JUSTICE, INDIGENOUS RIGHTS &
RESTORATIVE JUSTICE, WOMEN, 60'S SCOOP, HAUDENOSAUNE GREAT LAW, 

 Some Are More Equal Than Others!

 

Sheila M. Conway (Gandoox), Coast Tsimshian Elder
 Oct. 3, 1913 -
Feb. 8, 2014

"We must broaden our way of thinking so that it recognizes the world as one human family. We are all children of one blood. It can be no other way, for there has to be a central source of all humanity where all living beings were created. With the help of our Ancestors, we have the ability to find out things for ourselves and put them together usually for the greater good....Remember, when the flood recedes, clear water and an enriched land is left."

"Dignity is always on the side of the person on the receiving end of a racial slur." 

 

 

WHAT IS ABORIGINAL JUSTICE?

  • Internal community disputes concerning members of the Native community only, and occur entirely within that community. Community-based solutions are the most appropriate for these types of disputes.

  • Reforms to the mainstream system are necessary for disputes which involve Native people and federal or provincial laws. Most of these disputes arise in the criminal and family law areas. In the past, the quality of justice Native people have received in these disputes has often been poor.

  • Disputes which involve Native rights can arise when hunting, fishing or other charges are brought against Native individuals.

  • Disputes can also arise in the context of land claims and self-government negotiations. These disputes require the balancing of interests of Native and Non-Native people. Therefore, decisions should be made by tribunals which include both.

  • As in apartheid South Africa, the rampant criminalization of Indigenous people in Canada is not confined to heightened periods of resistance but is an everyday phenomenon. Just as prisons became filled with Black men in post-bellum United States, today prisons are described as the new residential school system for Native youth. In provinces such as Saskatchewan, 80% of prisoners are Indigenous. If you are Native in the borders defined as Canada, you are ten times more likely to be imprisoned, though you represent approximately 4% of the population.

 

60's SCOOP

Until August, 2016, this was another little known historical insult perpetrated on Indigenous children. Dozens of supporters rallied outside a Toronto Courtroom on Tuesday, August 23, 2016, where an Ontario Superior Court judge will hear opening arguments for a summary judgment in a class action lawsuit against the federal government by survivors of the Sixties Scoop. At the heart of the Ontario lawsuit, is a federal-provincial arrangement in which Ontario child welfare services placed as many as 16,000 aboriginal children with non-native families from December 1965 to December 1984.

"Thousands of First Nations, Métis and Inuit across Canada who were ripped from their homes as children are getting their day in court after a years-long struggle in what has become known as the “Sixties Scoop,” a painful, but little-understood chapter of Canadian histor.y

The so-called scoop happened between the 1960s and the 1980s and saw thousands of aboriginal children taken from their homes by child-welfare service workers and placed with mostly non-aboriginal families. In some cases, children were sent to live with families in other provinces, the United States and the U.K., often without the consent of their parents." (Global News, August 23, 2016)

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"Statistics from the Department of Indian Affairs reveal a total of 11,132 status Indian children adopted between the years of 1960 and 1990. It is believed, however, that the actual numbers are much higher than that. While Indian Affairs recorded adoptions of ’status’ native children, many native children were not recorded as ’status’ in adoption or foster care records. Indeed, many ’status’ children were not recorded as status after adoption. Of these children who were adopted, 70% were adopted into non-native homes. Interestingly, of this latter group, the breakdown rate for these transracial adoptions is also 70%!.

Many of the adoptees, who are now adults, are seeking to reunite with birth families and communities. A substantial portion of these adoptees face cultural and identity confusion issues as the result of having been socialized and acculturated into a euro-Canadian middle-class society. For transracial adoptees, identity issues may be worsened by other problems arising during the search and reunion experience. As one author put it, the identity issues of adoptees may be compounded by being reacquainted with one of the most marginalized and oppressed group in North American society.

There are lots of adult adoptees searching for families, and families searching for adoptees. As a result, several First Nation/aboriginal reunification programs have sprouted up in Canada. These links are available below, and some have toll-free numbers. For adoptees who are not sure where their roots are, calling any of the agencies can be a first step. They will direct you to an agency or band or provincial post-adoption office that can help. Although Saskatchewan currently does not have a Native repatriation program, Saskatchewan Social Services has a part-time Repat worker who can assist at Post Adoption Registry, 1920 Broad Street, Regina, SK S4P 3V6, (306)787-3654 or 1-800-667-7539.

For many adoptees and birth families, it has been beneficial to utilize the services of experienced Repatriation workers. These individuals can assist all parties in the emotional and psychological preparation for reunion." By Dr. Raven Sinclair ravsin@sasktel.net (Taken from http//www.originscanada.org/the-stolen-generation)

The above article states the facts, but cultural confusion often came in the form of complete denial of cultural roots. “I lost everything, including my name. I lost my family. I lost my language. I lost everything about my culture,” Martel told The Canadian Press. “This should never have happened. It was wrong.” (Marcia Brown Martel, Temagami First Nation)  Many adopted children were subject to violence, much like residential school atrocities.

This group was NOT included in the Federal apology, or any other apology for that matter. It was acknowledged, however, in the Truth and Reconciliation Commission Report.

By the end of the 1970s, the transfer of children from residential schools was nearly complete in Southern Canada, and the impact of the Sixties Scoop was in evidence across the country. In 1977, Aboriginal children accounted for 44 per cent of the children in care in Alberta, 51 per cent of the children in care in Saskatchewan, and 60 per cent of the children in care in Manitoba.”

