[PEN-L:353] corrected part 2 judicial findings

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

Judicial Findings Part II
Inter-Tribal Tribunal on Residential Schools in Canada,
Vancouver, B.C. June 12-14, 1998
James M. Craven, Tribunal Judge
(c Copyright July 15, 1998 All Rights Reserved)


Mission of the Tribunal: My Understanding

     I can only report my understanding of the central mission of the
     Tribunal because the mission as I understood it--or any other
     mission understood by others--was not formally and fully
     articulated, generally understood or pursued through consistent,
     coherent and structured processes and lines of inquiry and
     document gathering.

       My understanding was that the overall mission of the Tribunal
       involved assisting local interests in Canada in obtaining data,
       testimony, supporting documentation and expert opinion on the
       alleged histories, causes, effects, intentions, interests,
       contending perspectives and opinions, legal judgments, ongoing
       chains and spirals of abuse and dysfunction in First Nations
       Communities, cover-ups and intimidation of/retribution against
       past and present victims and witnesses, compensations and
       actual distributions of compensations for alleged victims
       associated with Indian Residential Schools in Canada. I
       understood that we were to assist in the gathering,
       correlating, triangulating , interpreting and questioning  of
       evidence related to allegations of  criminal and/or  ethnocidal
       and/or genocidal intentions, practices, effects and
       implications associated with the setting-up and alleged routine
       practices of the Indian Residential Schools and to do so in
       such ways and through such procedures as to assist in the
       discovering and establishing of  Truth, Justice, Healing,
       Reconciliation and Prevention of Future Abuses for  people,
       groups and institutions alleged and categorized to be
       ?victims? and/or   ?victimizers?--alike.

     My understanding was that we were to conduct full, fair, open and
     honest--for all parties or potential parties concerned--inquiry
     and gathering /examination/interpretation /reporting of evidence
     and opinion. We were not there to question the
     socioeconomic-political system of Canada or the  Sovereignty  of
     the Government of Canada or of any of its Agencies. We were not
     there to intentionally and rhetorically exacerbate past or
     present  wounds, feuds, differences or hostilities. We were not
     there to question the overall theologies or integrity of
     ?institutions? such as the Anglican Church, United Church, Mormon
     Church, Catholic Church or other Churches associated with the
     Indian Residential Schools in Canada. We were not there to assist
     or support personal or wider agenda and activities, interests or
     the embarrassment/demonization of  particular individuals, groups
     or political parties locally. We were not there to use our
     positions or status to forge deals or alliances not related to
     the issues with which the Tribunal was dealing or to engage in
     personal self-promotion, grandstanding, revenge or retribution,
     private business dealing or any other form of conduct that might
     bring discredit upon the Tribunal and its integrity and
     credibility, the issues and evidence with which the Tribunal was
     dealing or any organization associated with the Tribunal. We were
     not there to make
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statements or pre-judgments or pre-findings that might undermine the
credibility and integrity of the Tribunal or its findings.


  My understanding based on reading background materials and with
  discussions with organizers of the Tribunal was that we would be
  dealing with and examining allegations, opinion and evidence related
  to damages against and destruction of  First Nations Peoples
  --individually and collectively--and that the allegations would
  involve some or more than the following allegations of  practices in
  individual cases and patterns of practices as well as possible
  implicit or explicit policies against First Nations Children in
  Residential Schools:

