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The (Re)Introduction of Restorative Justice in Kahnawake: "Beyond Indigenization"[1]
Contents:The (Re)Introduction of Restorative Justice in Kahnawake: Beyond Indigenization’
While I am not an Onkwehonwe ('original being'), the injustices (in all of their manifestations) that continue to plague the Onkwehonwe of Turtle Island (Canada) and their descendants are of grave concern to me.[2]
To date, my concern has, with few exceptions, focussed on critiquing the impact of legislative amendments to the Criminal Code of Canada[3]
(Criminal Code) vis. a vis. sentencing and First Peoples and the judicial interpretations of those amendments.[4]
In this paper I venture down a new path and consider 'Skenn:en A'onsonton' (pronounced 'Sken: na A oon soon dun' and to be said quickly,[5]
translation from the Kanien'keha ('Mohawk') language meaning 'to become peaceful again'),[6]
a contemporary restorative justice process based on traditional Rotinohshonni (or Haudenosaunee, 'Iroquois' or 'Six Nations') principles of conflict resolution being re-introduced by the Kahnawa'kehró:non (people who live by the rapids also known as Kahnawake 'Mohawks') to the Community of Kahnawake, Kanien'keha ('Mohawk') (Nation) Territory as an alternative to the Canadian criminal justice system.[7]
My goal in writing this paper is to promote understanding of Skenn:en A'onsonton both inside and outside of Kahnawake and, through a consideration of the strengths of and challenges faced by this initiative, to speculate on the likelihood that this initiative will re-root itself in Kahnawake.[8]
This paper is written with the outmost respect for the Kahnawa'kehró:non, the Community of Kahnawake, the Kanien'kehaka ('people of the flint or 'Mohawk' people) the Rotinohshonni ('people of the Longhouse or 'Iroquois' people) and the Onkwehonwe (or 'original beings') and their descendants and is offered as a tool to facilitate empowerment[9]
in the hope that the Skenn:en A'onsonton initiative will empower the Kahnawa'kehró:non people and the Kahnawake community to find "the way to live most nicely together" again.[10]
Where possible I have incorporated Kanien'keha ('Mohawk') terminology throughout this article out of respect for the fact that "[n]ative languages embody indigenous peoples' identity and are the most important element in their culture. They must be revived and protected as both symbols and sources of nationhood."[11]
The use of the past tense to describe historic governance and conflict resolution processes amongst the Rotinohshonni is not intended to suggest the extinction of such processes/aspects of such processes in contemporary Kahnawake. Any inaccuracy in this paper, whether with respect to the substantive content or (mis)use/(mis)understanding of the Kanien'keha ('Mohawk') language is solely my responsibility "as the one who has woven this article together."[12]
I wish to thank my professor, kawzi-Mgizi (Ronald C. George) (also known as 'Spike'), Ojibway member of the Anishinabek Nation, Kettle and Stony Point First Nation[13]
(University of Ottawa) for encouraging me to explore this new path. Thanks also to Ron Skye (Kahnawake Justice Commission) for responding to my questions; Dale Dione (Karonhiahente, Kahnawake community member, Longhouse person, trained facilitator and co-ordinator of Skenn:en A'onsonton) and Coreen Harding of the National Institute for Conflict Resolution at the University of Waterloo for forwarding material to me; Professor Jane-Dickson Gilmore (Carleton University) for sharing her research materials with me on very short notice; my partner, Victoria Edwards (Métis), for being there, tracking down materials and reading earlier drafts of this paper; Professor Larry Chartrand (Métis) (University of Ottawa) for referring me to a number of sources, particularly Dr. Alfred's books; Jim Potts (Temiskaming First Nation and Inspector with the Ontario Provincial Police) for sharing his thoughts on a variety of issues and his re-telling of the Mukwa and Jay legend and to the Graduate Studies Office at the University of Ottawa for their flexibility and patience.
- By now (Spring 2002) it is trite to say that the Canadian criminal 'justice' system has failed/continues to fail First Peoples and that justice has been/continues to be denied to the Onkwehonwe and their descendants.[14]
The Royal Commission on Aboriginal Peoples attributed this failure to the very different world views of the Onkwehonwe and non-Onkwehonwe and their descendants on such basic elements as the substantive content of justice, how justice is achieved and sentencing that does not respond to the realities of the Onkwehonwe, their descendants or their communities.[15]
Denial of justice is evidenced by the fact that the criminal justice system, rather than "addressing the problems they [Aboriginal people] face in their nations, their communities, and their personal lives", was actually aggravating those problems." [16]
Ironically, the problems being aggravated were, and are, largely the result of federal government legislative and policy initiatives designed to 'civilize' and assimilate the Onkwehonwe.[17]
- The insidious effect of colonialism is responsible, in part, for the over-involvement and over-representation of the Onkwehonwe and their descendants in Canada's criminal justice system and in penal institutions. La Prairie, for example, in considering "why aboriginal people in Canada are so disproportionately involved in and vulnerable to the policies and practices of the criminal justice system" had occasion to consider the impact of colonization, particularly in relation to the creation of contemporary Aboriginal communities.[18]
La Prairie writes, for example, that "[c]ontemporary aboriginal community structures are the products of historical processes, wherein colonization and the creation of the reserve system came about as a result of cultural conflict and conflict over land ownership and possession."[19]
According to La Prairie, a "critical outcome" of such contemporary structures is marginalized "geographic, social and economic structures from which it is very difficult to escape."[20]
Factors related to these contemporary communities that combine to create vulnerable conditions for the Onkwehonwe and their descendants include "geographic isolation, small size, poor land, lack of education, employment and other resources, differential access to community options and opportunities, and alienation from mainstream society."[21]
- The over-representation of the Onkwehonwe in provincial and federal institutions is attributable in large part to systemic discrimination in the sentencing process[22]
- systemic discrimination that is a manifestation of the insidious effects of colonialism.
- Quigley, for example, writes that given "the unemployed, transients and the poorly educated are all better candidates for imprisonment[,]" where a society's social, political and economic aspects disproportionately places the Onkwehonwe and their descendants amongst that group, that society "literally sentences more of them to jail. This is systemic discrimination."[23]
- Both the need for, and the right of, the Onkwehonwe to establish separate justice systems and, in particular, separate criminal justice systems reflective and respective of their cultural distinctiveness, has been identified in numerous reports.[24]
While the benefits of separate justice systems for the Onkwehonwe are propounded, however, there is a paucity of information available on the format or function of a separate contemporary criminal justice process for the Onkwehonwe[25]
and discussion to date concerning the existence of such a contemporary process has, for the most part, been 'more theoretical than real'.[26]
This is not tantamount to saying that no progress has been made. Rather, it is to say that efforts to date have focused on making the existing non-Onkwehonwe system more 'inclusive' of the Onkwehonwe and their descendants.[27]
Examples of such initiatives include police recruitment initiatives of the Onkwehonwe, court-worker programs for First Peoples and specific training for First Peoples to become Justices of the Peace.[28]
- The current methodology of government appears to be to favour the indigenization of the non-Onkwehonwe justice system. While the "fragmentary programs" that are a product of such a methodology are designed to make the Canadian system "more responsive and appropriate to Native cultural values and Native needs", are not a substitute for a separate justice process.[29]
While separate justice systems for the Onkwehonwe and their descendants are not a panacea, the (re)creation of justice systems by and for the Onkwehonwe and their descendants that are reflective and respective of their lived realities is integral to self-government and to the ultimate survival of the Onkwehonwe and their descendants.
- In December 2000, however, the Kahnawake Justice Commission (re)-introduced 'Skenn:en A'onsonton', a contemporary restorative justice process based on traditional Rotinohshonni ('people of the Longhouse) principles of conflict resolution to the Kahnawake Community as an alternative process to the Canadian criminal justice system. In this paper I critically assess this new initiative with a view to speculating on the likelihood that it will re-root itself in the Kahnawake community.
- Part I of this paper offers an overview of the basis for political and social order within the Community of Kahnawake pre- and post-contact (Part I, subsections i and ii respectively) and outlines the Skenn:en A'onsonton initiative and where this initiative fits/may fit in contemporary Kahnawake (Part I, subsection iii). A consideration of the strengths of this contemporary initiative as well as the challenges to its success gleaned from Part I forms the basis of a critical evaluation of the initiative's prospects for success in Part II. I conclude Part II by noting that while there are significant challenges to the program being able to successfully re-rooting itself in Kahnawake, these challenges also provide opportunities for the community to 'rebuild its foundations'[30]
and, in so doing, increase the likelihood that this contemporary process will find the fertile ground it requires in which to survive. The requisite thinking, however, that needs to happen to enable this rebuilding to take place starts, and rests, with the Kahnawa'kehró:non (people who live by the rapids also known as Kahnawake 'Mohawks') and the Community of Kahnawake (Kanien'keha ('Mohawk') Nation).[31]
- I commence Part I of this paper with a brief overview of the community and its placement within the Kanien'keha Nation and the Rotinohshonni Confederacy. I then provide a detailed historic overview of governance and conflict resolution within the Confederacy from the perspective of the community, Nation and Confederacy pre- and post-contact. Given the traditional importance of the Clan system as the infrastructure for governance and conflict resolution within the Confederacy, an outline of the Clan system is provided in the pre-contact section prior to embarking on an overview of governance. Where possible, I have made specific reference to Kahnawake by way of illustration. The post-contact section is followed by an outline of the Skenn:en A'onsonton initiative. The discussion in Part I provides the requisite background information necessary to meaningfully evaluate the strengths of, and challenges posed by, the Skenn:en A'onsonton process in Part II with a view to speculating on likelihood that this initiative will successfully re-root itself in Kahnawake.
-
The Community of Kahnawake is located approximately 15 kilometres south of downtown Montréal on the south shore of the St. Lawrence River and consists of approximately 12,000 acres of land known as the "Kahnawake Indian Reserve" in Kahnawake and the "Doncaster Indian Reserve" situated near Ste-Agathe-des-Monts via Québec.[32]
The population of Kahnawake is approximately 8,585 people (4,069 men and 4,516 women). Of the 8,585 people living at Kahnawake, 6,957 live within Mohawk territory and 1,628 live outside the territory.[33]
Kahnawake is one of eight communities/settlements that comprise the Kanien'keha ('Mohawk') Nation.[34]
The Kanien'keha Nation, in turn, is one of the original Five Nations that comprise the Rotinohshonni ('Iroquois') Confederacy.[35]
(Please see Figure 'A' for an overview of the Confederacy and Figure 'B' for an overview of the Communities Comprising the Kanien'keha ('Mohawk') Nation.)
Figure A
Figure B
- The Rotinohshonni (or Haudenosaunee) Confederacy, often referred to as the 'oldest living democracy in the world', dates to August 31, 1142 when the Seneca Nation agreed to join the other four Nations in a political union for peace.[36]
The formation of the Confederacy was a pivotal point for the Rotinohshonni since up to that point extensive blood feuds between warring families, communities and Nations were common and the 'eye-for-an-eye' retaliatory approach to violations or perceived violations of a person, family or community had served to splinter communities.[37]
The "intertwined" nature of Rotinohshonni families frequently saw retaliation increase to the level of "[b]lood feuds of many years' duration".[38]
- The Rotinohshonni credit the Peacemaker (Skennenrahawi), who was sent by the Creator, with bringing peace to and amongst the Nations. The Peacekeeper's mission was to persuade the Rotinohshonni ('People of the Longhouse') to abandon their reliance on war as a method of dispute resolution, "adopt his teachings of reconciliation, reason, compromise, and consensus as disciplines leading to the development of [a] 'good mind,' a state of being from which peace would naturally follow"[39]
(teachings stemming from his message of 'peace (Skennen), power (Kashastensera) and righteousness' (Kariwiio, the 'Good Message'))[40]
and form a union - the Rotinohshonni Confederacy - for the sake of peace. The forming of the Confederacy is testimony to the Skennenrahawi's success.
