[Marxism] Traditional Native Cultures and Peacemaking Blaze New Trails Today

Hunter Gray hunterbadbear at earthlink.net
Sat Aug 21 04:15:16 MDT 2004


Many of us indeed have long argued that there is far more basic unity in
Native tribal nations -- and perhaps all Fourth World nations globally --
than in the "large" urban/industrial societies.  In addition to being tribal
nations [gemeinschaft, of which Tonnies wrote so well if ponderously], the
respective Native societies are in many respects One Big Family.  Still,
given the normal human vulnerabilities and the very difficult external
pressures to which tribal nations are subjected these days -- economic,
Anglo cultural etc -- things can sometimes become stormy internally.  [Look
at a tribal election.]

Anyway, this is an encouraging policy development at Rocky Boy res.
Actually, this very positive initiative -- which certainly makes excellent
sense -- is not new at all.  As the article in the Havre paper indicates,
broad based and multi-faceted mediation was the general and traditional norm
in the tribal cultures in the "old times" -- and has continued in a de facto
local sense in a number of tribal settings. [Things tribally/culturally, I
should add, are still essentially communalistic with the basic ethos being
one of serving the community.]  The Navajo Nation, now over a quarter
million in population and on a formal res land base bigger than West
Virginia and traditionally somewhat decentralized, has continued to practice
these mediation techniques at the grassroots in many locales since ancient
times. [Navajoland, within and around which I grew up, occupies a great big
piece of northeastern Arizona and western New Mexico and slices of
southeastern Utah and southwestern Colorado.]  However, a couple of years or
so ago, the Navajo, who place a very significant cultural emphasis on
harmony with the Cosmos, made this appealing system its formal
tribal/national policy and it's been working well.

[But do be aware that Native people in the appropriate context can and will
and do fight hard and effectively on many fronts for our natural rights!]

Attached to this post and the article from the Montana paper is an excerpt I
made on a few lists recently dealing with Native sovereignty issues --
including a bit on criminal justice.  H

Tribal court studies traditional justice approach of 'peacemaking'

By Krystal Spring/Havre Daily News/kspring at havredailynews.com   [Montana]

ROCKY BOY AGENCY - The Chippewa Cree Tribal Court is attempting to resurrect
the traditional justice method of peacemaking and mediation, a tool tribal
officials say their elders used in the past.

"Peacemaking is something the tribe has historically done to mitigate
disputes, and we're just looking to go back to those methods," said Duane
Gopher, chief judge for the tribal court.

"Peacemaking on Rocky Boy," a three-day workshop beginning Tuesday at Stone
Child College, aims to teach tribal members dispute resolution procedures -
mediation tools that rely on the abilities of both disputing parties to
reach their own resolution, with the assistance of a trained "peacemaker."

The workshop will be led by University of Montana adjunct professor Art
Lusse, through the Division of Educational Research and Services at UM. It's
funded through a federal grant DERS received from the U.S. Department of
Justice's Community Oriented Policing project.

DERS has offered similar peacemaking workshops on the Crow, Northern
Cheyenne, Salish and Kootenai, and Fort Peck reservations.

"We often refer to the workshops as an excavation," Lusse said. "These
tribes used mediation a long, long time ago. We're trying to help them bring
that back."

Tribal court officials said they're eager to find an approach to justice
that's tailor-made to fit their tribe's needs.

"The traditional, western-style justice system does not work well for our
people," said Walter Denny, a juvenile probation officer with the Chippewa
Cree Tribal Court. "Mediation will hopefully allow us to resolve disputes
and conflicts with the entire community's involvement, like our people have
done in the past."

Lusse said traditional Native American justice was "horizontal" as opposed
to the Anglo-European "vertical" system of justice. While a vertical system
relies heavily on a power hierarchy, where decisions are dictated by a
judge, a horizontal system incorporates basic fundamentals of mediation,
focusing on problem solving and healing for both victim and offender. Lusse
said vertical justice rarely makes an impact in helping to solve the
underlying issues that initially caused the dispute.

"In horizontal justice, everyone is equal, everyone shares the problem and
everyone works on the problem together to get it resolved," Lusse said.
"Unlike courtroom cases, no one wins, no one loses."

Mediation is a type of restorative justice that can be applied in many
contexts, from child custody cases to juvenile crimes. Tribal officials in
Rocky Boy said they're anxious to find new ways to deal with youth

"This approach allows the juvenile offenders and the community to come
together to resolve problems, making the situation better for the community
as a whole," Lusse said.

Jodi Murie, a juvenile probation officer with the Chippewa Cree Tribal
Court, said finding alternative sentences and ways of dealing with juvenile
offenders may help youths find their identity and reconnect with the tribe,
as the entire community becomes involved in the justice process.

"It's the whole, 'It takes an entire tribe to raise a child' philosophy,"
she said.

"Mediation will help us explore alternatives not available through the
traditional litigation process," Gopher said. "It will allow us to work for
a peaceful solution to problems, rather than a battle in court."

Gopher said both disputing parties must consent to mediation before it's
used as an alternative to solving a dispute in court. Tribal court officials
said they're hopeful tribal members will embrace the traditional justice
method of the past.