It was another of Canada's dirty little secret's as regards the subjugation of Native people. By the mid 1980's the practice was condemned by Ontario Chiefs, as well as a Manitoba judicial enquiry and eventually discontinued.

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RULING BY THE SUPREME COURT OF ONTARIO

FEBRUARY 14, 2017

"For the reason set out above, when Canada entered into the 1965 agreement and over the years of the class period, Canada had a common-law duty of care to take reasonable steps to prevent on reserve Indian children in Ontario, who had been placed in the care of non-aboriginal foster or adoptive parents, from losing their aboriginal identity. Canada breached this common-law duty or care.

The ruling could cost Ontario over one billion dollars as it makes amends for “cultural genocide”

60's SCOOP, TRAGIC LEGACY

"The passage of the Child and Family Services Act of 1984 ensured that native adoptees in Ontario would be placed within their extended family, with another aboriginal family or with a non-native family that promised to respect and nurture the child's cultural heritage. Aboriginal peoples also began to play a much greater role in the child welfare agencies that served them, and the numbers of native adoptees in general began to decline as more stayed with their birth parents.

However, the act also dictated that old birth records remain sealed, unless both the birth parent and the child asked for them. This has helped keep the period in darkness and frustrated attempts by adoptees to learn about their roots. Those who now feel they were victimized by the adoption process have an extremely difficult time finding out who they are."

PERMANENT SCARS

"Just as the closing of the residential schools did not mean their legacy of suffering instantly vanished, so the end of the Sixties Scoop did not mean that all the native adoptees who were farmed out to abusive or alienating non-native families suddenly found themselves with a clear-cut identity or a secure place in society.

Indeed, many still found themselves not only "torn between two worlds," but literally unsure if they were Native at all, and not French or Italian as their adoptive parents claimed. Their birth records were sealed and often amended to include the names of the adoptive, rather than biological, parents. Moreover, their adoption records were in many cases inaccurate, incomplete, falsified or simply missing. As a result, many native adoptees who did try to locate their birth parents or confirm their native status wasted literally decades on failed searches or frustrating battles with Children's Aid authorities or Indian Affairs officials.

http://www.wrcfs.org/repa/stolennation

 

60's SCOOP, CONTINUED

Linda Diebel, November 5, 2011

National Affairs Writer, Toronto Star

 

"The Harper government is fighting a class action lawsuit by aboriginal children who argue the loss of their culture in foster and adoptive care was a wrongful act — a case that could make western legal history.

Although Ontario Children’s Aid agencies took 16,000 children from their families during the so-called Sixties Scoop and placed them in non-aboriginal care, the multi-million-dollar lawsuit names only the Attorney General of Canada. Ottawa is constitutionally responsible for native peoples.

Ottawa quietly appealed the lawsuit in a Toronto courtroom on Oct. 28 — a year after it was certified by the Ontario Superior Court of Justice.

As a result, the case hasn’t gotten to court almost three years after it was filed.

Taken as children, the plaintiffs are now middle-aged and, in many cases, desperate to find their roots. They tell stories of abuse, prejudice, loneliness and isolation. They convey a sense of having been treated like commodities rather than human beings. Accounts suggest many were bounced around — even from country to country — with nobody keeping track.

Marcia Brown, 48, is a lead plaintiff on the case. Ontario Children’s Aid officials took her from the Beaverhouse First Nation in northeastern Ontario when she was 4.

Brown, who’s Ojibwa, went from foster homes to an adoptive home at 9, where she says her non-aboriginal mother tried to wash off her “dirty brown” colour and burned her stuffed tiger full of “Indian bugs.” After the case was filed in early 2009, she told the Star: “I knew God himself didn’t want me.”

Jeffery Wilson, who represents the Aboriginal plaintiffs, criticizes Ottawa for tangling up the suit with legal wrangling paid by taxpayers.

“The attitude of the Crown suggests to my clients that their culture is worth less than nothing,” said Wilson, an expert in children and the law. Co-counsel Morris Cooper specializes in class action suits.

Says Cooper: “You’re dealing with a defendant (Ottawa) with bottomless resources and certainly no interest in seeing any resolution to this litigation.”

From her Kirkland Lake home, Brown says she’s disappointed by the appeal. She believes it contradicts public rhetoric about justice for First Nations and Prime Minister Stephen Harper’s apology to the aboriginal survivors of residential church schools. The “kill the Indian in the child” mentality of the past is supposed to be defunct.

“It’s the same thing,” says Brown, of the Sixties Scoop. “I look at this appeal as a lack of respect for our rights and culture. It’s just wrong.”

When she was 17 and living in Texas with her adoptive mother, the woman took her to the Houston airport, handed her a ticket to Canada and sent her packing with nothing but a suitcase filled with her little girl clothes.

“I didn’t get to speak in my own tongue to my grandmother before she passed away,” she says. “I didn’t fit in anywhere. I saw no difference between myself and a puppy or kitten up for adoption.”

“I will never give up . . . . We live in a beautiful country but a great mark — the unpleasant history with the aboriginal people — stains Canada. The Canadian public doesn’t know the truth about what happened to the children.”

In a 2010 update, Wilson wrote to aboriginal leaders: “For the first time in western law jurisprudence, a case will proceed on the basis that loss of culture is can be litigated as a wrongful act.”