- Skennenrahawi's success is attributable to a number of factors, key among which was his awareness that in order for peace to be realized amongst the warring Nations an intricate infrastructure would need to be woven that intricately connected the Nations but also respected their individual autonomy. Skennenrahawi, for example, is described as having envisioned the Rotinohshonni as "one united Longhouse in which each nation had its own hearth."[41]
With limited exceptions (i.e., war, land cession), each Nation (i.e., Kanien'keha ('Mohawk') Nation) had exclusive jurisdiction over its own territories.[42]
- Just as each nation within the Confederacy was considered autonomous in its own right and dealt with its own internal affairs, the autonomy and independence of local settlements within the Nation (i.e., Kahnawake) was also respected. In turn, within each settlement, there was autonomy for the clan structure.[43]
Indeed it was Skennenrahawi's realignment of the existing clan system that provided the infrastructure for peaceful governance and conflict resolution.
- While Clans were already established amongst the Five Nations at the time of the Peacemaker's arrival, the clans appear to have been used predominantly to delineate family lines to avoid intermarriage.[44]
The Peacemaker restructured the clan system (while retaining the rule against inter-marriage) placing within each of the settlements of their respective Nations thereby forming a more cohesive infrastructure amongst the Nations.[45]
- The re-structured clan system formed the basis of social order in Rotinohshonni society pre-contact. Skennenrahawi's instructions concerning the structure of the clan system are detailed in the Kaienerekowa (Great Law of Peace), the 'Constitution' of the Rotinohshonni , that "defines the powers of each nation and guarantees certain freedoms for the people."[46]
- There are nine clans amongst the Rotinohshonni however not all nine clans are represented within each of the Nations. Amongst the Kanien'keha (Mohawk) and Oneida Nations, for example, three of the nine clans (Bear (Rotiskerewake), Turtle (Rotiniahton) and Wolf (Ron'Thahonni))[47]
are represented in the various settlements that comprise those respective nations. Amongst the Onondaga, Cayuga and Seneca Nations, all nine clans (the three clans previously mentioned plus the Snipe, Heron, Hawk, Beaver, Deer and Elk clans)[48]
are represented in the various settlements comprising those Nations. (Please see Figure 'C' for an overview of the clans comprising the original Five Nations.) Since Rotinohshonni society is matrilineal and matriarchal family names and clans are passed through the women.[49]
Since a child (boy or girl) belongs to the mother's clan, the men and women belong to the mother's clan. All people were considered equal within the clan system and each individual within the Confederacy belonged to or was protected by one of the nine clans.
- The Clan system formed the infrastructure for governance and conflict resolution throughout the Confederacy. Each of the nine clans amongst the Five Nations comprising the Confederacy was represented by a specific number of 'Rotianer' (pronounced lo-di-ya-ne[50]
roughly translated as 'chiefs') as determined by the Skennenrahawi (Peacemaker). The number of Rotianer per Nation was as follows: Kanien'keha ('Mohawk'), 9; Oneida, 9; Onondaga, 14; Cayuga, 10 and Seneca, 8.[51]
All Rotianer had equal authority, sometimes described as "all of the Chiefs" being "of the same height[.]"[52]
(Please see Figure 'D' for an overview of the Rotianer/Nation composition of the Grand Council of the Confederacy.) The choice of Rotianer was important not only since the Rotianer would be a life representative of the people but also since it was through the voice of the Rotianer that community members had input into the resolution of disputes by the Territory.[53]
The selection process for a Rotianer has been described as akin to a "four-tiered leadership nomination review process".[54]
The first of the four-step process required the Clanmother, a woman selected by members of her clan, to select a Rotianer from amongst the men of that clan.[55]
- In the case of the Kanien'keha ('Mohawk') Nation there are three clans with three Clanmothers per clan who select a total of nine Rotianer. The second of the four-step process required the clan to accept the Clanmother's choice of Rotianer. Endorsement of the Rotianer by the Nation's Council of Chiefs and the leaders of the Confederacy comprised steps three and four respectively.[56]
- The choice of Clanmother and Rotianer, indeed decisions made at all levels amongst the Rotinohshonni (people of the Longhouse), were made on a consensus basis. Consensus decision-making provided an opportunity for issues to be discussed from all angles with the result that a diverse range of viewpoints could be shared.[57]
Dione, for example, writes that
"[t]he final decision will be fully satisfactory to some,
satisfactory to some others and relatively satisfactory
to the rest, but will reflect elements from every group.
All must have a complete understanding of the final
decision."[58]
Figure C
Illustration: Victoria Edwards
Figure D
Illustration: Victoria Edwards
- The clan system as redesigned by the Skennenrahawi (Peacekeeper) provided the infrastructure for consensus-based governance and peaceful decision-making as outlined in the Kaienerekowa. Skennenrahawi's instructions concerning governance envisioned Five Nations and not the Six Nations that comprise the Confederacy today. Each of the Five Nations was considered autonomous in its own right and dealt with its own internal affairs[59]
in a consensus-based manner through clan meetings.[60]
Respect for the autonomy of individual Nations and settlements recognized the need for Nations to retain their sovereignty even though members of a collective.[61]
The Rotianer represented the interests of their respective clans[62]
however the Clanmothers served as a form of watchdog on the behaviour of the Rotianer in all matters, public and private, in order to ensure that decisions were made in accordance with the Kaienerekowa (Great Law of Peace) and that the Rotianer was acting responsibly.[63]
- While governance matters would be resolved at the community level where possible, the Peacemaker also provided that the Five Nations would each have their own Nation Council comprised of Rotianer from the clans in that settlement to address matters of importance to that Nation.[64]
In the case of the Kanien'keha ('Mohawk') Nation, there was a Kanien'keha ('Mohawk') National Council comprised of nine Rotianer from the three clans. The emphasis on consensus-based decision-making resulted in the National Chiefs being depicted as 'peace' leaders in that rather than simply voting their position on a given issue they were required to arrive at a peaceful reconciliation/consensus on matters that affected the settlements within their respective Nations.[65]
When consensus was reached on the matter at hand following clan meetings, the Clanmother would inform the Rotianer of the clan's decision. The Rotianer would then take the people's decision reached via consensus to the National Council of Chiefs.[66]
While the consensus-based approach could prove time-intensive, it also endeavoured to ensure that no one clan could dominate governance of the community, Nation or Confederacy.
- At the National Council level, as at all levels, decision-making was based on consensus. The decision-making process to be followed by the Kanien'keha ('Mohawk') National Council is detailed in the 11th Wampum of the Kaienerekowa (Great Law Of Peace). This process envisioned the Rotianer from the three clans comprising the Kanien'keha ('Mohawk') Nation deliberating over an open fire pit in the Longhouse.[67]
Not all matters that reached the National Council, however, would necessarily be heard by the Council and prior to deliberation on any matter a decision was required as to whether the proposed topic for debate was of sufficient importance to warrant the attention of the Council.[68]
Assuming the matter before the National Council was of sufficient importance, the matter was first presented to the Turtle Clan (Rotiniahton) for deliberation and a consensus-based decision following which the matter was then handed to the Wolf Clan (Ron'Thahonni). The Ron'Thahonni would have the benefit of having heard the Rotiniahton debate the matter before the Council. Following deliberation, if the Ron'Thahonni (Wolf Clan) was in agreement with the decision of the Rotiniahton (Turtle Clan), the matter was returned to the latter clan who then handed the issue to the Bear Clan (Rotiskerewake) for deliberation. The Rotiskerewake would also have had the benefit of hearing earlier debate on the matter by the other two clans.. Assuming the Rotianer of the Rotiskerewake (Bear Clan) were in agreement with the decision, the solution was sanctioned by the Rotiskerewake.[69]
Given the consensus-based approach to decision-making, there was no provision for minority opinion and thus no majority rule.[70]
The Clanmothers would observe proceedings to make sure that what took place at the National Council level was in accordance with the Kaienerekowa (Great Law).
- Rotianer, in addition to serving as representatives of their respective clans in the community and at the National Council, also represented their respective Nations at the Grand Council of the Haudenosaunee Confederacy where they totaled 50 in number.[71]
The Grand Council made decisions affecting the Confederacy at large or individual nations within the Confederacy where a specific Nation or Nations placed the Confederacy in peril by acting contrary to the welfare of the collective. The Grand Council was tasked with "maintain[ing] peace, protect[ing] the territory and provid[ing] for the long-term welfare of the people."[72]
While the Confederacy was empowered to intervene, however, its powers of intervention were qualified by the need to avoid violence.[73]
- Deliberation at the Grand Council level was similar to that at the National Council level.[74]
The Onondaga Rotianer, seated at the east end of the Longhouse, served as 'Firekeepers' and determined whether a subject was suitable for debate by the Grand Council.[75]
Rotianer from the Kanien'keha ('Mohawk') and Seneca Nations (also referred to as the 'elder brothers') sat on the north side while Rotianer from the Oneida and Cayuga Nations (the 'younger brothers') sat on the south side. The west side of the Longhouse accommodated members of the public wishing to observe the proceedings. The Clanmothers would observe proceedings to make sure that what took place at the Grand Council was in accordance with the Kaienerekowa (Great Law). Once a matter was approved for debate, the elder brothers debated the matter until consensus was reached, following which the matter was passed over the fire to the younger brothers for debate. The younger brothers's would benefit from having observed the debate amongst the elder brothers[76]
and if the younger brothers agreed with the decision of their elder brothers, the matter would be returned to the elder brothers who would then formally announce the consensus-based decision of the four Nations to the Firekeepers.[77]
The Firekeepers then deliberated on the matter and, as a general rule, and assuming the decision handed to the Firekeepers did not conflict with the Kaienerekowa,[78]
would reaffirm the decision and then announce the law to the people, the decision then becoming a law of the Grand Council.[79]
- While efforts were made to avoid conflict, conflict among the Rotinohshonni (whether of the 'civil' or 'criminal' type) did arise - albeit infrequently.[80]
The reconfigured clan system, besides serving as the infrastructure for peaceful decision-making at the governance level also provided the infrastructure for conflict resolution. Jurisdiction for addressing all forms of wrongdoing, whether committed by Confederacy members or other the Onkwehonwe within the jurisdiction or protection of the Confederacy, rested with the Confederacy.[81]
The actual body responsible for overseeing the resolution of the conflict depended upon where the wrongdoer and victim fit within the clan system. The nature of the wrongdoing complained of also factored into the determination of who would oversee the resolution of the conflict.
- Amongst the Kanien'keha ('Mohawk') Nation, and presumably amongst other Nations within the Confederacy, the clan itself was the sole arbitrator of disputes involving members of the same clan; thus, by definition, other clans were prohibited from intervening in such disputes.[82]
Public reputation was of importance to a clan and activity that might discredit the clan was not sanctioned.[83]
Since the clan assumed responsibility for correcting anti-social behaviour, the reoccurrence of wrongdoing was problematic and resulted in the clan's loss of jurisdiction over the wrongdoer.[84]
Where conflict occurred between members of different clans or Nations the approach followed to resolve the dispute was different. Deom writes, for example, that
"[a]ll clans took an interest in the matter, sheltering
the accused and his family from the vengeance of the
victim's family, and in settling the matter expeditiously
with the victim's family to heal the breach of social order.
