Restorative Justice Practices of Native American, First Nation and ...

May 26 2004www.restorativepractices.orgRestorative PracticesE FORUMRestorative Justice Practices of Native American, First Nation and OtherIndigenous People of North America: Part TwoBY LAURA MIRSKYThis is part two in a series of articlesabout restorative justice practices ofNative American, First Nation andother indigenous people of NorthAmerica. The series is not intended beall-inclusive, but rather a broad thematicoverview. This article includesinterviews with Louise Thompson, ofthe Mohawk Nation of Akwesasne, andLeanne Douglas, Christine Douglasand Stephanie Sandy of the MnjikaningFirst Nation. Part one of the seriescan be read at http://www.restorativepractices.org/library/natjust1.html. A relatedeForum article, “The Wet’suwet’enUnlocking Aboriginal Justice Program:Restorative Practices in British Columbia,Canada,” can be read at: http://www.restorativepractices.org/library/wuaj.html.In First Nation and Native Americanjustice, healing, along with reintegratingindividuals into their community,is paramount. Native justice involvesbringing together victims, offendersand their supporters to resolve a problem.This parallels the philosophy andpractice of the restorative justice movement.In the Native worldview there isa deep connection between justice andspirituality; harmony and balance areessential to both.The Mohawk Nation of Akwesasne JusticeDepartment has developed a comprehensivecommunity justice program, includingthe Council of Neh-Kanikonriio(the Good Mind), based on traditionalprinciples and culture. (The website ofthe Mohawk Nation of Akwesasne JusticeDepartment is: http://www.akwesasne.ca/justice.htm.) Akwesasne territory spansthe borders of the United States andCanada, the state of New York and theLouise ThompsonJustice CoordinatorMohawk Council of Akwesasneprovinces of Ontario and Quebec. All ofthese jurisdictions claim control of theAkwesasne, which causes conflict, saidLouise Thompson, justice coordinatorfor the Mohawk Council of Akwesasne,who is responsible for the administrationof the Akwesasne Legislative DevelopmentProgram.“When people get involved with thejustice system, there are so many systemsthat apply here,” said Thompson. “Whenpeople get into a conflict, sometimes theydon’t adhere to the laws, because they say,‘Those laws don’t apply to me.’ We werehere before the invasion of the white orother cultures.”Thompson talked about the Two-RowWampum Belt (Kahswenhtha), whichrepresents the Mohawk (Kanien’kehake)treaty with non-Aboriginal peoples. “Weget our support from that when we createour laws,” she said. The belt has a whitebackground with two parallel purple stripsrunning through it. One strip representsFirst Nation people; the other representsnon-First Nation people. Said Thompson,“It’s recognized that these two peopleare two different cultures with differentvalues and principles, and that the lineswill always be parallel but will never meet.That allows us to carry our own values andprinciples in our own row and recognizethat they have their own laws and valuesand principles on their side. If you come© 2004 INTERNATIONAL INSTITUTE FOR RESTORATIVE PRACTICES

Restorative PracticesE FORUMinto our territory, our laws apply to you,and vice versa. Just like if somebody fromthe U.S. went to France.”Because of the Two-Row Wampum, theJustice Department of Canada recognizesrights of Native people to create theirown laws, said Thompson. The JusticeDepartment of Canada developed theAboriginal Justice Department, whichprovided $72 million to help the FirstNations create their own justice systems.“Now a lot of people are developingtheir own justice programs and thegovernment is actually saving money.The federal penitentiaries were crowdedwith Native people. Ten years ago it cost$46,000 a year to keep one inmate injail. But when we rehabilitated them itcost nothing, so they gave us money.” Thesame premise applies to probation, saidThompson. “They said, Who would bebetter to supervise these people than thepeople themselves? That’s where we gotthe money to operate our own probation,parole and police departments.”“The Indian Act was forced upon us in1898 in Canada, and it had all these rulesand policies on how to conduct yourself.But we don’t force things on people. Ourcustom is to ask the people what theywant to do—to come to a communitycollective agreement.” Accordingly, in1991, the Akwesasne Justice Departmentperformed an assessment for the community,asking justice-related questions:“Who should be addressing crimes? Doyou think that the outside courts shouldbe doing this or should we be doing itinternally?” The results of the surveywere used by the department to developan administration to address problemsthemselves, including their own laws,their own mechanism to resolve conflicts,and their own enforcement andrehabilitative processes.In 1994, the department organizedthe Council of Neh-Kanikonriio. Itwas decided that whenever there was anMay 26 2004issue, a conflict or a dispute it should goto this council, “the ones who sit withthe people and come up with solutionsof how to make things right and restorethe balance and harmony within the community,”said Thompson. About 30 menand women sit on the council—respectablecitizens of the community—elders,middle-aged people and a few young“The Indian Act was forcedupon us in 1898 in Canada.But we don’t force things onpeople. Our custom is to askthe people what they want todo—to come to a communitycollective agreement.”