An Aboriginal Justice System
An Aboriginal Justice System
From: Currents Vol.6, No.3 pp.14-16
© 1990 Urban Alliance on Race Relations
From: Currents Vol.6, No.3 pp.14-16
© 1990 Urban Alliance on Race Relations
One of the major remedies proposed in attempting to resolve the
crisis of the relationship of Native people with the justice
system in Canada is the concept of a separate legal system for
aboriginal people. Many argue that this is the only meaningful way
for aboriginal people to gain control over the justice system and
secondly, the only means to support traditional laws and ways.
Thirdly, a separate legal system is suggested as the only way to
ensure that the justice system is responsive to community needs.
Finally, a separate legal system is considered necessary and
entirely appropriate within the general goal of
self-government.
Historical Precedents
In a consultative conference to the Royal Commission on the Donald
Marshall Jr. Persecution (November 24-26, 1988), Russel Barsh, an
American lawyer and academic with wide experience in Native legal
issues indicated that plural legal systems have very respectable
Anglo-Saxon legal roots. Barsh, in providing an overview of the
historical traditions of plural legal systems, showed how the
Anglo-Saxon legal system, the common law system, in fact, evolved
from a highly decentralized highly pluralistic system. It included
such things as baronial courts, fair courts, various kinds of
canon law courts and municipal corporation courts. Purely business
corporations also had their own courts. The Virginia Company, when
it settled people in what is now the state of Virginia in the
United States started out with corporate company courts. There was
even, for example, a Jewish exchequer which handled cases among
Jewish merchants according to Talmudic Law that was recognized by
the English legal system in the Middle Ages and early Renaissance.
This was also reflected in the preservation of the system of local
juries well into the early 18th and l9th centuries, even after the
system of formal administration of justice had centred in London
and judges no longer travelled on circuits to all the different
towns, shires and villages in the country. Judgment was taken in
London but the jury was selected locally. The sheriff would
impanel a jury of people who lived right in the area where the
offence had happened. They took the final decision on what the
facts had been and what should be done with the offender.
Barsh went on to note that we already have a dual system in
respect of the special treatment of Quebec and Quebecois law in
Canada, under the Constitution. There is a parallel arrangement in
the United States with Louisiana, which also has a civil law
system. In the United Kingdom, Scottish Law is still a recognized
legal system. The differences between Scottish Law and English Law
in respect of the development of law in Quebec and the development
of the common law in the other provinces of Canada, are not that
far apart compared to the gulf that often separates conceptions of
justice and appropriate intervention in problems between Native
communities and non-Native communities.
Separate Aboriginal Legal Systems in the U.S.
In the United States, there has been a century of evolution of
different forms of local jurisdiction and adjudication in Indian
communities. Separate legal systems were contemplated in most
treaties made with Indian tribes in the States. This included for
example, extradition arrangements, which presumed that only
certain people would be extradited and others would be handled
locally.
In the 1980s the federal courts in the United States basically
recognized and entrenched two rules. The first instance, Indian
communities should handle their own offenders by themselves, under
their own laws and that, only if that failed, should an offender
be extradited or removed from that community and dealt with
according to Anglo-American Law. The second was that in that case,
the individual should be subject to federal prosecution under
federal norms or procedures. It was viewed that the states were
too close to the frontier, to the conflict over land and
resources, and were less likely to be fair to Native people then
the National courts.
The entrenchment of these principles led to a gradual
formalization of procedures, first, by the appointment of judges
and Indian police in the 1980s. Then in the 1930s, tribal
constitutions that were developed under the Indian
Reorganization Act as part of American New Deal program,
specifically reserved judicial power to tribal governments.
Funding for modernizing tribal courts by developing facilities,
police training and codification of law, became available in the
late '60s and the early to mid '70s.
This infusion of resources, according to Russel Barsh, triggered
both a tremendous Anglo-Americanization of tribal courts, and a
reaction in Indian communities to seize more community control and
make the courts more Indian, more indigenous. That led to things
like the formation of tribal bar associations, tribal judges'
associations, institutes and programs for the development of
'Indian' Indian law; i. e. not federal Indian law but Indians' own
law. This has led to a return in the last few years in a number of
tribal courts systems, to models of mediation, conciliation or so
called 'peacemaker' systems, based on Six Nation's models.
Barsh argues, "The tribal courts system, of which there are 150
independently operating throughout the United States, has made
adjudication more accessible, more informal, more understandable.
There's been more linguistic flexibility. A number of court
systems routinely are working bilingually. Judges tend to be, in
the best of these systems, far more sensitive to, familiar with,
and responsive to the community situation and cultural standards
of what is just. In the best cases, they also tend to be highly
mediatory and conciliatory. People go away feeling better instead
of just being mad at the judge and the result. Community
confidence and support, in the best tribal court systems, has been
buoyed. And in some systems, there has been the positive
development of a common law system of standards in fields like
property and tort, which are totally independent, which are new,
which work and which people think are fair. They have evolved as
new systems of common law that are appropriate to the economic and
social relations in that community."
International Precedents
The United States and Canada are not only places where these
topics are being discussed. For example, Greenland, which is now
in a process of completing a transition of home rule from Denmark,
has its own Inuit Judicial System which is highly effective. In
northern Norway and Sweden, efforts are being made now to
establish Samme Parliaments, which would produce Samme codes for
relations among Samme people and presumably have a justice system
in the north of Scandinavia to enforce those codes.
There has been an experiment for a number of years in the Northern
Territory of of Australia on a separate court system for the
Yirrkala people that seems to work. It's highly informal and
highly customary. When they're asked to explain what the rules
are, the rules are things like, 'people shouldn't be bad to each
other'. But it works, because it's a system of resolving disputes
in a manner the community regards as fair and final.
New Zealand is looking at what they call a partnership model with
the Maori people that would probably lead to a formalization of
jurisdiction in the tribes over a wide range of internal Maori
concerns.
United Nations
There has been an evolving consensus in the United Nations about
both the importance of recognizing the negative impact of national
criminal systems historically on indigenous people and the value
of using plural legal systems as a way of addressing them.
Pluralism is gradually gaining recognition as an effective way to
ensure justice and public order in indigenous territories while
respecting their right to a degree of cultural and linguistic
freedom.
There are two parallel exercises in the United Nations presently
being pursued. One is the drafting of a convention of the
International Labour Organization dealing with indigenous policy
generally and land rights specifically. The other is a broader
policy declaration being prepared by a subcommittee of the United
Nations Commission on Human Rights. The draft ILO convention
provides that indigenous peoples would have the right to retain
their own customs and institutions (subject only to international
human rights standards and national charters of rights, if any):
"the right to deal with crimes or offences according to their own
customary methods," "the right to have their customary laws taken
into account in the application of any national laws," and "the
right to have their economic, social and cultural characteristics
taken account of in sentencing and diversion."