1) sexual and physical torture;
2) murder;
3) coerced and/or deceptive medical experimentation;
4) forced de-Indianization and assimilation;
5) coerced and/or deceptive adoptions;
6) coerced and/or deceptive placements into Residential Schools; 7)
coerced and/or deceptive takings of Indian Lands; 8) coerced  and/or
deceptive alienation of First Nations children from Traditional First
Nations values, practices, dress, communities and support-systems,
families and overall identity; 9) coerced non-Indian diets and food
generally unfit for human consumption thus producing long-term
deleterious effects in First Nations communities; 10) teaching and
promotion of  psychologically-destructive and vilifying  racist myths,
caricatures, false histories, ?spiritual values? etc. to First Nations
and non-First Nations children, adults and communities; 11) coerced
and/or deceptive sterilization of First Nations children; 12)
subjection of First Nations children to educational programs that were
underfunded, staffed with incompetent and abusive individuals,
geographically isolated and structured with programs to de-Indianize
First Nations children and prepare them for life on the poorest and
most isolated margins of Canadian society; 13)  past and ongoing
cover-ups and intimidation of witnesses and victims of crimes and
abusive practices and policies; 14) general abuse and vilification of
First Nations children for speaking Native languages and articulating
or practicing  Aboriginal spirituality; 15) arranging and coercing
abortions of products of rape and sexual abuse of First Nations
children by men in authority; 16) starvation, unprotected and extended
exposure (to the natural elements) and forced labor under unsafe
working conditions of First Nations children; 17) placing
non-infected First Nations children with other children infected with
TB and other communicable diseases;

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18) covert practices and graveyards designed to conceal murder,
neglect and effects of abortions; 19) organized, calculated,
structured and pervasive programs and practices designed for mind
programming and control; 20) inadequate, incompetent and brutal
medical services and practices and withholding of medical services to
children after brutal beatings, sometimes leading to death of First
Nations children; 21) use of  First Nations children as informants and
bullies to enforce Residential School rules, regimens, value systems,
prejudices, retribution and cover-ups; 22) physically and
psychologically brutal shaming, vilification and beating of  First
Nations children in front of other children; 23) isolation and of
First Nations children from their families and communities,  through
location of Residential Schools in geographically isolated areas
(often on islands making escape difficult) and through withholding of
personal property, letters, presents and other forms of communication
between children and their families and communities; 24) forcing
children to fight or engage in sexual activities for the voyeuristic
pleasure of Residential School staff and authorities; 24) failure to
bring incidences and evidence of abuse/criminal conduct to higher
church, local, provincial and federal authorities; 25) failure to
protect children from physical and sexual abuse and murder by school
staff and other school residents; 26) failure to remove known and
provably chronic physical and sexual abusers from positions of
authority and control over children; 27) incompetence and neglect by
Residential School officials relative to educational mandates; 28)
failure of federal, provincial and local governmental authorities to
maintain supervision over and to intervene in behalf of, First Nations
children and wards of the State; 29) failure to adequately fund
Residential Schools relative to mandates governing Church and
Governmental authorities; 30) failure to maintain and/or respect
processes for filing and investigating grievances by First Nations
children; 31). firing and sanctions against people of conscience who
sought to expose and correct alleged abuses of First Nations children;
32) failure to fully and fairly investigate Residential Schools and
their aftermath effects on First Nations children, adults, communities
and survivability--continues to today--and suggest and implement
programs for mitigating and ameliorating damages; 33) failure to
respect and live up to Treaties promising educational and other
services to First Nations children and communities; 34) failure to
seek, structure, ensure compliance and ensure delivery to actual
victims, just and adequate compensation for abuses against First
Nation?s Peoples that already have been stipulated and proved to have
occurred;


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35) all of the above-mentioned--and other not-mentioned--practices and
policies carried out as part of overall, ongoing, forced, and intended
marginalization, vilification, de-Indianization and assimilation of
First Nations People--adding up cumulatively to extermination and
extinction of First Nations Peoples as First Nations Peoples
individually and collectively, and therefore  ?genocide?, against
First Nations Peoples under the articles of the UN Convention on
Genocide, previous Tribunals on War Crimes and Genocide and other
Authorities in International Law and  Common Law of Nations;