The whole community contributed to the injured person's
family as a token replacement for what had been lost."[85]
(Please refer to Table 1 for an overview of the dispute resolution process involving members of the Kanien'keha Nation.)
- Depending upon the severity of the dispute, however, a matter might be turned over to the to the National Council or the Grand Council.[86]
According to George-Kanentiio, amongst the Rotinohshonni (people of the Longhouse), specific types of wrongdoing were within the purview of a specific body. In the sphere of domestic relations, for example, the responsibility for arbitrating family disputes rested with the women "with the eldest female in a given family or clan having the power to adjudicate violations of the ancient laws."[87]
Where the wrongdoing involved death, the victim's family and clan leaders determined the manner of death of their clan member. Where the clan leaders were of the opinion that a violent death had occurred, the decision with respect to punishment of the wrongdoer was within the purview of the offended family.[88]
Dispute
Resolution Process - Kanien’keha Nation
*
|
Disputants
|
Specifics
|
Resolved
By
|
|
individuals
|
intra-clan (same clan), same
settlement/territory, same Nation
|
Clan
|
|
individuals
|
inter-clan (different clans), same
settlement/territory, same Nation
|
Community council
|
|
inter-clan (different clans), different
settlements/territories, same Nation
|
National Council
|
|
Nations
|
other Nations within Confederacy
|
Grand Council (Confederacy)
|
|
other Nations outside Confederacy
|
Grand Council (Confederacy)
|
* subject to the nature of
the conflict
- Since wrongdoing would upset the peace and harmony within the community and behaviour that jeopardized the peace and harmony of the community needed to be addressed "quickly and firmly so as to discourage any further abuse to our society[,]"[90]
all conflict was approached with a view to restoring harmony to the clans, family or community in a timely fashion regardless of the nature of the dispute, the disputants or the body responsible for the resolution of the conflict.
- Regardless of the disputants or the nature of the conflict, however, the conflict resolution process was based on four principles that comprise(d) the Rotinohshonni concept of 'justice': reason, persuasion, satisfaction and compensation.[91]
These four principles, as noted in Part I(i), stemmed from the Peacemaker's message of Skennen, Kashastensera and Kariwiio (peace, power and righteousness). The concept of peace, power and righteousness is also sometimes referred to as 'righteousness, health and power'.[92]
The concept of 'peace' or 'health' is based on the understanding of what comprises a strong individual: "soundness of mind, body and spirit."[93]
A strong individual will have a strong mind and a strong mind "uses its rational power to promote well-being between peoples [and] between nations."[94]
- The concept of power is tied very closely to the Great Laws of Peace. The understanding with respect to this principle is that "[p]ower comes from the united actions of the people operating under one law, with one mind, one heart, and one body."[95]
Under this concept of power the exercise of the minimal amount of power by people and nations necessary "to maintain the peace and well-being of the members of the Confederacy".[96]
- The principal of righteousness is closely related to the concept of fairness, justice and rational thought. The need for everyone - - "the people, clans, Chiefs, Clan Mothers and the entire nation" to treat each other fairly was considered essential to the maintenance of stable communities since this would result in the maintenance of political and social justice and reduce the likelihood that violence would interfere with community stability.[97]
- Integral to the concept of fairness was that each individual requires a strong notion of justice, enjoy the equal protection of the Great Law of Peace and treat people equally.[98]
- Finally, the concept of righteousness contained the notion of rational thought. The use of rational thought is integral to the understanding that individuals "must be willing to use the power of reasonsable thinking to overcome problems and arrive at a mutually beneficial resolution" and "to shape their own personal conduct so as not to foster resentment or hatred[.]"[99]
- The principles of power/health, power and righteousness were thought to result in peace amongst the Nations of the Haudenosaunee Confederacy as well as unite individuals. The four principles that comprise(d) the Rotinohshonni concept of 'justice' - reason, persuasion, satisfaction and compensation - stem from one or a combination of the three overarching principles. (See Figure 'E')
Figure E
Principles Comprising the Great Law of Peace and 'Justice'
Illustration: Victoria Edwards
- At the heart of the principle of reason was the belief that to resolve any matter through peaceful negotiation both parties to the conflict had to be capable of thinking rationally and of wanting to return to a peaceful state.[100]
Integral to this principal was the understanding that "human beings should not abuse one another."[101]
The principle of reason is an excellent illustration of the understanding that peace/health results when a an individual with a sound mind, body and spirit uses its reasoning capacity to promote well-being with others. The notion of not abusing one another reflects the strong sense of justice imbued in the overarching principle of righteousness.
- The principle of persuasion provided that in order to reach a peaceful resolution the parties to the conflict had to be thinking clearly. Since emotions such as fear, hatred and revenge would clearly cloud this path the disputants had to be willing to set aside these emotions to move toward the resolution of the conflict.[102]
The principle of persuasion illustrates the influence of the overarching principle of power/health in relation to a strong individual using his or her rational thought to promote well-being. The willingness to set aside emotions is illustrative of the influence of the overarching principle of justice and the importance placed on the use of rational thought with a view to guiding one's own conduct in a way that would not generate resentment or hatred. Since persuasion results in the unison of minds on a given issue, the concept of power that results from the united actions of people is also implicit in the principle of persuasion.
- The principle of satisfaction described the community's response to knowing that "some measure of return to normality could be expected" - a knowledge attributable to the "rigid rules of protocol in place for the satisfaction of the injured parties."[103]
The community's response to the return of normalcy reflects the broader concept of peace/health in that rational thought is being used to promote well-being - between individuals and nations. The concept of satisfaction also is informed by the concept of righteousness to the extent that rational thought has been employed to resolve a conflict and reach a solution satisfactory to the parties. The return to normalcy would also seek to restore a stable community, minimizing violence and emphasizing notions of political and social justice. The anticipated return to a sense of normalcy also suggests an implicit reference to the overarching principle of power. As noted earlier, power is the result of a people's united actions under one law, with one mind, heart and body. Anticipation of a return to normalcy suggests a community moving in one direction, and moving towards operating with one mind.
- The principle of compensation envisioned the costs (not necessarily monetary) of redressing the harm caused. This principle is informed by the three overarching principles. A healthy individual would use their rational power towards the restoration of well-being and the concept of compensation is readily seen to work towards the restoration of well-being. The principle of compensation also reflects the exercise of rational thought to resolve problems and arrive at a satisfactory solution - concepts integral to the overarching principle of righteousness. In describing the principle of compensation in relation to the Kanien'keha Nation, Deom refers to the "financial and psychological burden on the community" resulting from the community's extensive involvement in addressing the wrongdoing.[104]
Given the ripple effect of a wrongdoer's actions, it would be difficult for a wrongdoer to avoid seeing the impact of their wrongdoing and this ripple effect was thought to deter future behaviour.[105]
The ripple effect of a wrongdoer's actions is a demonstration of the use of power that may serve to maintain community peace and well-being.
- The application of these four principles within the clan infrastructure provided for the peaceful resolution of conflict. Where possible the resolution of disputes reflected as much input as possible from the wrongdoer and the victim however the wrongdoer was responsible for using their capacity to reason to repair the harm caused by the wrongdoing. The resolution of the matter hinged upon the exchange of "[d]ue compensation and condolence, and a promise of agreement".[106]
Where the wrongdoer's proposal was accepted by the victim these three items "would have been exchanged at this time and the matter concluded."[107]
- Where wrongdoing occurred within the Kanien'keha Nation, a wronged party would approach their clan leader who could be the Clanmother, Rotianer or a respected elder and describe the wrongdoing and the clan leader was required to listen to the complainant.[108]
The clan leader then investigated the facts provided to him or her and determined the validity of the complaint and the seriousness of the conflict.[109]
Following this investigation, the wrongdoer (in the case of an intra-clan conflict) or the wrongdoer's Clanleader (in the case of inter-clan conflict) was contacted and the wrongdoer was interviewed.[110]
A meeting would be convened between the parties and their clan members. In the case of inter-clan conflict, members of both clans would attend.[111]
- In the case of an intra-clan conflict the matter would usually be resolved at this level. Where the victim was not satisfied with the wrongdoer's proposed solution, however, the dispute could then go to the Community or National Council level.[112]
A hearing at a higher level, however, was more formal (consisting of a forum moderated by the War Chief[113]
and more time-intensive given the consensus-based decision-making approach involving a larger number of bodies than at the clan level. In view of the importance attached to the timely resolution of conflict and the "somb[r]e procedure and careful deliberation of issues and resolutions" required at the Community and National Council, where possible, "smaller disputes" would be addressed either within or between clans.[114]
- Wrongdoing to be addressed before a Community or National Council within the Kanien'keha Nation commenced in a similar fashion to that outlined above concerning inter-clan conflict and an effort was made to resolve the conflict between the clans.[115]
Where this effort was unsuccessful, however, the matter then went to the National Council and the process started anew. At the National Council level, another preliminary investigation was conducted, the testimony of any witnesses was entertained, the wrongdoer's clan leaders were contacted and a meeting was arranged between the leaders of the two clans to ascertain whether a resolution to the conflict could be reached.[116]
- In the event there was still no resolution to the conflict, a hearing was held before the National Council where both the wrongdoer and the victim were provided with an opportunity to present their respective versions of the wrongdoing complained of along with any witnesses to the Chiefs in Council. After the presentations were concluded, the Rotianer deliberated within their clans as per the procedure set out above concerning governance at the National Council level on the following three matters and in the following order: the facts related to the innocence or guilt of the wrongdoer, the seriousness of the wrongdoing complained of and the degree of culpability of the wrongdoer.[117]
- Where the facts were determined to be inconclusive deliberations would necessarily need to be discontinued pending receipt of further evidence.[118]
Providing consensus was reached on all points, a resolution, based on consensus, would then be "brought forward and agreed upon" by the National Council of Chiefs.[119]
The victim and wrongdoer then appeared before the Council to learn of the decision and were requested to provide the Council with feedback related to the fairness of the resolution.[120]
The ultimate penalty would be agreed to by the accused and the Clan Chiefs.[121]
- While the four traditional principles discussed above applied in all cases of wrongdoing, the principles of satisfaction and compensation were of particular significance to the successful resolution of conflict arising from criminal-type wrongdoing within the Kanien'keha Nation.[122]
Amongst the Rotinohshonni a number of options related to compensation were available in the case of a violent death (or other serious offence). Compensation in the case of a violent death or other serious offence would often be 'permanent' in nature and entail compensating the victim's family in a way that was meaningful for the family.[123]
Where the deceased person was the principal source of support for the family, for example, the wrongdoer could take on this role.[124]
- Adoption of the wrongdoer by the victim's clan was a further option in the case of a violent death or serious offence and an offender could "be bound over to the clan to serve the needs of that clan for as long as they deemed proper."[125]
It was then up to the clan to decide whether or not to adopt the offender (or, more accurately, whether or not to replace the deceased victim with the wrongdoer).[126]
This option resulted in the offender losing his or her identity (i.e. name, clan affiliation, national and work status).[127]
Banishment of the offender following a violent death was another option and a wrongdoer would be physically scarred prior to banishment from the community to ensure others knew to avoid the offender.[128]
-
According to Taiaiake Alfred, (Kanien'keha Nation Territory)
"[a]ttempts to understand the community at any
time during its history, especially in the contemporary
era, must begin with a realization that the principles
established in Mohawk society before contact with
Europeans retain much of their saliency and power."[129]
- Given that contemporary Kahnawake, is "a unique synthesis of tradition and modernity[,]"[130]
the foregoing discussion concerning governance and conflict resolution processes pre-contact will provide a solid basis from which to consider the nature of these processes post-contact.
