Craven on "Judicial Findings From The Inter-Tribal Tribunal ..."

Les Schaffer schaffer at
Sun Dec 10 08:01:52 MST 2000

[text of Jim Craven's Word attachment, slight reformat]

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
( 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 and Concepts of Aboriginal Life and Law Guiding My
Inquiry and Findings:


"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)


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.


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)


"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.


"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)


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.


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

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

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