Asked why Ottawa is fighting the claims of aboriginal children, an Aboriginal Affairs spokesperson referred the Star to the justice ministry. A fax from justice said it would be “inappropriate” to comment.

“On the matter of costs (of the federal legal team), I will refer you to the department’s access to information and privacy office . . . contact information below,” the fax says.

Rob Lackie, 41, an Inuk from Happy Valley in Labrador, was also part of the Sixties Sweep (which actually ran from 1965 to 1985 with Ontario officials). Much of his past remains a mystery to him.

It’s not clear how Ontario Children’s Aid officials were able to offer him for adoption in 1974 to a couple from Georgian Bay. They flew to Newfoundland, picked him up in Bay Bulls and, then back in Ontario, finalized the adoption in Simcoe County.

He was 4 and had already been through three foster homes. With two fair, blue-eyed siblings, he realized he was different but didn’t know about his Inuit birthright until he was 11. He didn’t meet his biological mother until 2006.

He says the biggest loss was growing up without the rich language and culture of his birth. For that reason, he believes authorities should have focused on finding aboriginal families for the children. Lackie, who lives in Toronto, says: “I always felt as if a big part of my life was missing.”

His adoptive parents were kind, but unable to preserve his heritage. He has spent the last few years learning about the Inuit culture and taking classes in the Inuktitut language.

For the first time, too, he met his sister who lives in the U.S. They were separated and he says she doesn’t qualify for the class action suit because she’s an American citizen.

During the certification hearing in 2010, Wilson cites an exchange with Superior Court Justice Paul Perell. He says Perell inquired what would happen if 16,000 Jews in Canada similarly lost their cultural identity.

Wilson paraphrases his response: “Well, your honour, there would be a huge uproar if 16,000 Jews lost their culture . . . (as there would be) with 16,000 Muslims or 16,000 Hindus.”

This prompted a clarification that only with First Nations people is there a clear constitutional obligation by the federal government.

A decision on the appeal — before a three-member tribunal that includes Associate Chief Justice J. Douglas Cunningham — is expected this fall.

Since the Toronto case began, similar claims have been launched in B.C. and Saskatchewan.

The practice of ignoring cultural identity is supposed to be over.

But in her 2008 annual report, then-federal auditor Sheila Fraser criticized Indian Affairs for failing to oversee the “cultural appropriateness” of child-care services for aboriginal children.

60's SCOOP, LEGAL CHALLENGE QUASHED


Linda Diebel, January 26, 2012
National Affairs Writer, Toronto Star

"The federal government has won its appeal in Divisional Court against a class-action lawsuit on behalf of 16,000 Aboriginal children taken from reserves in Ontario in what's known as the "Sixties Scoop." (Since overturned, and Ontario Supreme Court is hearing the case as of August, 2016) The decision is seen as a major setback for Aboriginal plaintiffs, now adults, who allege Ottawa stripped them of their cultural identify by sending them off as children to non-aboriginal homes. Many told stories of abuse, alienation and isolation in foster and adoptive homes in Canada and the U.S."

The decision has caused quite a controversy among legal pundits across the land.  Superior Court Judge, Paul Perell appears to be the fall guy. He apparently certified the class-action suit with the provision that the plaintiffs file an amended statement of claim. The Divisional Court ruled that this was prejudicial to the federal government because the amendment appeared to be pre-approved.

Isn't it enough to just make you gag? Hiding behind the narrow parameters of legal opinion, and that is what it is, an opinion. The lawyers for the plaintiffs will fight on. First to win the right to appeal the Divisional Court ruling and then win the appeal.  Similar lawsuits are raging in B.C., Alberta and New Brunswick.  On top of that the Division Court said that Justice Perell could not hear any of the appeals" Poor guy, damned by his fellow judges for making a correct ruling, just not one that suits the Feds.

It's costing the tax payers millions of dollars because of the systemic racism of the Federal Government to once again have to admit they were wrong in the horrendous treatment of thousands of Aboriginal children who are CANADIAN CITIZENS!

IS ABORIGINAL CRIME A SOCIAL OR CRIMINAL PROBLEM?

Poverty, poor education, unemployment, substance and sexual abuse, dysfunctional families, are problems prevalent in both Aboriginal and non-Aboriginal societies. Studies show, that most of the crimes committed by Aboriginal offenders are both petty in nature and drug/alcohol-related. In addition, racial marginalization and the disproportionately high incarceration rate of aboriginal offenders, suggests that restorative justice needs to focus on social rather than criminal issues. A justice system that is not responsible to the experiences and needs of Aboriginal people actually contributes to these high aboriginal imprisonment levels. In other words, there is law, but is there justice?

The above is a discussion that I've had with a wide variety of audiences and post-secondary educational institutions I.e., criminal justice courses, political science, sociology, social work, police foundations).  Talk to me about a visit to your event.   

VOICE@SHANNONTHUNDERBIRD.COM

 

UNITED NATIONS DECLARATION OF HUMAN RIGHTS OF INDIGENOUS PEOPLE

The United Nations stated that human rights are universal, indivisible and interdependent; indeed, human rights are what make us civilized. When we speak of the right to life, freedom, dissent and diversity, we are speaking of tolerance to choose our own social, political and economic paths. The former UN Secretary, Kofi Annan said,

"The Declaration [refers to Universal Declaration of Human Rights] rests on a basic premise that when the rights of human defenders are violat;ed, all our rights are put in jeopardy and all of us are made less safe."

