Indigenous justice systems have available a broad
array of processes that can be utilized appropriately. They
may include traditional fora for dispute resolution, peace
making, talking circles, family or community gatherings, and
traditional mediation. All involve methods of resolving
problems and restorative and reparative justice.
Some Canadian First Nations have structured relationships
that are an integral part of the legal system. Even where
certain traditions, clans, etc., have fallen from use, the
interlocking relationships in First Nation communities may
still determine how problems are resolved.
For example, in many tribal communities, parents and the
extended family are expected to nurture, supervise, and
discipline their children. When parental misconduct occurs,
such as with physical or sexual abuse or neglect, the
parents and extended family convene through the leadership
of an elder to address the matter. In a minor case of
physical abuse or neglect, the family forum is used. The
distributive aspect is invoked extensively to ensure
protection of the children and to monitor and enforce proper
parental behavior and responsibility, which is regulated by
the family. More serious cases may involve tribal officials.
In the family and community forums and the traditional
courts, those accused of wrongdoing are required to give a
verbal account of their involvement in an incident, whether
or not they admit to the accusations. This verbal account is
key in discovering the underlying factors precipitating the
problem. It requires participation by the offender's family
and relatives who may have to explain the offender's
misconduct, especially when some type of victimization has
occurred. For example, parents may be admonished for not
providing proper discipline and supervision for their
children who vandalized or destroyed property. Relatives may
be criticized for allowing a son or brother to abuse his
wife or children. Verbal accountability by the offender and
the offender's family is essential to express remorse to the
victim and the victim's family.
Face-to-face exchange of
apology and forgiveness empowers victims to confront their
offenders and convey their pain and anguish. Offenders are
forced to be accountable for their behavior, to face the
people whom they have hurt, to explain themselves, to ask
forgiveness, and to take full responsibility for making
amends. Observing and hearing the apology enables the victim
and family to discern its sincerity and move toward
forgiveness and healing. Forgiveness is strongly suggested,
but not essential for the victim to begin healing.
The restorative aspect frequently involves the use of
ritual for the offender to cleanse the spirit and soul of
whatever it is that has caused the offender to behave
offensively. Ceremonial sweats, fastings, purifications and
other methods are used to begin the healing and cleansing
process necessary for the victim, the offender, and their
families to regain mental, spiritual, and emotional
well-being and to restore family and communal harmony.
The agreements reached in family and community forums are
binding. Participants are compelled to comply through the
same interlocking obligations established in individual and
community relationships. Compliance and enforcement are
important aspects of indigenous systems because there is
little coercion. Accepting punishment does not guarantee
that an offender will be accountable. Therefore, it is
essential that offenders perform outward acts to demonstrate
their responsibility for correcting behavior. Offender
accountability is essential to ensure compliance with
decisions and to prevent further criminality or relapse into
deviant behavior. Equally important is for punitive
sanctions to be decided and applied by individuals who were
affected by the offender's behavior.
Many customary sanctions to appease victims and to
safeguard against vengeance may still be in use and offer
alternatives to incarceration. These include public
ridicule, public shaming, whippings, temporary and permanent
banishment, withdrawal of citizenship rights, financial and
labor restitution, and community service. Among the Warm
Springs Tribes in Oregon, it is customary to refer
lawbreakers to the ''whipman,'' who may whip a person for
misconduct.
The indigenous process is also used in offenses where
there are no victims, such as problems between parents and
children, individual misconduct, or alcohol consumption.
Family members affected by the offender's behavior or who
are concerned with the offender's welfare may participate.
Many tribal people view crime, delinquency, and other
deviant behaviors as symptoms of bigger family problems.
Widening the affected target group to include the offender,
parents, siblings, and other extended family members enlists
help from those most familiar with the situation to assist
in correcting and preventing more serious crime.
The indigenous process can often be extremely
uncomfortable and emotional because it involves
participation by everyone affected, but great care is taken
by elders to provide a safe environment for matters to be
discussed. The distributive nature of this process uses the
extended family as a resource for the offender, the victim,
and the community to resolve problems, to ensure compliance,
to provide protection, and to retain ownership of the
problems.
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