     It was my understanding that: the allegations and supporting
     evidence and opinion would be quire serious for the accused as
     well as for the accusers; that allegations would not be taken as
     established facts even where similar allegations had been
     established and stipulated to as facts in other forums; that some
     in the community would regard the Tribunal as ?trouble-making?
     outsiders with no real authority or standing to conduct the
     proceeding; that those against whom allegations had been made
     would be present and fully and freely able to respond to any
     allegations with which they might disagree and/or comment on or
     provide further evidence and opinion on those allegations with
     which they might agree; that the credibility and integrity of the
     Tribunal, its members and organizations with which it had some
     affiliation would be under scrutiny and subject to attack; that
     the causes of Truth, Justice, Healing, Reconciliation and
     Prevention of Future Abuses would be paramount in the mandate and
     focus of the Tribunal; that serious gathering investigation,
     weighing, evaluation and reporting of any relevant evidence and
     opinion would be undertaken. Further, given that evidence and
     opinion gathered previously on the Residential Schools in Canada
     were not properly included in the Royal Commission Report on
     Aboriginal Peoples (RCAP), it was my understanding that this
     Tribunal would be seriously and properly set-up, structured,
     executed, concluded and reported upon to any authorities who
     might be able to assist in dealing with the relevant issues and
     mandates.

     In my opinion, the seriousness of the issues, the very real pain
     and anguish and suffering of the victims, the seriousness of the
     issues and allegations for the accusers and accused and probable
     impacts of any findings were not duly and properly considered. In
     my opinion the following errors were instrumental in severely
     limiting and compromising the work, content, scope of inquiry,
     quality of evidence, respect for accused and accusers,
overall competence, integrity and overall credibility and acceptance
of the Tribunal and any findings:

1) From its inception, the Tribunal was severely underfunded which
compromised duration, scope, content, credibility and integrity of
evidence, opinion and any findings; (the search for Truth, Justice,
Healing, Reconciliation and Prevention of Future Abuses is not a
?9-to-5) proposition and there should be sufficient funding and
competent logistics to ensure that all who want to bring relevant
evidence and opinion may be able to do so;


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2) In my opinion, some of the Tribunal Judges were clearly not
selected and invited by the organizers of the Tribunal on the basis of
demonstrated experience, interest, commitment, capabilities and
expertise related to the probable issues with which the Tribunal would
likely be dealing but rather on some other basis;

3) The role, standing, authority and degree of participation of IHRAAM
was misrepresented and used and promoted in ways that caused some
threats to the credibility of IHRAAM as well as to the Tribunal;

4) The Tribunal Judges were told to watch the nature and content of
any conversations with the News Media and to avoid any appearance of
pre-judgment, bias, hidden agenda or whatever; this advice was
generally followed by the Tribunal Judges and yet not followed by some
of the very same persons who had given such suggestions--the
organizers of the Tribunal and their relatives--who gave the
impression to some of  using the News Media for personal
self-aggrandizement and self-promotion;

5) It is a fundamental principle of Indigenous Law that what may
appear to be trivial may be quite significant and what may appear to
be important may be relatively less-important in the scheme of things
and therefore sufficient time and resources must be allotted to ensure
full, fair and thorough inquiry. Due to lack of proper funding,
inadequate specification,  understanding and execution of the
essential roles of the Tribunal officials and judges, and due to the
summary, precipitous, disrespectful and not-explained removal of key
Tribunal participants like Dr. Robert Ward, the designated prosecutor
who had the best academic preparation and experience along with having
conducted preliminary interviews for his role, insufficient time,
scope and competent inquiry were given to key testimonies individually
and to the testimonies collectively;

6) Contending local groups and interests were not fully, fairly and
evenly accepted by the Tribunal and some favoritism and granting of
insider status compromised the overall fairness, objectivity,
credibility and integrity of the Tribunal;

7) Insufficient attention was paid to and mechanisms were not set up
to handle, credible allegations of explicit and implicit forms of
threats, intimidation and retribution against witnesses and their
families--prior to, during and subsequent to the Tribunal inquiry;

8) Insufficient attention was paid to and mechanism were not set up to
ensure or at least persuasively argue for, attendance at the Tribunal
by individuals and groups representing various sides and contending
allegations related to the issues being dealt with by the Tribunal.
Thirty-seven invited parties failed to show up at the Tribunal of whom
only two gave notice that they would not be attending; this
compromised the ability of the Tribunal to look at issues from
contending perspectives;