If the foregoing statement is "universally" accepted, then why did the United Nations defeat the Proposed Declaration on the Rights of Indigenous people? Who, then has the responsibility for determining and upholding universal human rights? Why do atrocities around the world continue to occur? Can we conclude that the United Nations does not (or, perhaps, cannot) always enforce its own mandate? If the rights of Indigenous people around the world can be violated without warning, for example, as have the rights of so many people from all backgrounds, it would seem that everyone's rights today are also up for grabs.

Excerpts from the United Nations Declaration of Human Rights, December 10, 1948

Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1. All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

 Article 2. Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

 Article 3. Everyone has the right to life, liberty and security of person.

Article 4. No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

 Article 5. No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

 Article 6. Everyone has the right to recognition everywhere as a person before the law.

 Article 7. All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

 Article 8. Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

 Article 9. No one shall be subjected to arbitrary arrest, detention or exile.

Article 10. Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

 Article 11. (1) Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence. (2) No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

 Article 12. No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

CLICK HERE FOR FULL DOCUMENT:

 http://www.un.org/en/documents/udhr/index.shtml

DECLARATION ON THE RIGHTS OF INDIGNEOUS PEOPLES

After twenty two years of discussion, the declaration was finally adopted by the General Assembly, Resolution 61/295 September 13, 2007

The General Assembly,
Guided by the purposes and principles of the Charter of the United Nations, and good faith in the fulfilment of the obligations assumed by States in accordance with the Charter,


Affirming that indigenous peoples are equal to all other peoples, while recognizing the right of all peoples to be different, to consider themselves different, and to be respected as such,

Affirming also that all peoples contribute to the diversity and richness of civilizations and cultures, which constitute the common heritage of humankind,

Affirming further that all doctrines, policies and practices based on or advocating superiority of peoples or individuals on the basis of national origin or racial, religious, ethnic or cultural differences are racist, scientifically false, legally invalid, morally condemnable and socially unjust,

Reaffirming that indigenous peoples, in the exercise of their rights, should be free from discrimination of any kind,

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,

Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States,

Welcoming the fact that indigenous peoples are organizing themselves for political, economic, social and cultural enhancement and in order to bring to an end all forms of discrimination and oppression wherever they occur,

Convinced that control by indigenous peoples over developments affecting them and their lands, territories and resources will enable them to maintain and strengthen their institutions, cultures and traditions, and to promote their development in accordance with their aspirations and needs,

Recognizing that respect for indigenous knowledge, cultures and traditional practices contributes to sustainable and equitable development and proper management of the environment.


FULL DOCUMENT: http://www.un.org/esa/socdev/unpfii/en/drip.html

Four countries did not approve the declaration: Canada, United States, Australia and New Zealnd. the irony is almost too painful to comment on. These are four of the major countries that have historically oppressed and disenfranched Indigenous groups and continue to do so.

 NOTE: Australia and New Zealand have since changed their vote in favour of the declaration, which leaves Canada and the United States as the holdouts. it staggers the mind.

 

DEMOCRATIC NATION BUILDING

Many of today's band councils seem unable to achieve a balance that will satisfy everyone and meet the needs of all. This is further aggravated by the fact that individuals compete for political power and the more dishonest and underhanded ones seek to use criteria which exclude those who have historically been disadvantaged (i.e., women) in order to advance their personal ambitions. It  creates a climate of fear, non-support and despair.  Some of us have learned the non-Native ways well.

 When it is done correctly, nation building among Indigenous communities can be a glorious accomplishment. Wherein Colonialism sought to divide and conquer, Indigenous identity is tied up in the building of holistic and harmonious communities by intelligent consensus. In other words, nation building relies on objectivity, compassion, trust, courage and respect for all members of the nation. 

 In the past women played a critical role in facilitating an harmonious environment and the tribes hummed for 60,000 years. Is it so difficult to make the leap and  acknowledge that women and men can sit together in a dignified manner and engage in dialogue that will see the tribes safely through the 21st century?  Past and present social and combative issues continue to cast a dark shadow over attempts to resolve gender issues. We simply have to believe that we can do this. It requires respect for each other's intelligence and the will to place the health and safety of the whole community over petty power struggles.

 Only in the resolution of gender will communities be able to move in an equitable manner towards addressing such things as democratic self-government, sustainable economies, management of natural resources and environment, and most importantly, cultural continuity.  After all, it is the women who create the stories.

 



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The following is taken from; Aboriginal Law Handbook, 2nd ed., by Shin Imai.

HOW DOES LAW-MAKING WORK BETWEEN GOVERNMENTS AND INDIGENOUS PEOPLES?

The relationship between the application of federal laws and provincial laws is complicated.

  • The Federal Government can make a wide range of laws in relation to Natives or Native lands. One example of a federal law is the Indian Act of 1876. This law addresses many areas which would normally be under provincial jurisdiction including education, wills and ownership of property on reserve.

  • The general provincial laws which apply to everyone in the Province can apply to Natives as well, unless those laws relate to something special about being a "Native." For example, a provincial law about traffic can apply to Natives, even on a reserve, because driving a car has nothing to do with being Native. However, a provincial law cannot take away a child’s status as a registered Native.

The final complication is found in s.88 of the Indian Act which makes provincial laws applicable to Natives under certain circumstances. While this section plays an important role in the past, its current relevance to the application of provincial laws is in transition.

 

"Among the Indians there have been no written laws. Customs handed down from generation to generation have been the only laws to guide them. Every one might act differently from what was considered right did he choose to do so, but such acts would bring upon him the censure of the Nation....This fear of the Nation’s censure acted as a mighty band, binding all in one social, honourable compact."