- In Kahnawake today there are at least two streams of governance. One stream is the traditional Rotinohshonni-style governance process outlined above (Part I(i)). Writing in 1995, Alfred described the existence of three such institutions "modelled on the traditional Iroquois model".[131]
The existence of three such structures is owing in large part to disagreement concerning the interpretation of the Kaienerekowa (Great Law of Peace) and the Skennenrahawi's (Peacemaker's) instructions concerning the Kaienerekowa.[132]
- The second stream of governance with Kahnawake territory is the Mohawk Council of Kahnawake.[133]
The Mohawk Council of Kahnawake was created in 1894 and is the 'band council'-style of governance that traces its roots to the Indian Act.[134]
This system of governance was imposed upon the Onkwehonwe (original beings) by the federal government with the goal of 'civilizing' and later assimilating the Onkwehonwe.[135]
The Mohawk Council of Kahnawake consists of a grand chief and eleven chiefs elected every two years.[136]
- The imposed model of governance differs from the traditional governance process in fundamental ways. Critical distinctions between the two models include (i) the band council system of governance is based on an elected format as opposed to the life nominations of Rotianer selected by Clanmothers from amongst their clan members via consensus; (ii) a distinction in level between the Grand Chief and the other chiefs under the band council system while the Rotianer were all at the same level; (iii) decision-making based on majority rule under the band council model versus consensus-based decision-making under the clan system infrastructure and (iv) the inverted structure of governance presented by the band council-style government when compared with the traditional governance process.[137]
One Kanien'keha Trail Longhouse person described the difference in governance structure as follows:
"[t]he structure of government that we operate is
completely opposite to that of Canada in that we
view it as an upside-down triangle. Our people are
first and those that are chosen to represent them
are at the bottom and become the workers for the
people. It is not a top-down thing. It is in this sense
that it comes from the people and we are the
spokespeople."[138]
- The band council system of governance imposed upon first peoples has been rejected by some Kahnawa'kehró:non (people of the flint or Kahnawake 'Mohawks') as it is viewed as "an administrative organ of the Canadian government and a creature of the Indian Act."[139]
The fact that the band council-style government structure is the only structure recognized by the federal government in its dealings with First Peoples had the intended effect of community members turning to the band council system for their daily needs resulting in the "gradual and progressive disempowerment of [First Peoples'] government"[140]
and the ripple effect of lessening the utility of the clan system infrastructure. Despite the existence of different Longhouses, and the fact that the Mohawk Council of Kahnawake "is not accepted as the legitimate governing institution by a significant number of Mohawks", the Mohawk Council of Kahnawake "claims the collective will of the people of Kahnawake as its source of authority and legitimacy."[141]
The Council's ability to do so is attributed to its rejecting, "on principle ... the legal status of the Indian Act as a sponsoring institution."[142] As a result of this stance, "the majority of Kahnawake Mohawks consider the mck to be the legitimate governing authority in the community."[143]
- As with the two streams of governance in operation in post-contact Kahnawake, there are two streams which purport to address wrongdoing. The traditional Rotinohshonni Longhouse system based on the four principles discussed in Part I(ii) has existed from "time immemorial".[144]
Despite the existence of the traditional Rotinohshonni process for conflict resolution in contemporary Kahnawake, however, Canadian governments understand there to be only one 'legitimate' process for addressing 'criminal'-type wrongdoing, the Canadian criminal justice system, and has imposed this system on the Onkwehonwe across Canada.[145]
The initial source of the imposition was statutory and common law offences however the statutory bases for such offences were repealed with the coming into force of the Criminal Code of Canada in 1892.[146]
- The over-representation of Onkwehonwe in Canadian penal institutions demonstrates only too well the 'legitimacy' of the Canadian criminal justice system for the Onkwehonwe.[147]
The fact that the criminal justice system has failed the Onkwehonwe and that justice has been denied to the Onkwehonwe by the justice system should, by now, be common knowledge.[148]
A succinct reminder of the reasons for this failure and denial of justice is provided by Dale Dione, a Longhouse person and member of the Kahnawake Community:
"[t]he people of Kahnawake have a long history of
dissatisfaction with today's adversarial system of
justice. Within that system, traditional values of
restoring peace and harmony are neglected in favor
of a system where punishment is the exclusive goal,
primarily in the form of imprisonment. Victim
satisfaction is not an issue in today's justice system,
as the victim is generally unaware of what goes on
behind the scenes. Within today's justice system, all
offenses are considered acts against the state, where
the victim's only role is to report the crime."[149]
- The federal and provincial governments' passion for one 'legitimate' justice system for addressing criminal wrongdoing is, for the most part, not shared by Onkwehonwe. Within the Community of Kahnawake, for example, Longhouse followers embrace their traditional conflict resolution process and reject outright the Canadian judicial system. A visible example of such rejection occurred in Kahnawake in 1988 when three youths involved in wrongdoing in that community sought to have their wrongdoing addressed by the traditional system and specifically requested that occur without the benefit of interference from the Canadian criminal justice system.[150]
The Attorney General of the province of Québec rejected the Longhouse process and the matter brought to the fore the autonomy of the Kanien'keha ('Mohawk') Nation, the application of the Criminal Code of Canada to the Kahnawake community and the survival and contemporary recognition of Kanien'keha law and values.[151]
- Briefly stated, the Longhouse reached its decision on 25 February 1988 and released its decision on 26 February 1988. The day the decision was released, a Justice of the Peace in Longueuil, Québec issued arrest warrants at the request of the Kahnawake Peacekeepers (the community peacekeeping force in Kahnawake) for two of the three youths involved in wrongdoing on 17 February 1988: Sahkoianahawi (Jay) Diabo of the Snipe Clan and Onakarakete (Dean) Horne of the Bear Clan.[152]
- On 18 March 1988 the Peacekeepers sought and obtained a further summons for a third youth, Karoniarahkwen (Ryan) Deer - Bear Clan, stemming from the 17 February 1988 wrongdoing.[153]
Pursuant to the latter summons, the youth was required to appear in court on 19 April 1988 however this date was postponed until 29 September 1988.[154]
Shortly before September 29th, the Attorney General of Québec, Mr. Gilles Rémillard, denied the request for a discretionary stay of proceedings, an option which counsel for the Longhouse had offered as a means by which both "the Mohawk Nation and the Canadian justice system" could "save face" while not necessarily establishing a precedent.[155]
Dione attributes this denial to the province's fear that such agreement might be interpreted as Québec's recognition of the sovereignty of the Kanien'keha in judicial matters.[156]
The youth chose not to appear in court on 29 September 1988 and a bench warrant was issued for his arrest.[157]
At the end of the day, all three young men were subject to arrest as a result of the events of 17 February 1988.[158]
- Despite the existence of a traditional conflict resolution process in contemporary Kahnawake, however, there are those Kahnawa'kehró:non (people who live by the rapids also known as Kahnawake 'Mohawks') who, while not necessarily satisfied with the Canadian justice system, are 'committed' to that system.[159]
This commitment stems, in part, from federal government initiatives designed to attack the governance structures of the Onkwehonwe (i.e., the imposition of the band council system) resulting in diminished need for reliance upon the clan system as the infrastructure for governance and conflict resolution amongst the people and colonialist schemes that either directly or indirectly disrupted traditional methods by which conflict was addressed amongst the Onkwehonwe.[160]
- Frustrated by a system that did not come remotely close to approximating
'justice' as understood by the Rotinoshonni and needing to assert some level of control over the administration of justice,[161]
communities such as Kahnawake opted to use section 107 of the Indian Act to nominate community members as Justices of the Peace. In 1974, Justice Sharron was the first Rotinoshonni appointed to a section 107 court in Kahnawake.[162]
A considerable portion of wrongdoer's appearing before this court are non-Onkwehonwe appearing in relation to highway traffic violations. The section 107 court in Kahnawake has been self-sustaining since its inception in 1974 owing, for the most part, to revenue generated from fines and court costs.[163]
- Justices of the Peace appointed under section 107 of the Indian Act, in addition to having jurisdiction over offences under the Indian Act, also have jurisdiction vis.
"any offence under the Criminal Code relating to
cruelty to animals, common assault, breaking and
entering and vagrancy, where the offence is
committed by an Indian or relates to the person or
property of an Indian."[164]
- The jurisdiction of this court over criminal offences is wider than it appears since it is not tied to specific offences under the Criminal Code but Criminal Code offences related to those four areas. The court's jurisdiction over criminal-type offences pursuant to subsection 107(b) of the Indian Act in Kahnawake has been described as including
"many criminal offences punishable on summary
conviction. The court has also dealt with hybrid
offences under the Criminal Code, hearing them
as summary conviction cases. Owing to the
wording of some provisions of section 107, the
court also has the jurisdiction to hear break and
enter cases - cases classed as indictable in the
Criminal Code."[165]
- While the court's jurisdiction extends to vagrancy-type offences, this 'offence' stems from an earlier time period and is not currently a Criminal Code offence.[166]
The wording of the provision relating to jurisdiction over Criminal Code offences extends the geographical jurisdiction of the section 107 court to outside the territory where the court is located.[167]
This extended jurisdiction means that it is possible for offences falling within the section 107 court's jurisdiction committed outside the territory of the court (i.e., common assault) to be "transferred from provincial courts or initiated in the section 107 court."[168]
- While the importance of section 107 courts to communities such as Kahnawake should not be underestimated, these courts have come under fire for a number of reasons. First, the section 107 Indian Act court serves as "vestige of the ignominious past of federal colonization and domination of reserve life."[169]
For this reason, it is somewhat ironic that the tool of the Indian agent was reclaimed by the as a means by which to assert some leverage over the administration of justice,[170]
an irony that is heightened when one considers that the Onkwehonwe were, for the most part, excluded from the position of Justice of the Peace.[171]
This irony has not been lost on the Onkwehonwe.[172]
Further, while the section 107 court was initially seen as a means by which Onkwehonwe could reclaim some manner of control over the administration of justice, the section 107 court is still premised upon the "application of existing federal and provincial laws rather than incorporating the traditional and contemporary laws of Aboriginal communities"[173]
and thus serves to contain the involvement of Onkwehonwe "to a subordinate position within the general system in a way that is not in keeping with the professed desires of the Aboriginal peoples of Canada."[174]
The capacity for such courts to incorporate traditional content into the court process has been questioned given the "limited role and jurisdiction of such courts".[175]
This court could also be seen as an example of a "fragmentary program"[176]
associated with efforts to make the western criminal justice system "more responsive and appropriate to Native cultural values and Native needs."[177]
As at 1993, it seemed clear that the Kahnawake community was not satisfied with the Kahnawake Court. Grand Chief Norton, for example, stated that: "[e]ven our system, people are not satisfied with our court in Kahnawake. We know that. There is no question about that. They want something more. They want something better and they deserve it."[178]
- The discussion concerning pre- and post-contact governance and conflict resolution processes amongst the Rotinoshonni is illustrative of the resilience of the Rotinoshonni and their systems of social order in the face of "the crushing weight of imposed foreign institutions"[,][179]
the adaptability of the people and their processes as well as the challenges accompanying such adaptation. A contemporary example of such adaptation is found in the Skenn:en A'onsonton initiative, a contemporary alternative dispute resolution process based on traditional Rotinohshonni conflict resolution processes.