—Louise Thompsonpeople. A training seminar teachescouncil members the elements necessaryto conduct a hearing.A panel of three or four councilmembers reviews each case. The panel,the victim and offender involved in theincident, and the resource staff—drugand alcohol counselors, child and familyservice workers or mental health workers,depending on the circumstances—meetfor a hearing and come up with an agreement.The council asks people who cometo them who else they would like to attendthe hearing. “Sometimes people ask to attend,and we ask the victims’ and offenders’permission,” said Thompson. Thissystem has been in use since 1995, aidedby United States federal and Ontarioprovincial government funding.The first thing offenders must do in ahearing is “give respect to Mother Earth,”said Thompson. Often people involvedin criminal activity have totally neglectedthat responsibility, she said. “We bringthese people back down to reality andback down to earth, make them realizewww.restorativepractices.orgthat life is so much more meaningful thanhaving money to buy cars and clothes.You have to believe that there’s somebodyspiritual over you.”The next step in a hearing is to acknowledgewhy the person has beenbrought before the panel, in a respectfulway, welcoming that person to theoccasion. Then everyone tells the circumstancesof what happened, and eachperson is asked to recommend the bestway to restore the balance and harmonyin the situation. A facilitator—a paidjustice-program staff member who coordinatesthe hearing and organizes thecircle—takes notes; panel members preparethe document of an agreement andeverybody signs it.The process used in the council isderived from traditional methods, saidThompson. “Back in the 1950s, we hadone person sitting there as justice of thepeace, and she still brought in the practicesof the culture, but the manner wasstill very mirrored to the European. Itwasn’t until the 1990s when we decidedthat we didn’t have to practice what theypractice, because we are our own people.That’s the time we put our foot downand said, ‘No, we are going to adopt ourtraditional ways—getting everyone together.’”Continued Thompson, “I’mof the Wolf Clan, and if I did somethingthat would violate the principle of theGreat Law [the Kaianerekowa], my clanwould come to me and tell me to get backon the right path. It’s those principlesthat we modified to use within the Neh-Kanikonriio Council.”Thompson talked about facilitatinga hearing for “a hard-core personin leather jeans and jacket, didn’t giverespect for anybody, had a lengthy record.He was advised by his lawyer togive this a try. [His charge was] assaultwith a weapon. We thought, How are weever going to get through to this guy? Webrought him in, treated him with respect,© 2004 INTERNATIONAL INSTITUTE FOR RESTORATIVE PRACTICES 23⁄4

Restorative PracticesE FORUMMay 26 2004www.restorativepractices.orgreached there, my mother being one ofthe younger children, they cried andcried because they didn’t know what theywere being sent there for and why, andthe nuns and priests that were runningthis place said, ‘Oh, be quiet. You weresent here and you’re going to stay here.Your parents don’t want you no more.Your parents are dead. Your parents arenothing but drunks, and you don’t wantto be Native people like them—dumb,stupid and drunk. You’re going to stayhere with us and get an education.’“The majority of the time you werein a slave camp. You had to grow crops,tend to animals, run an industrial producecenter, and maybe once a week theygave them lessons in school. People diedthere without proper medical attention;people were raped and sexually abused,and they were punished for speaking theirlanguage. People tried to run away andgot caught and were punished or diedfrom exposure.