George Copway, 1818-1863
Ojibwa Chief

 

 

WHAT IS RESTORATIVE JUSTICE

First, let me tell you that is it NOT what a recent National Post article snidely said, "a group hug for offenders."  I'm not sure where such thought processes come from except from the minds and pens of those who are entrenched in the idea that incarceration actually works!  Corrections Canada is one of the largest corporations in this country, and unless it has prisoners, prison does not work.

What makes it worse is that Canada's First Nations population comprises approximately 2.7% of the thirty-three million of us. Yet, Indigenous offenders comprises a little over 18% of the prison population! Something is wrong, if that number continues to remain as consistent as it does. Corrections Canada is making some reluctant moves in the direction of restorative justice issues by introducing, for example, sweatlodges and Indigenous Elders into prisons across Canada. However, the programmes are hardly consistently applied and woefully under-funded.

Having worked with youth in corrections, I can attest to the fact that payment for services rendered is flat out insulting to those of us committed to the healing of our people. The prison system is a huge employer with huge budgets. It is akin to seriously trying to find a cure for cancer, what would have happen to all the research, development, political and social organizations if an actual cure was found. Perhaps it is by design, who knows, but as long as the focus is not on healing but in incarceration nobody wins but the bottom line of the corporation.

Restorative Justice is also NOT about:

  1. Mediation. In a broad sense mediation is about reconciling opposing factions. This is not the goal of Restorative Justice.

  2. Primarily forgiveness and reconciliation.

  3. Replacing the current legal system.

  4. Replacing prison.

  5. Serious crimes such as murder, and repeat hard-core offenders.

Restorative Justice IS about:

  1. Social Harmony

  2. Dispute Resolution of a holistic nature.

  3. Peacemaking and the healing of the WHOLE person, family, victim, community.

  4. Placing the main focus on the victims, addressing their concerns and needs. It offers hopeful justice for them. By starting with the victim automatically leads to the next step, who is responsible for restoring  justice to them. Therefore, questions such as Who was hurt and why? What do they need? Whose responsibility is it to satisfy those needs? In other words, placing the focus on putting it right.

  5. The Six 'Rs' - Respect, Repair, Responsibility, Reintegration, Relationship, Restoration.

I have just finished writing a textbook for an Ontario High School in which Justice issues are discussed in some detail including the Gladue Court embedded in the current justice system. It really has at its root RESPECT because it allowed for all parties involved an opportunity to provide input and to participate in the process as completely as possible. The process recognizes the integrity of hearing everyone without judgment as clarification is provided from each person involved. It takes tremendous trust and faith that restoration will be made in a manner that is just, honest and respectful.

Important & Interesting Note: When the State becomes the primary victim, that is its laws (i.e. criminal code) have been violated, then it automatically shoves aside victim's rights and the community. They do not have the opportunity of coming together to resolve conflicts because the state's interests have to be served first.

Restorative Justice is also not new

All across Asia, interest in restorative justice has been focused on Juvenile justice.  In his book, A Spiral of Success: Community Support is Key to Restorative Justice in Japan, John Haley writes that Japan has been the most successful industrial democracy in dealing with crime. "Japanese authorities have learned from experience that offender correction and restoration to the community are essential elements of an approach that has proven to be effective in correcting socially deviant behavior. What has developed is a spiral of success, with law enforcement officials, community members, criminals, and victims working interdependently to prevent crime and reintegrate offenders back into the community."

 

SENTENCING CIRCLES

Traditional Aboriginal sentencing circles have been integrated into the Canadian justice system in several Native communities. Instead of meting out punishment such as jail terms, circles focus on healing the victim, perpetrator and community. The circle is a powerful alternative to prison terms imposed by courts -- not only for Aboriginal people but, potentially, for all communities.  The high Native prison population in Canada is of concern to political leaders but not so much that finding long-term solutions should become a top priority.  It is a slow process.

The introduction of Native sentencing circles includes the critical element of healing - not only the perpetrator, but the victim and the whole community.  Community involvement is integral to the success of sentencing circles because it is ultimately the community who feels responsible for the wrongful act on the part of one of its members. Rupert Ross' book, Returning to the Teachings, has a thoughtful look at this method of justice.  He also provides first-hand examples that he witnessed.

The following is an excerpt from, Moving Toward Native Justice: Intercultural Communication in Aboriginal Sentencing Circles in Canada, by Jean-Paul Restoule

"Sentencing circles are not perfect. However, they are, for Native people, an improvement over the Canadian court system in many ways. They attempt to heal the offender rather than merely punish him. They give Native offenders a sense of self-esteem. They restore the relationships and health of the community. They save money by reducing rates of recidivism (Mandamin, 1996), by reducing both the number and length of prison sentences, and by reducing the amount of time spent in court hearing cases. Although successful in addressing the specific cultural situation of Indigenous peoples, this process need not be limited to Native offenders. There are now some initiatives to allow non-Native people, in particular circumstances, to submit themselves to the process of the sentencing circle as an alternative to traditional court procedures. One can see the benefit this system would have in dealing with young offenders and offenders with drug and alcohol abuse problems. The hurdles that currently face the sentencing circle are awareness and education.