- In response to Kahnawake's "long history of dissatisfaction" with the Canadian justice system, community consultations in 1999 explored "alternative justice methods" of interest to the Kahnawake community. It was within the context of these discussions that the concept of restorative justice was raised as a plausible alternative justice process to the Canadian system[180]
and hence the birth of the Skenn:en A'onsonton program. In December 2000, the Mohawk Council of Kahnawake's Justice Committee, a committee connected to the Mohawk Council of Kahnawake (the band council-style government system), in conjunction with other community members,[181]
formally re-introduced this process to the community. The process is presented as belonging to and being under "the jurisdiction of the Mohawks of Kahnawake and not the jurisdiction of Quebec or Canada"[182]
The process is aimed at all members of the Kahnawake community, including youth, that have been involved in a non-violent incident in Kahnawake either as a victim or wrongdoer.[183] While the initiative is targeted at the community in general, Ron Skye of the Kahnawake Justice Commission states that "[w]e are non discriminatory when it comes to using our system of justice. As long as the individuals agree to voluntarily participate we are accommodating."[184]
- On the surface, the Skenn:en A'onsonton program resembles a typical restorative justice process in that it is victim-focused, requires the victim's and offender's consent to participate,[185]
requires a wrongdoer to be accountable and take responsibility for their actions in recognition of the wrongdoing that was committed and requires that arrangements be made in order address the harm done. The difference between the Skenn:en A'onsonton process and other restorative justice initiatives, however, stems from the underlying approach to conflict or principles of conflict resolution upon which such processes are constructed. The Skenn:en A'onsonton process is unique in that it is based on the principles inherent in "the kind of justice our ancestors practiced and passed down to us through our ceremonies and Kainekerasera"[186]
reason, persuasion, satisfaction and compensation.[187]
- As a result of its traditional roots, the Skenn:en A'onsonton initiative has been referred to by the co-ordinator as being re-introduced to the Kahnawake Community.[188]
Dione notes that while "we did not have a name for it, it was part of the way we did things, how we dealt with conflict and brought harmony back to our clans, family or community."[189]
- The process itself works through the convening of a forum that includes the parties in conflict as well as their respective supporters. There are also two trained neutral facilitators that co-facilitate the process that are selected by the parties in conflict.[190]
Additional counselors and community workers are available as required.[191]
The overarching goal of the process is to restore harmony within the group as well as to ensure that the needs of all the participants are met.[192]
- The parties' involvement in this program enables them to work towards restoring harmony through dialoguing with the affected parties, accepting responsibility for past behaviours and facilitating/enabling the healing process that needs to be addressed following the wrongdoing.[193]
The solution is designed by the parties to the conflict. The role of the co-facilitators is to work with the parties in conflict to "make things right".[194]
The concept of 'making things right' includes the offender learning and acknowledging the impact of what he or she has done to the participants as well as making appropriate restitution to the victim.[195]
Restitution may take a number of forms one of which may be monetary compensation.[196]
- The personal situation of an offender is taken into account in so far as possible (i.e., in terms of any treatment the offender requires as well as the formulation of a workable arrangement for restitution).[197]
In an effort to "restore/rehabilitate" youth in the community, the Skenn:en A'onsonton program plans on incorporating traditional healing with other treatments (i.e., medicines, sweats, fasts) and to provide access to "Native Seers".[198]
If the wrongdoing is 'made right and the parties 'become peaceful again', a wrongdoer avoids having a criminal record and the consequences attached to such a record (i.e., in terms of employment and reintegration into society) and the wrongdoer is returned to the right path and "reintegrated into society as productive person.[199]
- In order to be eligible to participate in the program the requisite forms requesting access to the program must be obtained from the Alternative Justice Co-ordinator at Kahnawake.[200]
The program may be accessed either directly (through the offender or victim contacting the organization) or indirectly by referral from a variety of places including "community organizations, community members, Kateri Memorial Hospital, Peacekeepers, Kahnawake School Committee/Education, Courts [and] Kahnawake Sakotiia'takenhas Community."[201]
Reference to 'court' here should be read as including the section 107 Indian Act court for despite community dissatisfaction with the section 107 Indian Act court, Ron Skye has indicated that the Skenn:en A'onsonton program and the section 107 court are parts of a whole system "to be developed."[202]
Additional referrals may come through the Canadian criminal justice system at either of two points: pre-charge (i.e., by the police or Peacekeepers/Peacemakers) or post-charge (by the Crown Attorney).[203]
- While the process is under the community's jurisdiction,[204]
once a charge is laid, the community faces the prospect of a loss of jurisdiction reminiscent of the 1988 Longhouse case referred to above and detailed at Appendix 'A'. For this reason, the full-time program co-ordinator has stated that "[t]he most important step of the process is that this system is utilized before any charges are laid by police officers."[205]
The process is currently funded by the Mohawk Council of Kahnawake (band council). As at October 2001, other funding sources were being pursued.[206]
- Part I of this paper offered an overview of political and social order within the Community of Kahnawake pre- and post-contact. The importance of the clan system as the infrastructure for a peaceful decision-making process amongst the Rotinohshonni was discussed. An understanding of the traditional principles that inform the Rotinohshonni concept of 'justice' and an illustration of how these traditional principles operated within the clan system infrastructure to effectively resolve conflicts arising from criminal wrongdoing was provided. The social control processes in contemporary Kahnawake were also canvassed. A consideration of the impact of colonialism on the Onkwehonwe and, in particular, the Kahnawa'kehró:non illustrated the adaptability of the people and their processes as well as the challenges that come with such adaptation. The Skenn:en A'onsonton initiative was outlined as a contemporary example of such adaptation and its fit within contemporary Kahnawake explored. This background provides the context for a critical assessment of the likelihood that this initiative will successfully re-root itself in Kahnawake in Part II.
- The foregoing discussion of the pre- and post-contact governance and conflict resolution processes (Part I(i) and (ii) respectively) and the outline of the Skenn:en A'onsonton initiative (Part I(iii)) provides a comprehensive base from which to consider the strengths of and challenges faced by this initiative in re-rooting itself in Kahnawake. As will be seen, while the initiative has a number of strengths, it also faces a number of challenges from the impact of federal government initiatives aimed civilizing and later assimilating the Onkwehonwe. The complexity of the Community of Kahnawake itself presents very specific challenges to the initiatives success. These challenges however also provide opportunities for the community to empower itself and "assume a higher level of responsibility over its own justice system".[207]
- One factor that strongly supports the Skenn:en A'onsonton being able to successfully re-establish itself in Kahnawake is the fact that the process is 'home grown' and is controlled by the community. The presentation of this initiative to the community as a joint venture of the Kahnawake Justice Commission (a body that is a creation of the Mohawk Council of Kahnawake which itself is a creature of the band council system under the Indian Act) and other community members that are traditional Longhouse people was astute given that politics within Kahnawake sometimes pit the band council government against Longhouse people.[208]
- While the joint representation may not satisfy Longhouse 'purists', there are clearly some traditional people who are willing to entertain this contemporary process rather than reject it outright.[209]
The fact that the community was consulted on alternative dispute resolution processes is also important in terms of obtaining community support for an alternative process that takes its legitimacy "from the collective will" of the Kahnawake community.[210]
- Community ownership and control of this initiative is also important to the initiative's prospects for success for another reason. While there has been an increased interest and movement toward incorporating alternative justice processes within the context of the Canadian criminal justice system this movement has occurred from within that system. There are people within the Canadian justice system who perceive this movement towards alternative-type mechanisms as a movement "toward embracing Aboriginal reality, values, customs and perspectives."[211]
- While it may appear that 'traditional' resolution methods of First Peoples fit within the 'conciliatory model' of social control, there are key differences that inform issues integral to the resolution of conflict (i.e., what is meant by harmony, interests of the individual versus those of the group)[212]
that yield very different understandings of conflict resolution. First Peoples in contact with restorative justice processes originating from that system face the possibility that their experience of exclusion from the dominant legal system owing to will be replicated by exclusion from this alternative process.[213] Thus the fact that the Skenn:en A'onsonton process is home grown and controlled by the community of Kahnawake is of particular importance to its long-term success.
- Another factor in favor of the Skenn:en A'onsonton process being able re-root itself in the Kahnawake community is the fact that it is self-sustaining thereby insulating itself from political whims of government.[214]
Further, where restitution is paid, all monies paid would go to the victim and not court administration.[215]
This being said, however, the requirement that this initiative be self-sustaining places a tremendous burden on the community and the community has applied for funding for this program. The availability of such an initiative would seemingly translate into at least some reduction of caseload within the provincial court system resulting in some cost savings to the province of Québec which should be transferred to the Kahnawake Community.[216]
- The reality of such a proposal, however, is that it would likely become stuck within the jurisdictional quagmire that often attaches to matters involving Onkwehonwe. The province of Québec would likely adopt the position that the matter of funding for an alternative justice process for Onkwehonwe falls within the federal government's constitutional responsibility for "Indians, and [l]ands reserved for the Indians" pursuant to ss. 91(24) of the Constitution Act, 1867.[217]
The federal government would presumably take the position that funding for a restorative justice process as an alternative to the existing court system is within the province's constitutional responsibility for the administration of justice in the province pursuant to subsection 92(14) of that Act and as a result if any funding is to be provided it ought to be coming from provincial government coffers.[218]
The Onwehonwe would likely take the position that:
"[t]he financial responsibility appears to be a joint one
between those two levels of government, as we see it.
The federal government has constitutional jurisdiction for
Indian, Inuit and M[é]tis people. The Province has
constitutional responsibility for the administration of
justice. Both have a fiduciary obligation to Aboriginal
people."[219]
- The geographical limitation posed by the requirement that wrongdoing must have occurred within Kahnawake in order to access the Skenn:en A'onsonton process may not be problematic in terms of the initiatives prospects for successfully re-rooting itself in Kahnawake but it does pose a problem in view of the trend towards movement away from Territories to cities "in search of employment, educational opportunities and better services is continuing and appears to be increasing."[220]
- As the Aboriginal Justice Inquiry of Manitoba notes, "a sizeable percentage of the Aboriginal inmate population has been incarcerated for crimes committed outside Aboriginal communities such as Indian reserves and that approximately one-half of all inmates were raised off-reserve."[221]
This challenge, however, might be addressed in a post-charge context through resort to the section 107 Indian Act court. Offences falling within the court's jurisdiction at subsection 107(b) could either be "transferred from the provincial courts or initiated in the section 107 court."[222]
Once the offence was transferred to that court, perhaps the offence could then be referred to the Skenn:en A'onsonton program although the offence itself did not occur within Kahnawake.
- The importance of timing in the resolution of disputes amongst the Rotinohshonni was documented in the context of both pre- and post-contact Rotinohshonni society. While I am not familiar with the response time in relation to wrongdoing addressed by the Skenn:en A'onsonton initiative, a consideration of the timely response in the 1988 Longhouse decision is illustrative of the efficiency of an alternative process. A consideration of pre-contact conflict resolution within the Kanien'keha Nation revealed that the convening of a National Council to hear a matter is reserved for a serious offence and is a time intensive process. In the 1988 Longhouse decision, the wrongdoing was considered to be sufficiently serious that the Rotianer from other Kanien'keha communities were asked to help in adjudicating the matter and to sit in council.[223]
Despite the nature of the wrongdoing and the need for consensus-based decision-making, a mere eight days passed between the commission of the wrongdoing on February 17th, 1988 and the Longhouse decision of February 25th, 1988. This short time period reflects the philosophy that behaviours that jeopardize the peace and harmony of the community must be dealt with quickly and firmly in order to discourage further abuses to the society.[224]
By May 24, 1988 all restitution had been made to the victims of the wrongdoing.[225]
- The decision of the Longhouse as detailed in Appendix 'A' reflects the importance of moving beyond past behaviour, looking forward, restoring equity and setting things right for the future through the crafting of clear and comprehensible future accords[226]
- the philosophy which informs the Skenn:en A'onsonton process.