“Some of the survivors have blockedout these traumatic events. And whenthey blocked it out, they also blockedout their culture and their language.”Victims of the schools come to ask herfor help, said Thompson. “A gentleman70 years old told me that he was sexuallyabused in residential school when hewas seven. I’ve had three or four peoplecome to me like that. With one of theseindividuals—I tracked his record—he wasconvicted of a sexual abuse offense himself.He learned it.”The Akwesasne have many rehabilitativeservices, including the Men’s WellnessProgram, which includes culturally-basedmen’s wellness camps. “Fora long time we only had programs thatdealt with assistance to women and theirneeds,” said Thompson. “We recentlyfound that we were neglecting our men.They need counseling on how to be betterhusbands and fathers, or mental healthcounseling. Sometimes they need protectionfrom their wivesin physical abuse.”Akwesasne healthand social-servicefacilities address thecommunity’s physical,emotional and socialneeds and providewelfare and drugand-alcoholservicesfor both adults andyouth, including aresidence for youthwho are having problemsat home. ConcludedThompson,“You seldom need togo off our territoryfor services.”Another First Nationcommunity, the Mnjikaning, locatedin Ontario, has developed a communityhealing model and restorative justiceprogram. Biidaaban (Ojibwe or Anishinaabefor “new beginning” or “newday”) works with individuals who havecommitted wrongdoing or been hurt bywrongdoing. Biidaaban coordinator LeanneDouglas said that they try to avoid theterms “offender” and “victim” so as not tolabel people, but rather address their behavior.“Bii means the future, daa meansthe present and ban means the past. We’reincorporating all of that: looking at thepast, living in the present and lookingtowards the future,” said Douglas.The goal of Biidaaban is for peoplewho have harmed to take responsibilityfor the harm they have caused, beaccountable to the community and topeople they have hurt, publicly apologizeand make amends and restitution. Workingwith people who have been harmedinvolves trying to help them through theprocess, validating their experience andhaving them be a part of the process ofcoming together with the person whohas caused the harm. “We work withMnjikaning First Nation Social Services StaffBack Row, left to right: Stephanie Sandy,Lorraine McRae, Leanne Douglas, Byron StilesFront Row: Christine Douglas and Susan Lahaytheir families and ultimately the wholecommunity,” said Douglas.Biidaaban serves both adults andyouth. Other Mnjikaning social servicesprograms, all of which work closely withBiidaaban, include addictions and welfareprograms and a child welfare programthat works with the Children’s AidSociety in the town of Orillia.The principal problems in the communityare addiction and domesticviolence stemming from addiction, saidDouglas. Biidaaban handles cases concerningsuch matters as assault, domesticviolence, breaking and entering, sexualabuse, armed robbery and impaireddriving, most of which involve the courtsystem.“We look at alternative sentencing,such as stays of charges, diversions, conditionaldischarges, reduced sentencingor mitigation if they’ve done really well inthe program but it’s been a very seriouscrime,” said Douglas. “We may meet aperson in court and tell them about ourprogram; we may have referral by police,by family members, by the individualthemselves.© 2004 INTERNATIONAL INSTITUTE FOR RESTORATIVE PRACTICES 43⁄4

Restorative PracticesE FORUM“In the work with the court systemwe’ve developed an informal protocol,although we’re working on a formal one,where we ask for an adjournment of fourmonths, and we present an interim treatmentplan at that time. It’s a time for usto assess whether the person is actuallycommitted to a healing process and forthe person to see if this is the path theywant to take. The interim treatment planinvolves assessment, therapy and counselingand is unique to each person.”The healing process consists of teamcounseling with the individuals thatare involved—those that have harmedand been harmed—in preparation for acircle that includes family and the widercommunity. Individuals invite their supportersto the circle, but anyone in thecommunity who wants to participate canattend. “We send a flier to every home inthe community,” said Christine Douglas,clinical manager for Mnjikaning Communityand Family Services, of whichBiidaaban is a component. (Christineand Leanne Douglas are not related; theirhusbands are distant cousins.) Attendanceat circles is generally 20 to 25 people.At the community gathering, everyoneintroduces themselves and sayswhy they’re there. Next, the people whocommitted the wrong talk about what theydid and take responsibility for it. Theneveryone has a chance to talk about whatthe impact of the wrongdoing has beenon them. The person then apologizesand everyone talks about what needs to bedone to make things right and to restoreharmony and balance. A communityhealing plan is developed and a contractis signed by the person who has harmedand the Biidaaban team. The gatheringends with a ceremony. Regular meetingsbetween the Biidaaban team and thosewho were involved monitor whether thecontract is being fulfilled. A ceremonialcelebration follows successful completionof the Biidaaban process.May 26 2004“When you go to the courtsystem, people in thecommunity really don’t knowwhat’s going on there. Butwhen it’s public and in thecommunity then everybodyknows and it can act like acommunity watch program.”