that are not so much descriptions ?of? things, as they are
 conclusions ?about? things...adjectives like ?horrible?, ?uplifting?,
 ?disgusting?, ?inspiring?, ?delightful?, ?tedious? and so on. When
 you really look at them, you discover that they don?t tell us much
 about things-in-themselves, but only about the judgments speakers
 have made about them--and want the rest of us to accept.? (Ross,
 1996, p. 102)


 ?Put simply, I worry that our simplistic, punitive responses to
 simplistic, judgmental labels put us into blind canyons where we
 actually ?contribute? to the development of those one-dimensional and
 dangerous people we are sworn to prosecute.? (Ross, 1996, p106)

 Further, these summary-and-final-judgment nouns and adjectives affect
 not only the integrity and effectiveness of judicial proceedings and
 the name and reputation of the accused, they reflect upon and damage
 the family, clan, tribe and nation of the accused as well. In short,
 they lead to ongoing consequences and further victimization. Speech
 must be careful and focus on the act and its consequences rather than
 on judgments about the actor nature and character.

5. FOCUS ON WHAT A PERSON ?SHOULD? DO RATHER THAN ON WHAT A PERSON
?SHOULDN?T? DO

Indigenous judicial processes are concerned primarily with
establishing what people ?should? do--as members of a family, clan,
tribe and nation--rather than focus on what people ?shouldn?t do. This
may appear to be a distinction without a difference, but in fact it is
a profound distinction.

Instead of long lists of potential offenses (listed as ?should not
do?) and an attempt to cover every possible negative act, with the
implication that if a given act is not on the ?should not do? list, it
is at least not illegal if not permissible, Indigenous Law focuses on
core principles and values to guide general conduct such that if one
followed those principles, each situation or act can be properly
evaluated as to its propriety and proper legality or illegality
without having memorized the ?should not do? list or in dealing with a
potential act not covered on the list. There are many acts that are
not illegal or even regarded as improper or immoral from an absolute
sense but nonetheless might have negative consequences on an
individual committing the act or on others in a particular context.

Instead of something like the ?Ten Commandments? with ?Thou Shalt
Not...?, in Indian life and law there is more focus on ?Thou
Should...--as a family member, a clan member, a tribal member, a
member of a nation, to live a happy life, to treat others as you want
to be treated...













Resources and Sources

1. Chrisjohn, Roland et al. ?The Circle Game: Shadows and Substance in
the Indian Residential School Experience in Canada, Theytus Books,
1997, Penticton

2. Guyette, Susan ?Planning for Balanced Development: A Guide for
Native American and Rural Communities?, Clear Light Books, 1996, Santa
Fe

3. Nerburn, Kent (Ed) ?The Soul Of An Indian and Other Writings of
Ohiyesa?, New World Library, 1993,

4. Ross, Rupert ?Dancing With A Ghost?, Octopus Publishing Group,
Markham, ON, 1992

5. Ross, Rupert, ?Returning to The Teachings: Exploring Aboriginal
Justice?, Penguin, Toronto, 1996

 James Craven
 Dept. of Economics,Clark College
 1800 E. McLoughlin Blvd. Vancouver, WA. 98663
 jcraven@xxxxxxxxx; Tel: (360) 992-2283 Fax: 992-2863
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"Hitler's concept of concentration camps as well as the practicality
of genocide owed much, so he claimed, to his studies of English and
United States history. He admired the camps for Boer prisoners in
South Africa and for the Indians in the Wild West; and often praised
to his inner circle the efficiency of America's extermination--by
starvation and uneven combat--of the 'Red Savages' who could not be
tamed by captivity." ("Adolf Hitler" by John Toland, p. 702)

"Set the blood-quantum at one-quarter, hold to it as a rigid
definition of Indians, let intermarriage proceed...and eventually
Indians will be defined out of existence. When that happens,the
federal government will finally be freed from its persistent
Indian problem." (Patricia Nelson Limerick, "The Legacy of
Conquest: The Unbroken Past of the American West" p338)

*My Employer  has no association with My Private and Protected Opinion*
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