Media representation of sentencing circles may be able to foster more effective inter-cultural communication between Native people and Canadians. If presented properly, the sentencing circle has the potential to challenge cultural stereotypes of the 'criminal Indian' to which many Canadian people mistakenly cling. However, a backlash might be expected from people who would see the sentencing circle as a way of allowing Aboriginal offenders to be handled with kid gloves.

The sentencing circle is not an infallible method for all legal cases. Aboriginal people themselves executed very severe punishments for the very worst offences. It is likely that murder charges and similarly heinous crimes would be tried in Canadian courts without the option of a sentencing circle. But having the choice of the sentencing circle for Aboriginal people is increasing as more communities educate themselves about the process. There is a movement to reclaim it and present it as an alternative to Canadian and provincial judicial systems. The rebirth of this tradition as an alternative to current procedures of justice could have repercussions that, in the future, fundamentally alter the power relations between Native people and the Canadian government."

 

 

"Whenever the white man treats the Indian as they treat each other, then we will have no more wars. We shall all be alike -- brothers of one father and one mother, with one sky above us and one country around us, and one government for all."

Chief Joseph, 1840-1904
Nimi-puu 

 

 

EXERCISING THE RIGHT OF SELF-GOVERNMENT AS REGARDS JUSTICE MATTERS

The Royal Commission on Aboriginal Peoples in Bridging The Cultural Divide, came to the following conclusions on self-government and criminal justice.

  • A renewed relationship between Native and non-Native peoples must recognize Native people’s inherent right of self-government, which includes the right to establish Native justice systems.

  • Native and federal jurisdiction over criminal law and procedure on Native territories is concurrent. In the event of a conflict arising between Native law and federal law passed under section 91(24) of the Constitution Act, 1867, Native law will be paramount except where it can be shown that the need for federal law is consistent with the Crown’s basic trust responsibilities to Native people.

The establishment of urban Native justice systems will be involved with the delivery and administration of justice.

 

 

BEWARE WOMEN!

"Any Indian woman who marries any person other than an Indian, or a non-treaty Indian, shall cease to be an Indian in every respect within the meaning of this Act, except that she shall be entitled to share equally with the members of the band to which she formerly belonged, in the annual or semi-annual distribution of their annuities, interest moneys and rents: Provided that such income may be commuted to her at any time at ten years purchase, with the approval of the Superintendent General."  (1920)
(Translation: Patriarchy, Gender Bias, Racism abound!)

NOTE:  The true meaning of these amendments were quite simply, "Get the Women, Get the Children, Reduce the Bloodline."  Many Native men were deliberately plied with alcohol by unscrupulous Indian Agents who sat with them in "good ole boy comradeship" and urged them to sign on the dotted line.

WOMEN HAVE THEIR OWN PAGE   

 

 

Poundmaker, Plains Cree Chief
1842-1886 - his dying words:

"It would be so much easier just to fold our hands and not make this fight..., to say, I, one man can do nothing. I grow afraid only when I see people thinking and acting like this. We all know the story about the man who sat beside the trail too long, and then it grew over and he could never find his way again. We can never forget what has happened, but we cannot go back nor can we just sit beside the trail".

 

 

WHERE WAS JUSTICE, WHERE WERE OUR RIGHTS?

1914 - The Great War, WW 1 starts. Only a scan twenty-six years after the Indian wars end, 17,000 Natives willingly served alongside their former enemies to see that justice was served for Canada. Upon return, Native veterans were denied government pensions (1919)


October 7, 1924 - Armed police burst into Ohsweken Council House and read a decree that dissolved the Six Nations’ of the Grand parliament. They broke open a chest and seized documents going back to the time of Joseph Brant, many germane to the sovereignty case. More police raided wampum keepers’ homes taking the sacred belts, the Haudenosaunee equivalents of a flag, mace and Magna Carta.


  • Helen Betty Osborne, In 1971, the nineteen-year old Cree student was abducted, raped and murdered in La Pas, Manitoba. Despite knowing the truth, townspeople refused to help. Four local white men were eventually implicated in her death:  Dwayne Archie Johnston, James Robert Paul Houghton, Lee Scott Colgan and Norman Bernard Manger. It was not until December 1987, sixteen years after her death, that any of them were convicted of the crime, and then only Johnston was convicted, as Houghton had been acquitted, Colgan had received immunity for testifying against Houghton and Johnston, and Manger was never charged. The Aboriginal Justice Implementation Commission conducted an investigation into concerns surrounding the length of time involved in resolving the case. The Commission concluded that the most significant factor prolonging the case was racism.

    A formal apology from the Manitoba government was issued by Gordon Mackintosh, Manitoba's Minister of Justice on July 14, 2000. The apology addressed the failure of the province's justice system in Osborne's case. A scholarship was created in Osborne's name, by the province, for Aboriginal women. However, to this day, there is a racial divide between Aboriginal and white people in La Pas and racism deeply divides the town. Recently, there has been a movement by the Aboriginal community to make strides in building healthier communities and this is having a positive impact on the town and surrounding community.


      LEONARD PELTIER
    (September, 1944 - present)

    An original member of the American Indian Movement (AIM). In 1977 Peltier was falsely arrested and convicted to two consecutive life terms for the murder of two FBI Agents during the 1975 siege at Wounded Knee on the Pine Ridge Reservation in South Dakota. To this day despite overwhelming evidence that he was not even present when the murders occurred he continues to languish in a penitentiary in Lewisberg, Pennsylvania. Many organizations including Amnesty International consider him a political prisoner.