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9) Witnesses are apparently sometimes chosen not on the basis of
direct experience or plausible indirect experience--beyond
hearsay--with the issues involved but rather on the basis of
associations--in other domains--with the organizers or participants of
the Tribunal; this left many people with possibly very revealing and
probative evidence unable to testify and/or severely restricted in the
scope and content of their testimony;

10) Rifts and animosities between contending groups and personalities
locally and among participants of the Tribunal--often nominally on the
same side of the issues with which the Tribunal were dealing--were
allowed to invade and to shape or limit some of the content, scope and
actions of Tribunal inquiry;

11) Insufficient time and resources were allotted for preliminary
investigations and gathering of background information  necessary to
properly and fairly, examine, document and thoroughly test
allegations, opinions, evidence being given by contending parties;

12) Some Tribunal participants were precipitously and summarily
demonized,  marginalized or even removed without explanation or
inquiry about their concerns with the result that the Tribunal lost
potential contributions and expertise from those participants;

13) Some of the Tribunal participants engaged in ultra-formalism,
ultra-ritualism, ultra-hierarchicalism, verbosity, pontification,
lecturing of witnesses, favoritism toward some witnesses that
interfered with the full, free, fair and credible inquiry about
relevant issues and the obtaining of real, substantive, verifiable and
probative evidence or opinion leading to probative evidence;

14) The physical arrangements of the furniture in the Tribunal were
more in keeping with the hierarchical, adversarial, ultra-formalistic
and ultra-ritualistic Tribunals of the non-Indian world and may have
prevented or inhibited the full, free, fair and cooperative search for
Truth, Justice, Healing, Reconciliation and Prevention of Future
Abuses;

15) Some of the witnesses preferred to testify ?in-camera? for various
reasons. Inadequate staffing and logistics made this difficult to
accommodate or encourage those who really wished to do so--to get more
complete and accurate evidence and opinion. In one case about which I
know, ?in-camera? testimony was probably or almost certainly  revealed
to one of the persons against whom the allegations of sexual and
physical abuse had been made and this compromised the effectiveness
and credibility of the Tribunal and possibly a witness who trusted us
to keep her testimony confidential--especially from the alleged
abuser;

16) Poor funding and poor logistics, along with conflicting versions
of events and allegations to contending parties resulted in alleged
promises allegedly not being kept, Tribunal participants suffering
unforeseen financial and personal hardships and rifts and feuds
between contending groups and individuals exacerbated rather than
healed. This compromised the overall effectiveness and credibility as
well as the productivity and contributions of individual Tribunal
participants.

     For these above-mentioned and some other reasons, I cannot in all
     honesty provide any of my own definitive ?findings? or  endorse
     any ?findings? of this Tribunal; in my opinion is was seriously
     flawed in its origination, design, staffing, execution,
     structure, content and scope of inquiry. I found some serious
     very compelling testimony and documentation with some credible
     evidence, supporting opinion and consciousness-of-guilt-like
     machinations that supported all of the previously-mentioned 35
     allegations to varying but not to any conclusive degrees. Those
     against whom many allegations had been made were not in
     attendance--for whatever reason. Without a competently designed,
     staffed, structured, executed and  monitored process, accepted by
     contending parties as credible or intending to be credible,
     further evidence on the full scope, intentions, causes, effects
     and agents of the previously mentioned very serious alleged
     crimes when established to have occurred, will remain to be
     discovered and fully documented. And until that occurs, with real
     substantive revelations and real substantive  accountability,
     there can be no real truth, justice, healing,  reconciliation,
     prevention of future abuses and crimes or mitigating the damages
     of ongoing dynamic circles or spirals of abuse, neglect and
     dysfunction from past and present crimes.

     In the next section, I propose to discuss some suggestions for
     future lines of inquiry and probable constraints and obstacles.

 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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