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Alberta Online Encyclopedia
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Nature's Law
Spiritual Life, Governance, Culture, Traditions, Resources, Context and Background
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The Indigenous Justice Process
Making Room

The Goal of "Justice"

The United States
 Experience

Ensuring Space Is
Left Open In Canada

An Apache
 Paradigm

The Informal
System of Justice

Customary Law

Canada, Too, Has
 Deep Differences

The Indigenous
 Justice Process

The Navajo
 Approach to
 Reconciliation

Visual representation of nature's laws


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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