    January 28  1991, Leo LaChance, a Cree trapper was shot in the back while leaving a store in Prince Albert, Saskatchewan. The storekeeper, a white supremacist claimed the shooting was an accident. He received a four year sentence.  The shooter was also an RCMP informant. Racism was not an issue during the trial or the sentencing. Needlesstosay, the public outrage at this obvious racist attack convened a commission of inquiry. It was the determined that the police had dismissed that it was racially motivated and did not pursue any evidence in that area. The Commission recommended that a Cree speaking police officer be on duty at all times, and that the police be given training on racism.


    September 17, 1999 the Supreme Court released its decision on  R. v. Marshall. Mi'kmaq Marshall had been convicted of fishing without a license and fishing during a closed season. Marshall argued that Section 35 of the Constitution Act protected his rights. The Court agreed and all hell broke loose. The Court noted that the Prosecution had not bothered to justify their regulation as required by law, but had merely stated that the treaty right did not exist. As a result thirty-four Maritime and Quebec  First Nations began fishing for lobster outside the federally ordered season.
     
    Non-aboriginal fishermen and fisheries responded with outrage and the Burnt Church, New Brunswick debacle was underway.  Shots were fired, the non-Aboriginal fishermen destroyed hundreds of traps, vandalized equipment and three fisheries. Back to the drawing boards. On November 17, 1999, the Supreme Court released a new ruling saying that the earlier ruling they had not meant to imply that there be no treaty regulations as regards fishing commercially. In other words, "no treaty right should operate to displace any non-aboriginal participant in any commercial fishery."
     
    Mi'Kmaq members of Burnt Church, continued to fish outside the season throughout 2000 causing further violence until the Department of Fisheries using their boats rammed Mi'Kmaq boats causing people to jump overboard in order to avoid drowning.
     
    Professor Peter Russell noted: "The unusual decision of the Court to issue a 'clarifying judgment'  emphasized that the court could unilaterally change the terms of a bilateral accord such as a treaty. undermined the Aboriginal peoples' confidence in the laws of Canada to be dealt with fairly. In bowing to the violence, the Department of Fisheries and non-aboriginal fishermen used illegal tactics to also undermine the rights of Aboriginal people. It is difficult to understand how such lawless and violent treatment can be used against another human being, unless one is able to dehumanize the recipients of the treatment. It is also difficult to understand how the ultimate arbiters of  Justice in Canadian law can endorse this form of dehumanization." AMEN

    2000 - Two Saskatoon police officers were suspended with pay for abandoning Native, Darrell Night many kilometers from home; he was left to make his way home in -30C weather. Two other Native men dumped in the same area by police were found frozen to death. Racism is deep-seated in the area with Native people routinely referred to as "Dirty Prairie Niggers" by police. This incident came to be known as the "Starlight Cruise".


    December 7, 2001 - Saskatoon Police force fired the "Starlight Cruise" police officers; a jail sentence of eight months was handed down after Mr. Justice Schiebel rejected their request for a Native Sentencing Circle in lieu of a jail sentence. The victims lawyer said, "Judge Schiebel has not allowed these two defendants and their lawyers to make a mockery out of First Nations traditions."


    December 11, 2001 - More than six years after he shot and killed Native protestor Dudley George (September 6, 1995), Acting Sergeant Kenneth Dean was dismissed from the Ontario Provincial Police for discreditable conduct. Police Adjudicator, Loyall Cann said that the decision on his conviction of criminal negligence causing death was the most serious conviction ever recorded against an OPP officer. His appeal was denied. He was killed on February 25, 2006 in a car accident.

 

 
 

HAUDENOSAUNEE Great Law of Peace
upon which the United States Declaration of Independence is based!

"Everything starts where our feet are placed-on Mother Earth.
The purpose of The Great Law of Peace is to help us remember
the natural laws of creation."
 
(Vincent Powless, Sr., Oneida Spiritual Advisor)
 

Some of the following is paraphrased from:
New World Roots of American Democracy, David Yarrow, 1987

The Peacemaker established the  Great Law of Peace (called Gatanashagowa) as the Constitution of the Haudenosaunee. The foundation of the law was that thinking and negotiation could replace violence and warfare as a means of settling disputes. The nations of the Haudenosaunee Confederacy (Mohawk, Oneida, Onandaga, Cayuga, Seneca) have held fast to that law since the time of the Peacemaker (1391). The Confederacy existed centuries before the United States Constitution was written which was based on the  Great Law of Peace rather than on Greek democracy, as is commonly believed and taught.

When the first Europeans arrived they were greeted with well organized communities that comprised a powerful alliance.  These tribes controlled a huge area that ranged from the Hudson-Mohawk and St. Lawrence valleys across to the Great Lakes. It was an immense and strategic position because it controlled vast trade routes and no doubt put them in a position to influence modern North American history.  The Haudenosaunee were powerful both militarily and economically, but their greatest gift to modern governments was the oldest, most highly evolved participatory democracy on earth. In other words, although the Haudenosaunee were military experts, their government was not founded on might and arms, but rather, on the art of peaceful reasoning.

Native People in general had a profound understanding of what it was to be a free people, of what it was to care and share about each other, about what it was to respect each person's opinions and participation in the daily life of the tribe. After all, that is how the tribes hummed for thousands of years. Effective decisionmaking and statesmanship were embedded in tribal law and understanding.