"We're hopeful that mediation can become the first step in dealing with
disputes," Denny said. "The court will always be there as a backup system."

Next week's workshop will be the first of three, teaching tribal
participants the basic fundamentals of mediation. Those who complete the
training are eligible to receive course credits from Stone Child College and
national accreditation through the Association for Conflict Resolution.

Anyone is welcome to attend the mediation workshop, which begins Tuesday at
8:30 a.m. in Room 205 of Kennewash Hall at Stone Child College. For more
information, call 395-4735.



 A Native  tribal nation, like all nations, has inherent
 sovereignty.  Full sovereignty is the full and ultimate control by  the
 tribal nation of its land, its people, and its affairs.  Much sovereignty
 has been lost -- however temporarily -- by the tribal nations in both the
 U.S. and Canada  but some functional sovereignty does remain.

 Native sovereignty has been badly eroded.  In the United States, the
current situation is referred to as "residual" or "limited sovereignty" -- a
tribal nation has control over some dimensions but not over others. The
fight is always to preserve and to expand sovereignty.  Sovereignty,
obviously, is power -- and protection and security -- and critical to
individual and societal well-being.

A Federally recognized tribe today in the U.S. has these powers in the
context of "limited" or "residual" sovereignty:

1] Tribes can govern themselves administratively  and judicially -- under
the regulations of the Indian Reorganization Act   [1934] and subject to the
Major Crimes Act  [1885], Public Law 280 [1953] and the Indian Civil Rights
Act [1968.]

2]  Tribes can tax their members and tax outside business enterprises
functioning on the reservation.

3]  Tribes can handle domestic relations.

4]  Tribes can apportion tribal property [e.g., homesites.]

5]  Tribes can regulate inheritance.

6]  Tribes can determine tribal membership.

 Obviously this excludes much from "the full and ultimate control by  the
tribal nation of its land, its people, and its affairs."

As just an example, let's look at the criminal justice situation on a
Federal Indian reservation today:

A tribe CAN arrest and prosecute an Indian who commits misdemeanor crimes
within the boundaries of the reservation.

A tribe CANNOT arrest and prosecute anyone who commits defined felony
crimes on its reservation.  In the greatest majority of cases, this power
is held by the Federal government under the Major Crimes Act of 1885
-- although a non-Indian to non-Indian felony on a reservation is turned
over to state officials.  In a small minority of cases, however,
Public Law 280 [1953] gives  all felony jurisdiction to the state.

[PL-280, BTW, was part of the infamous "Termination Package" of the
reactionary 1950s and beyond which included, in addition to 280, formal
efforts to terminate treaty rights -- and although this was kept at arm's
length by most tribes and eventually ended and reversed as policy, played
hell with the Menominee and Klamath and a number of other affected nations.
Termination efforts included, too, the urban relocation scheme which
maneuvered tens of thousands of Native people into the cities with  both
"the stick" and  "pie in the sky" promises and dumped them there sans
Federal Indian benefits.]

In 1978, the US Supreme Court issued the Oliphant decision which prevents
tribes from prosecuting non-Indian offenders on its reservation.
Immediately following this, I had the interesting experience of spending a
day discussing Oliphant and its implications at a  special
workshop for Navajo tribal police at Window Rock. [I handled the Criminal
Justice curriculum at Navajo Community College.] It was clear that massive
confusion was fast developing and that the only immediate solution was
cross-deputization of tribal police by state authorities. [The Navajo Nation
is bigger than the state of West Virginia and, in this case, Arizona, New
Mexico, Colorado, Utah are involved.]  Cross-deputization in Indian country
generally came to pass quickly, enabling a cross-deputized tribal police
officer to arrest a non-Indian on the reservation -- but the non-Indian
would have to be turned over to state or Federal officers. Further, only
rarely was a state cross-deputized tribal officer able to arrest someone on
state jurisdiction.

If this was not confusing enough, the U.S. Supreme Court in the 1990 Duro
decision sought to prevent  a tribe from arresting and prosecuting Indians
of other tribes on its reservation!  This fast-developing and completely
bizarre twist led Congress to forthwith pass special "blocking" legislation
which was made permanent in 1992.  Thus Duro has been effectively nullified.

And the January 21 2004 USSC decision -- Lara -- conclusively invalidated
Duro.   But, unfortunately, it did not touch Oliphant.

This has led a great many of us to call for restoration of full Native civil
and criminal jurisdiction [ jurisdiction over everyone!] on the

The completely tangled criminal justice jurisdictional situation on Federal
Indian reservations epitomizes the very complex mess in which most Native
people are caught up today.

Hunter Bear

HUNTER GRAY  [HUNTER BEAR]   Micmac /St. Francis Abenaki/St. Regis Mohawk
Protected by Na´shdo´i´ba´i´
and Ohkwari'

In our Gray Hole, the ghosts often dance in the junipers and sage, on the
game trails, in the tributary canyons with the thick red maples, and on the
high windy ridges -- and they dance from within the very essence of our own
inner being. They do this especially when the bright night moon shines down
on the clean white snow that covers the valley and its surroundings.  Then
it is as bright as day -- but in an always soft and mysterious and
remembering way. [Hunter Bear]

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