An Aboriginal Justice System

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 is 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 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 as 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."

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