—Leanne DouglasOut of over 80 people who have participatedin the process, only four havereoffended and only one has committedthe same crime: an assault. The otherthree were recharged with breaches ofprobation due to drinking. “It’s a lotbetter than what the justice system’s statisticsare,” said Leanne Douglas. “Whenyou go to the court system, people in thecommunity really don’t know what’s goingon there. But when it’s public and inthe community then everybody knows andit can act like a community watch program.So people know that people arewatching them and that they need to behaveproperly.” Said Christine Douglas,“Our probation officer said that whenshe first started to come here, close to thebeginning of this program, she had 26probationers. Today she has six.”The court system has received theprogram very well. “We’ve developed awonderful working relationship over thelast several years,” said Leanne Douglas.“It was very difficult at first. It took alot of education and discussions aboutwhat we were doing, and probably inthe beginning they were very reluctant,but I think we’ve proven our credibilityto them. We’ve had cases where peoplehaven’t done very well and we’ve turnedthem back to the court system. I thinkdoing that has boosted our credibility,www.restorativepractices.orgbecause they know that we’re not goingto say that people are doing well if they’rereally not. But we always have to do ongoingeducation, because every year a newCrown Attorney [government prosecutor]is appointed.”It took several years to develop theBiidaaban model, said Stephanie Sandy,Mnjikaning First Nation social servicesworker. First, a core group of communitymembers researched their people’s history,then received restorative justice trainingfrom Dr. Ed Connors, a psychologistof Mohawk and Irish descent. They alsovisited Hollow Water, Manitoba, Canada,which had successfully used healing circlesto cope with a legacy of child sexual abuseand alcohol addiction. The Mnjikaningdecided to base Biidaaban on HollowWater’s healing model. (To read aboutthe Hollow Water Community HolisticCircle Healing Project, in a paper by oneof its initiators, Berma Bushie, pleasego to: http://www.iirp.org/library/vt/vt_bushie.html.)The core of the Biidaaban model is thesame as Hollow Water’s, said ChristineDouglas, but they adapted it. HollowWater is a small, isolated community innorthern Manitoba, while Mnjikaning,she said, is “very much part of southernOntario, which is a very populatedarea.”Since 1996, Mnjikaning has been thesite of Casino Rama, one of the biggestcasinos in Canada, and the largest employerof Native people in the countryin a single venue. With 12,000 peoplefrequenting it daily, the casino has completelytransformed the community.“Our unemployment rate before thecasino was 65 percent and that was aftera lot of hard work to get it down to 65percent. Now it’s about 10 percent,” saidChristine Douglas. A land lease and directpayments from the casino provide forinfrastructure such as water and waste watertreatment and police and fire fighting© 2004 INTERNATIONAL INSTITUTE FOR RESTORATIVE PRACTICES 53⁄4

Restorative PracticesE FORUMservices. On the other hand, gambling hasdefinitely become a problem. The casinoprovides funds for a gambling addictionprogram within the community.Gambling addiction gave rise to asentencing circle attended by over 75community members. Two Mnjikaningcommunity employees were chargedwith the theft of over $100,000 ofthe community’s money, stolen due togambling addiction. Leanne Douglas saidshe felt it was an ideal case for the communityto resolve, instead of an outsidesystem, “because the community was thevictim; it was their money.” It took alot of work and negotiation, she said.“We had excellent lawyers who helpedus in this process of actually having itcome into our community, and we hada judge who was Native, so she came herewith the court clerks; it was all set up andrecorded. We had the Crown Attorneyand their lawyers.”Community members were glad to haveinput into the process and felt that healingresulted. As for the people who hadcommitted the theft, said Douglas, “It wasvery difficult for them. I think they werefrightened about facing the community,but they did have their family supportthere. They took responsibility for whatthey did and apologized, but definitely itwas a frightening experience—a lot morefrightening than standing in court andnot having to say anything.”The judge took recommendationsfrom the community to determine thesentence, which did not include jail time.