- Another strength of the Skenn:en A'onsonton process is that it allows room for alternative understandings of dispute and wrongdoing. Monture-Okanee writes:
"[t]he philosophy around which the Canadian system of
criminal law is constructed is that there will be disputes
among people. In other words, there will be conflict
quite naturally arising in social relationships. The role
of the law is to create mechanisms whereby these
'natural' human conflicts can be resolved. The form of
social control that Canada has accepted is an
externalized one. Social control is seen as a power of
the state which rests fully outside of the individual. One
Aboriginal interpretation of this recognition is that it is
one of the ways which Canadian citizens have given up
their sovereignty. I understand this form of sovereignty
which Canadians have deferred to the state to be about
individual responsibility. Aboriginal Peoples have
maintained a desire to be sovereign (or self-governing)
both as individuals and collectives. This means that we
have not deferred either our individual or collective
right(s) to be sovereign. This is a complex notion of
government relations which many non-Aboriginal people
have difficulty comprehending. It also significantly
impacts on the way dispute resolution is constructed."[227]
- The space created by the program for such alternative understanding occurs prior to the involvement of the Canadian criminal justice system. Referrals to the Skenn:en A'onsonton program come from a variety of sources including many points before the point where formal charges have been laid against a wrongdoer. Where wrongdoing has occurred within the Kahnawake community, and assuming the police/Peacekeepers have not entered the picture, this initiative provides the parties with the opportunity to label the wrongdoing and explore firsthand other wrongdoing that may have arisen that would not have been caught in the Canadian criminal justice paradigm. The 1988 Longhouse case in Kahnawake provides a useful illustration. In that case, the three young people involved had initially denied their involvement in stealing newspapers and setting fire to a number of buildings but later admitted their wrongdoing. The Longhouse system considered the deception of the youths to be very serious and the youths were required to apologize to the Longhouse for lying and each youth received his first warning under the System of Three Warnings discussed above.[228]
- The Canadian justice system would likely have glossed over initial denial of guilt and, in fact, that is what the Canadian system is based on - innocence until proven guilty. The Skenn:en A'onsonton initiative would allow the parties to personalize the process of addressing wrongdoing and in so doing provides the parties with a "new and different choice"[229]
to resolve disputes based on traditional principles that the parties can initiative on their own without the involvement of the criminal justice system.
- In addition to these strengths, however, the Skenn:en A'onsonton program does face a number of significant challenges. As discussed above, one of the program's strengths was that it allowed for the recognition of different concepts of what is meant by 'dispute'. This strength, however, hinged on two factors (i) no charges having been laid and (ii) the co-operation of the Kahnawake peacekeepers and other community members that may challenge the acceptance of this contemporary initiative thereby compromising the initiative's ability to re-root itself in Kahnawake. While program co-ordinator Dione, for example, is correct in stating that "[t]he one issue that is clear is that if no charges are laid and the dispute or conflict is resolved internally, we are acting sovereign - We are taking care of our own problems"[230]
it could also be argued that by not pushing the boundaries, the contemporary program traps the community within the existing Canadian criminal justice system paradigm and the dominant structure. To the extent that this is the case, this initiative is vulnerable to Monture-Okanee's criticism concerning the lack of a true alternative in alternative justice programs. Monture-Okanee, for example, argues that diversion programs operating within the "sanctuary of criminal law in Canada" (i.e., those programs where in exchange for an admission of culpability one receives the assurance that they do not have to appear in court or will not receive a criminal record) are not true alternatives but rather "merely options existing within the system[,]" "the same choice that is merely dressed differently."[231]
- This leaves First Peoples in the position where they are perceived as "being 'different from,' 'lesser to,' 'accommodated in' or 'outside of' what is legitimate in Canadian society."[232]
Monture-Okanee's point is not that these sort of diversion projects have no merit but that "many of these pilot projects are the smallest of the small steps in the dreams of Aboriginal Peoples and the maximum jurisdiction that the current legal system will allow Aboriginal Peoples to administer thereby serving to reinforce the status quo.[233]
On the other hand, however, as Monture-Okanee suggests, that "[a]ny project which successfully keeps an Aboriginal person from a sentence of incarceration is laudable."[234]
- A second challenge to the capacity of the Skenn:en A'onsonton process providing for the recognition of different understandings of 'dispute' is obtaining the co-operation of the Kahnawake peacekeepers and other community members. The Peacekeepers, for example, are empowered to directly affect the situation in terms of whether or not to refer a matter to the initiative pre-charge while community members exert their influence in terms of their instructions to the Peacekeepers, their willingness to refer wrongdoing, wrongdoers and victims to the program and their willingness to participate in the program. While it might be thought that the Canadian criminal justice system's failure of the Onkwehonwe would result in any alternative being embraced by the community, this perception would be naïve. In the 1988 arson case adjudicated by the Longhouse, for example, it was the Kahnawake Peacekeepers who took the matter outside of Kahnawake and requested the Québec Justice of the Peace to issue arrest warrants. In addition, one of the victims of the wrongdoing did not initially accept the traditional process for resolution of the wrongdoing but later changed his mind following the timely reparation made by the youth.
- There are a number of possible reasons why Peacekeepers and community members may not embrace an alternative process. Police and community members, for example, may lack confidence in a program based upon traditional Rotinohshonni teachings with which they have grown increasingly unfamiliar owing to federal government attempts to civilize and assimilate the Onkwehonwe generally. There may be a perception that an alternative approach that would result in the absence of a criminal record is indicative of a 'soft' system. These concerns, however, are particularly problematic for youth since, according to the Skenn:en A'onsonton website, "youth offenders or youth charged with a crime in Kahnawake, MUST have their cases heard in outside courts under the Quebec Juvenile Justice system."[235]
(Emphasis in italics mine, emphasis in capital letters in original) Since youth that are First Peoples are disproportionately likely to experience conflict with the Canadian criminal justice system[236]
and the population growth in First Peoples community generally is higher than the rest of Canada, possible concerns with lack of confidence in an alternative process is cause for concern.
- Both these possibilities, however, present the proponents of the Skenn:en A'onsonton program with an opportunity for the re-introduction to the community of the traditional Rotinohshonni principles upon which the Skenn:en A'onsonton program is based.[237]
The re-introduction of these principles, however, creates its own challenges.
- One challenge faced by the need to re-introduce traditional principles to contemporary Kahnawake is that these principles stem from the Kianerékowa (the Great Law of Peace), the contemporary interpretation of which is subject to multiple understandings thereby raising the issue of the 'purity' of the purity of what is being re-introduced and whether tradition can ever really be re-learned in a pure form. Concern with the 'purity' of what is being re-introduced may be of particular importance to some Longhouse people who may be reluctant to embrace a contemporary model based loosely on tenets of the Kianerékowa. As the discussion concerning post-contact governance outlined, one of the bases for the three Longhouses in contemporary Kahnawake is disputes over the interpretation of the Kianerékowa. The re-introduction of what may be seen as a less than authentic version of the Kianerékowa by members of a band-council government could be problematic and work against the initiative's success.[238]
- The purity of what is being re-introduced to the community also raises the issue of language and, in particular, the distortion of meaning when the Kianerékowa is translated into English. As Ron George writes,
"[t]he language is then a critical factor in not just
applying the law, but in first understanding the law.
Until the language is restored to its rightful place in
the lives of Aboriginal people, understanding the
nature of law from an Aboriginal perspective is
impossible."[239]
- The decimation of First Nations languages is attributable in large part to colonialism. The separation of children from their families and communities resulted in a distancing from language, culture, teachings and spiritual beliefs.[240]
- Concern with the recovery of 'pure' tradition, however, may be offset somewhat by the reality that
"Aboriginal customary law has not been fixed in some
static sense, but, instead, has continued to evolve
slowly to meet the changing needs, values and
circumstances present within Aboriginal communities.
It has retained, however, a respect for the ways of the
past, while being concerned about the interests of
generations yet to be born. This philosophical
orientation toward law and life has much to offer as the
underpinnings for a system dedicated to the pursuit of
justice."[241]
Moreover, there is support for the position that the hybridity/synthesis "of traditional Kanien'keha ('Mohawk') values with existing administrative structures" is essential to the "transition to independence."[242]
- The need to re-introduce traditional conflict resolution principles in order to address concerns with lack of confidence in a contemporary alternative dispute resolution process and to convince community members that reliance on such an alternative process based on traditional Rotinohshonni principles is not a 'soft' system raises a further concern with the saliency and power[243]
of traditional principles in contemporary society. While not all community members in Kahnawake follow traditional governance and conflict resolution processes taught by the Skennenrahawi and outlined in the Kaienerekowa (Great Law of Peace) the traditional system of governance and conflict resolution does exist in contemporary Kahnawake. While the existence of three Longhouses obviously limits the potential capacity of one larger Longhouse, the fact that three such Longhouses exist owing to disputes over the interpretation of the Kaienerekowa (Great Law of Peace) demonstrates the saliency and power of traditional principles. The customs and traditions of the Kanien'kehaka people have, "from time immemorial, dictated the procedure for administering justice" to the Kanien'kehaka "especially with respect to compensation for victims and their families."[244]
- The existence of the Longhouse system to adjudicate matters of importance such as the 1988 arson case provides a similar illustration of such saliency and power. Moreover, the Longhouse system, for some community members, serves the same function today (i.e., the basis of "social, cultural and political activity") that it performed traditionally.[245]
- A key challenge to the Skenn:en A'onsonton program's success is the infrastructure to support the process. Traditionally, the clan system infrastructure was integral to the maintenance of political and social order amongst the Rotinohshonni. Under the clan system, an act committed by one member against another had a ripple effect and touched the complex network of families, clans and Nations.[246]
While the clan system is still in existence, it has been compromised by government initiatives aimed at destroying traditional governance structures of Onkwehonwe.[247]
The forced removal of children from families and communities as part of this 'purification' process had, and continues to have, an impact on the clan system as it served to upset the harmony and balance within families and communities thereby distorting the responsibilities of family and community for their children and disrupting the egalitarian relationship that existed amongst First Nations men and women.[248]
- This challenge, however, provides the community of Kahnawake with an opportunity to heal some of this damage. In the community of Kahnawake, for example,
"[p]arents are reclaiming authority for the rearing of
their children; roles which have been eroded through
the non-Aboriginal system of welfare, Children's Aid,
the Quebec Juvenile Protection Act, some educational
programs and the influence of mainstream media."[249]
The process itself is a reminder that:
"[w]e must provide our children with something
positive to grasp on to. They need to know that every
person has worth and has a responsibility while they
are on this earth. In the traditional naming ceremony,
for instance, a new child is introduced to the clans
and family and the people are told that they must help
this person in life. If they are doing wrong, try to correct
them in a good way and when they are doing good,
encourage them. It is everyone's responsibility to shape
our community members into productive human beings."[250]
- Thus while the disruption of the clan system infrastructure does pose a serious challenge to Skenn:en A'onsonton's successfully re-rooting itself in Kahnawake, this problem may be more intense in the short-term than further down the road as the community of Kahnawake works to "rebuild its foundations" in order to support an approach to conflict resolution that aims to create harmony and restore peace, rather than taking an adversarial approach." [251]
- As discussed, many of the challenges facing this contemporary initiative stem from the impact of federal government initiatives aimed to civilize and later assimilate First Peoples outlined in Part I and do present as obstacles to the initiative successfully re-rooting itself in Kahnawake. These challenges, however, also present as opportunities for the community to 'return to the woods' (in a symbolic sense) and 'find themselves again'[252]
and in so doing to 'rebuild its foundations' drawing on its own strengths and traditions[253]
in order to provide the infrastructure necessary to facilitate the Skenn:en A'onsonton process re-rooting itself in Kahnawake. Viewed from this perspective, the Skenn:en A'onsonton process is a tool of empowerment that provides the community with a choice and encourages the community to take a chance. Existing dissatisfaction with the Canadian criminal justice system suggests that the community has nothing to lose by giving the initiative a chance.[254]
- A parallel can be drawn between the Peacekeeper's mission to convince five warring Nations to abandon their reliance on war as a method of dispute resolution and adopt his teachings of reconciliation, reason, compromise, and consensus as disciplines leading to the development of a 'good mind,' a state of being from which peace would naturally follow[,]"[255]
appears to parallel the efforts of the Kahnawake Justice Commission and others to persuade the community of Kahnawake to abandon their battle against the Canadian criminal justice system to address conflict that has caused such extensive harm to Kahnawa'kehró:non (and First Peoples generally) and adopt the principles of reason, satisfaction, persuasion and compensation[256]
as a way 'to become peaceful again'. The formation of the Rotinohshonni Confederacy is illustrative that the Peacemaker's mission was a success. The success of the Kahnawake Justice Commission et al. in their mission will be measured by whether the Skenn:en A'onsonton process successfully re-roots itself in Kahnawake. The requisite thinking that needs to happen to enable this rebuilding and re-rooting to take place starts, and rests, with the Kahnawa'kehró:non and the Community of Kahnawake.