The United States Constitution is an almost mirror image of the Haudenosaunee Great law. The founding fathers (Benjamin Franklin, in particular) had to look no further than their Haudenausaunne neighbours for a superb example of pure democracy at work. The Great Law quite simply debunked the theory that European politics formed the basis of modern civilization. The following are a few of the main tenets of the Great Law:

  • Peace during negotiations must be kept at all costs. In other words, anger must not be shown.

  • The right of women to collaborate was a given. In fact, the Clan Mothers held powerful positions.

  • decisions must be morally right taking into consideration the needs of seven generations to come.

  • Peace was the natural order of things and the will of Creator.

  • Non-interference in another's opinions was the hallmark of a successful collaboration.

  • The Great Law was communicated to the Haudenosaunne through an historical figure known as "The Peacemaker'.  He emphasized always the power of reason to achieve a righteous position  of justice and health among all people guided by a spiritual mind.

  • Freedom of Speech of belief were givens.
  • Power: the power of the people must be maintained including equal sovereignty between women and men.

Conflicts between nations were also resolved through diplomacy and consensus. War - or the use of violence - was a last resort. Before the men could go to war, it was customary for the women to make the moccasins. If the women did not want war, they did not make moccasins. Even then, the women and children of the opponents were spared. 

Details of the Five-Tribe Confederacy:  

Seneca "Onondowahgah," meaning The People of the Great Hill, also referred to as the Large Dark Door. (Keeper of the Western Door)
Cayuga (Younger Brother) "Guyohkohnyoh," meaning The People of the Great Swamp. (Keeper of Southern Door)
Onondaga "Onundagaono," meaning The People of the Hills. (Keeper of the Sacred Fire)
Oneida (Younger Brother) "Onayotekaono," meaning The People of the Upright Stone. (Keeper of the Northern Door)
Mohawk "Kanienkahagen," meaning The People of the Flint. (Keeper of the Eastern Door)
Tuscarora
(Adopted Brothers - added later, around 1760), known as "Ska-Ruh-Reh" meaning Shirt-Wearing People.


   TREE OF PEACE 

"But during a dark age in our history 1000 years ago, humans no longer listened to the original instructions. Our Creator became sad, because there was so much crime, dishonesty, injustice and war. So Creator sent a Peacemaker with a message to be righteous and just to make a good future for our children seven generations to come. He called all the warring people together and told them as long as there was killing there would be no peace of mind. There must be a concerted effort by humans for peace to prevail. Through logic, reasoning and spiritual means, he inspired the warriors to bury their weapons and planted a top a sacred Tree of Peace."

The Peacemaker legend is central to Haudenosaunee history. It describes a people mired in violent bloody feuds who, guided by a spiritual teacher, were able to set aside war to adopt a Path of Peace. It is a monumental tale of good and evil, finding order out of chaos and the triumph of reason over unreasonable passion for power. Humans were able to rise above their suffering to establish a higher order of human relations. In other words, unity, balance and harmony are achievable even in the worst of times. Individual liberty can be preserved by applying democratic principles.

The Tree of Peace is the Haudenosaunee symbol of those democratic principles. It is a great white pine tree whose branches spread out to shelter all nations who have committed themselves to peace.

Beneath the tree the Five Nations buried their weapons of war, atop the tree was the Eagle-that-sees-far, and four long roots stretched out in the four great directions, called the 'white roots of peace. The Peacemaker declared: "If any man or nation shows a desire to obey the law of the Great Peace, they may trace the roots to their source, and be welcomed to take shelter beneath the tree." The eternal central sun, the source of all life lies beyond the tree.

Haudenosaunee people of the Great League of Peace were instructed to search for their roots under the Great Tree, which is the symbol of the Haudenosaunee Confederacy, the original five nations who chose to govern their people by peace.  Of Note: The Tree of Peace has its own constitution originally established in a wampum belt.


HAUDENOSAUNEE AND WAMPUM

On the right is a Five Nations territorial wampum belt. Square on far left is Mohawk: Keeper of the Eastern Door Second from Left: Oneida: Keeper of the Northern Door. Centre white heart represents the Onandaga: Keeper of the Fire. The white hearts also means that the five nations act as one unit in their loyalty to the Great Peace. To the right of the Heart, Cayuga: Keeper of the Southern Door and far right the Seneca: Keeper of the Western Door.

Overall the white beads symbolize that no evil or jealous thoughts shall enter into the minds of the leaders while in Council as they are governed by the teaching of the Great Peace. White is the symbol of peace, love, charity and equity and surrounds and guards the Five Nations (Six when the Tuscarora came later.)


Two row wampum belt. Also called Tékeni Teioháte, it symbolizes the relationship between Native people and white people. One purple row of beads represents the path of the Haudenausaunne's canoe which contains their customs and laws. The other row represents the path of the Whiteman's vessel, the sailing ship, which contains his customs and laws. The meaning of the parallel paths is that neither boat should out pace the other, and the paths should remain separate and parallel forever, that is, as long as the grass grows, the rivers flow, the sun shines, will each group understand their place, honour it and continue to renew their understandings and treaties.


EVERGROWING TREE BELT

The Two-row wampum belt was of particular significant to the Haudenosaunne

This belt represents the Ever Growing Tree of Life with its branches spread to the east, west. The top to the north, roots to the south. It is the tree of peace for any nation or individual outside of the Five Nations who wishes to also obey the great laws of peace. If you are of clean mind and heart, you can rest awhile beneath its branches and listen to the great law.

 

 

SELF-GOVERNMENT, SELF-DETERMINATION,
LAND CLAIMS, ENVIRONMENT

 


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