On 17 February 1988 three young men (Karoniarahkwen (Ryan) Deer - Bear Clan, Sahkoianahawi (Jay) Diabo - Snipe Clan and Onakarakete (Dean) Horne - Bear Clan), following a night of excessive alcohol consumption, drove while intoxicated, stole newspapers from two convenience stores and set fire to two abandoned buildings (one of which burned to the ground). The three young men then proceeded to mislead the Kahnawake community about their involvement in the incidents.[257]
They then admitted their involvement to the Longhouse.
The three young persons were members of the Longhouse and wanted their wrongdoings addressed by the Longhouse. The Kahnawake Longhouse wanted the events handled exclusively by the Longhouse and made it quite clear that it did not need, require or want the involvement of the Canadian justice system. A letter dated 22 February 1988, for example, sent to the Chief of the Mohawk Council of Kahnawake (Chief Joseph Norton), the Chief of the Peacekeepers (Ronald Skye) and the Mohawk Council of Kahnawake's Justice Co-ordinator (Peggy Mayo) from Ahserekowa, War Chief (Allen Tekawerente Delaronde) and the Secretary of the Mohawk Nation (Marina Delaronde), read in part:
"... the undersigned [the three youths and their
respective parents] wish that no interference to the
process be made by an Peacekeepers, Band Council
Justice System or any non-Indian agencies so as the
peace that is in the process of being established
among the people involved in this issue will not be
disturbed."[258]
The day following the events, 18 February 1988, Karoniarahkwen (Ryan) Deer - (Bear Clan) was arrested by the Kahnawake Peacekeepers but released later that same day.[259]
The Mohawk Nation Council pronounced its decision on 25 February 1988. On 26 February 1988 the Mohawk Nation Council sent a letter detailing the results of the proceedings and the Longhouse sentence to Chief of the Mohawk Council of Kahnawake (Chief Joseph Norton), the Chief of the Peacekeepers (Ronald Skye) and the Mohawk Council of Kahnawake's Justice Co-ordinator (Peggy Mayo).[260]
A mere eight days passed between the night the wrongdoings and the date of the Longhouse decision. This short time period being illustrative of the need to address behaviours jeopardizing the peace and harmony of the community in a quick and firm manner to discourage further abuses of, and to, the society.[261]
In response to the wrongdoing of theft, the three offenders were required to reimburse the store owners twice the value of the goods taken. The offenders apologized to the store owners and on 9 March 1988 repaid double the amount of items taken.[262]
With respect to the second wrongdoing, the abusive consumption of alcohol, the offenders were required to participate in an alcohol evaluation program.[263]
The offenders completed a twenty hour program in May and June 1988.[264]
With respect to the third wrongdoing, deception of peers by lying about their involvement in the incidents of 17 February 1988, the offenders were required to apologize individually to the People of the Longhouse for lying and also received a first warning under the practice of the Three Warnings.[265]
The youths apologized on 26 February 1988.[266]
With respect to the fourth wrongdoing of driving while under the influence of alcohol, the three youth were forbidden to drive a car for a one year period from sundown to sunrise. This prohibition was to be in place until 25 February 1989.[267]
With respect to the fifth and final wrongdoing, the commission of acts of arson, the offenders were required to justly compensate the victims for their losses. This was done sometime on or before 24 May 1988.[268]
The offenders were also ordered to participate in the Kahnawake Community volunteer fire department for a one year period. This requirement was to be in place until 29 March 1989.[269]
In order to satisfy the requirements related to these wrongdoings, the three young men were required to live and work within Kahnawake Territory for a one year period.[270]
The same day the decision was released, 26 February 1988, a Longueuil, Québec Justice of the Peace, pursuant to the request of Kahnawake Peacekeepers, issued arrest warrants for the remaining two young men (Sahkoianahawi (Jay) Diabo - Snipe Clan and Onakarakete (Dean) Horne - Bear Clan) in relation to the three charges arising from the incidents of 17 February 1988 (conspiracy, arson and theft).[271]
On 18 March 1988 the Peacekeepers sought and obtained a third summons relating to those same three offences for the third youth, Karoniarahkwen (Ryan) Deer - Bear Clan, the youth originally arrested and released on 18 February 1988. Pursuant to the latter summons, the youth was required to appear in court on 19 April 1988.[272]
The 19 April 1988 appearance was postponed until 29 September 1988.[273]
Shortly before the 29 September date, the Attorney General of Québec, Mr. Gilles Rémillard, denied counsel for the Longhouse's request for a discretionary stay of proceedings.[274]
The youth chose not to appear in court on 29 September 1988 and a bench warrant was issued for his arrest.[275]
All three young men are subject to arrest as a result of the events of 17 February 1988.[276]
A.R.A. Consultants, McMahon J., "Feasibility Study of Alternative Dispute Mechanisms for Aboriginal People in Manitoba. Manitoba Aboriginal Justice Inquiry, Research Papers, Vol. II (4)-(7) 1989-1991).
Alfred, G.R., "The Meaning of Self-Government in Kahnawake" in Royal Commission on Aboriginal Peoples in For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples (Ottawa: Libraxus, 1997).
Alfred, G.R., Heeding the Voices of Our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (Don Mill, Ontario: Oxford University Press, 1995).
Alfred, T., Peace Power Righteousness: An Indigenous Manifesto Don Mills, Ontario: Oxford University Press, 1999).
Cariboo Tribal Council, "Faith Misplaced: Lasting Effects of Abuse in a First Nations Community" 8(2) Canadian Journal of Native Education.
Canadian Panel on Violence Against Women, Final Report of the Canadian Panel on Violence Against Women: Changing the Landscape: Ending Violence-Achieving Equality viz. a viz. Aboriginal Women (Ottawa: Ministry of Supply and Services Canada, 1993).
David, M., "Two Justice Systems For One Nation?" 6/4 Tribune Fuive 16.
Deom, C., "The Traditional Justice System of the Kanienkehaka With A Historical Background to Certain Crimes and Their Punishment" (June 30, 1988) [unpublished] (copy on file with writer).
Dickson-Gilmore, E.J., "Resurrecting the Peace: Traditionalist Approaches to Separate Justice in the Kahnawake Mohawk Nation" in R.A. Silverman and M.O. Nielsen, Aboriginal Peoples and Canadian Criminal Justice (Toronto: Butterworths, 1992).
Dione, D./Karonhiahente, "Alternative Dispute Resolution: 'Planting Seeds of Peace' A Perspective by a Trained Facilitator" <http://www.kahnawake.com/justice/news2.htm>
Elliott, D.W., Law and Aboriginal Peoples in Canada (4th ed.) (North York: Captus Press, 1992).
Finn, G. ed., Limited Edition: voices of women, visions of feminism (Halifax: Fernwood Publishing, 1993).
Foster, H., "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases (1992) 21 Mta. L.J. 343.
Frideres, J.S., Aboriginal Peoples in Canada: Contemporary Conflicts (5th ed.) (Scarborough: Prentice-Hall, 1998.
George, R.C., "The Indigenous Law of Aboriginal People: Restoring the Foundation of Justice". Paper submitted in final completion of LL.M. studies at the University of Ottawa, Faculty of Law, Common Law Section. [unpublished]
George-Kanentiio, D., Iroquois Culture & Commentary (Sante Fe, New Mexico: Clear Light Publishers, 2000).
Gibson, J.A., Concerning the League: The Iroquois League Tradition As Dictated in Onondaga by John Arthur Gibson, ed. and trans. H. Woodbury (Winnipeg: Algonquian and Iroquoian Linguistics, 1992).
Gosse, R., Youngblood Henderson J. and Carter, R., compilers, Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (Saskatoon: Purich Publishing, 1994).
Hamilton A.C. and Sinclair, C.M., Report of the Aboriginal Justice Inquiry of Manitoba, Vol. 1, The Justice System and Aboriginal People (Winnipeg: Queen's Printer, 1991). <http://www.ajic.mb.ca/reports/final_toc.html>
Haslip, S., "A Treaty Right to Sport?" (June 2001) 8(2) Murdoch University Law Review (Perth, Australia) <http://www.murdoch.edu.au/elaw/issues/v8n2/haslip82.html>
Haslip, S. "Conditional Sentencing and the Overrepresentation of Aboriginal Offenders in Canadian Penal Institutions" (2000) 4 Across Borders Int'l L. J. 1 (Gonzaga University, Spokane, Washington). <http://law.gonzaga.edu/borders/Articles/010501_haslip/index.htm>
Haslip, S., "Aboriginal Sentencing Reform in Canada - Prospects for Success" (March 2000) 7(1) University of Murdoch Law Review, Perth, Australia. <http://www.murdoch.edu.au/elaw/issues/v7n1/haslip71.html>
Haslip, S, "Who's Zooming Who? R. v. Gladue: Sentencing Reform and Aboriginal Peoples" (Summer 2000) 5(2) Justice as Healing 1.
Haslip, S., "A Critical Consideration of Criminal Code Sentencing Reform Through Hay's Ideological Lens: 'Who's Zooming Who'?" Paper completed in partial satisfaction of Legal Jurisprudence course in partial satisfaction of LL.M. Degree, University of Ottawa Winter Term, 2000. [unpublished].
Haslip, S., "A Consideration of the Value of Mediation in Relations between First Nations and Western Societies" (paper prepared for course 53-472 Sociology of Antagonism and Mediation Carleton University Summer 1992 [unpublished].
Hay, D., "Property, Authority and the Criminal Law" in D. Hay et al., Albion's fatal tree: crime and society in eighteenth-century England (New York: Pantheon Books, 1975).
Hayden Taylor, D., director and Basmajian, S., producer, Redskins, Tricksters and Puppy Stew (Montréal: National Film Board, 2000)
Hylton, J.K. m Aboriiginal Self-Government in Canadda: Current Trends and Issues (2d (ed.) (Saskatoon: Purich Publishing, 1994.
S. Imai, Aboriginal Law Handbook (2d ed.) (Scarborough: Carswell, 1999).
Jackson, M., "In Search of the Pathways to Justice: Alternative Dispute Resolution in Aboriginal Communities" (1992) 147 U.B.C.L. Rev. 147-238.
Jackson, M., "Locking Up Natives in Canada" (1989) 23 U.B.C. L. Rev. 215.
Johansen, B.E., "Dating the Iroquois Confederacy" 1(3 & 4) (Fall: October/November/December 1995) 62-63. <http://www.ratical.com/many_worlds/6Nations/DatingIC.html>
Kanatiyosh, "The Influence of the Great Law of Peace on the United States Constitution: An Haudenosaunee (Iroquois) Perspective", Part 2 <http://www.tuscaroras.com/graydeer/influenc/page1.htm>
Keon-Cohen, B.B., "Native Justice in Australia, Canada and the U.S.A.: A Comparative Analysis" (1986) C.L.A.B. 186 at 189-190.
Lafitau, J., Customs of the American Indians (1974-77 ed.).
Law Reform Commission of Canada, Minister's Reference: Aboriginal Peoples and Criminal Justice (Ottawa: Law Reform Commission, 1991).
Litwak, J.B., "Mohawk community established innovative peacemaking center" (October 1991) 12 Consensus. <http://nativenet.uthscsa.edu/archive/nl/9202/0247.html>
Mercredi, O. and Turpel, M.E., In the Rapids: Navigating the Future of First Nations (Toronto: Penguin Books, 1994).
MikeTBen, "The Founding of the Kahniakehaka (Mohawk) Nation Council" <http://hometown.aol.com/miketben2/miktben7.htm
Miller, J.R., Shingwauk's Vision: a history of residential schools in Canada (Toronto: University of Toronto Press, 1996).
Milloy, J.S., A National Crime: The Canadian Government and the Residential School System, 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999).
Mohawk Council of Kahnawake, Canada Kahnawake Relations, <http://www.kahnawake.com/ckr/1812.htm>)
Mohawk Council of Kahnawake, Kahnawake Justice Commission, Vol. 1(1) (Sekéha 2000) Planting the Seeds of Peace (Kahnawake: Mohawk Council of Kahnawake, 2000).
Mohawk Council of Kahnawake, Kahnawake Justice Commission, "Alternative Dispute Resolution - Introduction" <http://www.kahnawake.com/justice/index.shtml>
Mohawk Council of Kahnawake, Kahnawake Justice Commission, "Traditional Justice Coming Back to Kahnawake" (July 2000) News Release. (Kahnawake: Mohawk Council of Kahnawake, 2000).
<http://www.kahnawake.com/justice/news1.htm>
Mohawk Council of Kahnawake, Kahnawake Justice Commission, "Restorative Justice: One Form of Alternative Dispute Resolution" <http://www.kahnawake.com/justice/rjustice.htm>
Mohawk Counsel of Kahnawake, Kahnawake Justice Commission, "People Involved - The Kahnawake Justice Commission" <http://www.kahnawake.com/justice/who.htm>
Monture-Okanee, P., "Alternative Dispute Resolution: A Bridge to Aboriginal Experience?" in C. Morris and A. Pirie, eds., Qualifications For Dispute Resolution: Perspectives on the Debate (Victoria, British Columbia, UVic Institute for Dispute Resolution, 1994) 131-140 at 137-138.
Monture-Okanee, P. "I Know My Name: First Nations Woman Speaks in G. Finn, ed., Limited Edition: voices of women, visions of feminism (Halifax: Fernwood Publishing, 1993).
Monture-Okanee, P.A., "The Roles and Responsibilities of Aboriginal Women: Reclaiming Justice" (1992) 56 Sask. L. Rev. 237.
Monture Okanee (now Monture-Angus), P.A., in S. O'Connor, P. Monture and N. O'Connor, "Grandmothers, Mothers and Daughters" (Summer/Fall 1989) 10(2,3) Canadian Woman Studies.
Morris, A., "The Olympic Experience: An Aboriginal Perspective" 9-11 at 9 in T. Taylor, ed., How You Play the Game: Papers from the First International Conference on Sports and Human Rights (September 1-3, 1999) (Australia: Human Rights Council of Australia, 2000) (ISBN 1 8636 566 2).
Morris, C. and Pirie, A., eds., Qualifications For Dispute Resolution: Perspectives on the Debate (Victoria, British Columbia, UVic Institute for Dispute Resolution, 1994)
Morse, B.W., "A Unique Court: S. 107 Indian Act Justices of the Peace" (1982) C.L.A.B. Nos. 2 & 3 131-150.
National Round Table on Aboriginal Justice Issues, Aboriginal Peoples and the Justice System: Report of the National Round Table on Aboriginal Justice Issues (Ottawa: Supply and Services, 1993).
Newhouse, S., The Constitution of the Confederacy by the Peacemaker, revised by Chief Jacob E. Thomas (Teiohonwé:thon) 16th February 1989 (Wilsonville, Ontario: Sandpiper Press, 1989).
Nielsen, M.O., "Criminal Justice and Native Self-Government" in R.A. Silverman and M.O. Nielsen (eds.) Aboriginal Peoples and Canadian Criminal Justice (Markham: Butterworths, 1992.
Ontario Federation of Indian Friendship Centres, Breaking the Cycle: Community Youth Justice Alternatives (Toronto: Ontario Federation of Indian Friendship Centres, 2001).
O'Connor, S., Monture, P. and O'Connor, N., "Grandmothers, Mothers and Daughters (Summer/Fall 1989 10(2,3) Canadian Woman Studies 38-39 at 38.
Osnaburgh/Windigo Tribal Council Justice Review Committee, Report of the Osnaburgh/Windigo Tribal Council Justice Review Committee (1990).
Quigley, T., "Some Issues in Sentencing of Aboriginal Offenders" in R. Gosse, J. Youngblood Henderson & R. Carter, compilers, Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (Saskatoon: Purich Publishing, 1994).
Royal Commission on Aboriginal Peoples, For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples (Ottawa: Libraxus, 1997).
Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice In Canada (Ottawa: Supply and Services, 1996).
Royal Commission on Aboriginal Peoples, Aboriginal Peoples and the Justice System, Report of the National Round Table on Aboriginal Justice Issues (Ottawa: Supply and Services, 1993).
Royal Commission on Aboriginal Peoples, Final Report, Volume 1: Looking Forward, Looking Back Available online at <http://www.indigenous.ca/Links_Partnerships.htm>
Rudin, J., "Aboriginal Self-Government and Justice" in J.H. Hylton, Aboriiginal Self-Government in Canadda: Current Trends and Issues (2d ed.) (Saskatoon: Purich Publishing, 1994.
Silverman, R.A. and Nielsen, M.O., eds., Aboriginal Peoples and Canadian Criminal Justice (Toronto: Butterworths, 1992).
Starnes, S., "Mohawks stress healing in Akwesasne conflict resolution program" (Summer 1991) 3(2) Interaction 1.
Taylor, T., ed., How You Play the Game: Papers from the First International Conference on Sports and Human Rights (September 1-3, 1999) (Australia: Human Rights Council of Australia, 2000) (ISBN 1 8636 566 2).
Tehanetornes, Wampum Belts 3 (1993).
Wallace, P.A.W., White Roots of Peace, Port Washington, New York: I.J. friedman, 1968, c. 1946.
Yarrow, D., The Great Law of Peace: New World Roots of American Democracy" (1987) at <http://www.kahonwes.com/iroquois/document1.html>
An Act Respecting Offences Against Public Morals and Public Convenience (R.S.C.
1886, c. 157).
An Act to Amend the Indian Act, 1880 (S.C. 1881, c. 17 (44 Vict.).
An Act to Further Amend the Indian Act, 1880 (S.C. 1882, c. 30 (45 Vict.).
An Act to Further Amend the Indian Act, 1880 (S.C. 1884, c. 27 (47 Vict.).
An Act to Further Amend The Indian Act, Chapter Forty-three of the Revised Statutes (S.C. 1890, c. 29, s. 9).
An Act to Further Amend the Indian Act (S.C. 1895, c. 35, s. 7).
Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, formerly the British North America Act, 1867.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
Criminal Code of Canada (R.S.C. 1985, c. C-46).
Draft Umbrella Agreement With Respect To Canada/Kahnawake Intergovernmental Relations Act" dated January 17, 2001.
Indian Act (S.C. 1876, c. 18).
Indian Act (R.S.C. 1886, c. 43).
Indian Act (S.C. 1951, c. 29).
Indian Act (R.S.C. 1985, c. C-5).
Kaienerekowa (Great Law of Peace).
Skennen, Kashastensera and Kariwiio (Peace, Power and Righteousness).
The Criminal Code, 1892 (S.C. 1892, c. 29) (55-56 Vict.).
Two Row Wampum.
R. v. David [2000] O.J. No. 561 (Court File No. 2070-98) (February 21, 2000) (Sup. Ct).
R. v. Deer (No. 505-01-000983-888) (Ct. of Sessions of Peace, District of Longueuil, Québec).
R. v. Gladue [1999] 1 S.C.R. 688 at 727.
R. v. Williams [1998] 1 S.C.R. 1128.
Aboriginal Justice Inquiry of Manitoba:
<http://www.ajic.mb.ca/reports/final_toc.html>
Gonzaga University, Spokane, Washington
<http://law.gonzaga.edu/borders/Articles/010501_haslip/index.htm>
Indian and Northern Affairs Canada
<http://www.ainc-inac.gc.ca/qc/gui/kahnawake_e.html
MikeTBen
<http://hometown.aol.com/miketben2/miktben7.htm
Mohawk Council of Kahnawake:
http://www.kahnawake.com/ckr/1812.htm>)
http://www.kahnawake.com/council/chiefs/tgilbert.htm
http://www.kahnawake.com/council/chiefs/index.htm>
http://www.kahnawake.com/council/index.htm>
http://www.kahnawake.com/justice>
http://www.kahnawake.com/justice/index.shtml>
http://www.kahnawake.com/justice/news1.htm>
http://www.kahnawake.com/justice/news2.htm>
http://www/kahnawake.com/justice/rjustice.htm>
http://www.kahnawake.com/justice/who.htm>
Murdoch, Australia
http://www.murdoch.edu.au/elaw/issues/v7n1/haslip71.html>
http://www.murdoch.edu.au/elaw/issues/v8n2/haslip82.html>
Miscellaneous
http://www.ofifc.org/Page/NewsOld.asp>
Nativenet:
http://www.nativenet.uthscsa.edu/archive/n1/9202/0247.html>
Ratical
http://www.ratical.com/many_worlds/6Nations/DatingIC.html>
Royal Commission on Aboriginal Peoples:
http://www.indigenous.bc.ca/v1/Vol1Ch9s9tos9.14.asp>
Schoolnet:
http://www.schoolnet.ca/aboriginal/issues/justice-e.html>
http://www.schoolnet.ca/aboriginal/7gen/confed-e.html>
Six Nations:
http://sixnations.buffnet.net/Great_Law_of_Peace/>
http://sixnations.buffnet.net/Great_Law_of_Peace/?article=how_does_grand_council_work>)
http://sixnations.buffnet.net/Great_Law_of_Peace/?article=three_principals>
http://sixnations.buffnet.net/Great_Law_of_Peace/?article=who_are_chiefs>
Tuscaroras:
http://www.tuscaroras.com/graydeer/influenc/page1.htm>
http://www.tuscaroras.com/jtlc/JTLC/Purpose_of_the_JTLC.html>
Tyendinaga:
http://www.tyendinaga.net/amsp/youth99/clan/>
Document author: Susan Haslip
Document creation: March 2002
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