“But it was actually probably a toughersentence than what they would have gottenin a court system,” said Douglas.“They’re required to pay back all of themoney, which is probably a life sentencein itself. They were under house arrestand had three years of probation andcommunity service hours.” They alsoreceived psychotherapy and attended aproblem-gambling program.May 26 2004The Ojibwe medicine wheel, asdepicted in the brochure forBiidaaban, the MnjikaningCommunity Healing ModelChristine Douglas recalled a communityhealing circle, held for a 10-year-oldboy who had fired a pellet gun and hitthe back window of a taxi going past hishouse. The driver called the police andthey found the child. It was suggestedthat he attend a community gathering.The cab driver wasn’t able to attend, butthe taxi’s owner came. Said Douglas, “Hetalked about how terrified the taxi driverhad been when it had happened becausehe thought that he was going to be killed;he didn’t know it was just a pellet gun.He talked about the fact that now thecab driver might be afraid to come tothe community. And this child’s motherrelied on cabs because she had no car. Sohe was really able to see the impact of hisbehavior. His family was there, and wealso were able to talk about all of the goodthings that this child is doing. It workedreally well even though the child wasonly 10 years old. And nothing would’vehappened otherwise, because he was tooyoung to charge.”Asked if they felt that the Biidaabanprocess derives from traditional Aboriginaljustice practice, Leanne Douglas saidshe thought it did, “because people tookwww.restorativepractices.orgresponsibility for their behavior and itwas the community that tried to set themon the right path. If somebody was actingout and not behaving properly, it meantthat they were out of balance and that theyneeded to be brought back into balance.When we talk about balance and harmonywithin the community I think it comesfrom that.” Added Christine Douglas,“It’s a consensus model and I think that’svery much an Ojibwe model.”About the tie between justice andspirituality, Leanne Douglas said, “Weincorporate spirituality in everythingwe do—in our gatherings, in the workwith individuals. It’s a part of ourteachings—using the medicine wheel [aNative symbol used in healing and otherceremonies] to help the people we workwith understand about their whole self.We look at their spirit, their heart, themind and the body, trying to keep that inbalance and having them understand thatthey need to work in those four areas.”All healing circles open with a spiritualobservance. “If you’re a traditional personwe open with a smudge [a spiritualpurification using smoke from a burningbundle of sage or other sacred herbs] anda prayer; if you’re Catholic or Pentecostalor whatever it may be, we do an openingthat’s right for those people. There’sno discrimination about beliefs,” saidDouglas.Asked how the community has acceptedBiidaaban, Christine Douglas said thatpeople in trouble are interested in beingpart of the program, “because, atleast initially, they see it as a ‘Get Outof Jail Free’ card [as in the board gameMonopoly]. Then they come to realizethat it actually might have been easier togo to jail.”Unfortunately, said Douglas, sometimesthe community also sees the programas an easy way out, because theydon’t really know what it’s about. Fewpeople take part in the program unless© 2004 INTERNATIONAL INSTITUTE FOR RESTORATIVE PRACTICES 63⁄4

Restorative PracticesE FORUMthe situation involves someone closeto them, she explained. She hopes thatcontinuing to educate the communitywill change this. They would like to getmore volunteers involved, especially inthe gatherings.Plans are in process to form a youthjustice circle. “We’re going to personallyinvite some people to be a part ofthat,” said Douglas. “Hopefully whenthey see what we’re doing in the youthjustice circle they’ll be able to understandbetter what we’re doing with the adults.”Added Leanne Douglas, “We’re going totry to get a cross-section of our communityto be a part of that, and they can talkto their family about it, and it can filterdown a little bit.” The ultimate goal ofBiidaaban, she said is “to have a healthy,safe community, to repair relationships,help people be in balance and be healthyin faith and happy.”Many articles on First Nation and NativeAmerican justice can be found in theIIRP online library, including:“Sentencing Circles for AboriginalOffenders in Canada: Furthering theIdea of Aboriginal Justice Within aWestern Justice Framework,” by MelaniSpiteri. http://www.iirp.org/library/mn02/mn02_spiteri.html.“Restorative Practices Seen by theCourt,” by the Honorable Judge Jean-L. Dutil. http://www.iirp.org/library/t2000/t2000_jdutil.html.“Circle Sentencing: Part of the RestorativeJustice Continuum,” by theHonorable Judge Heino Lilles. http://www.iirp.org/library/mn02/mn02_lilles.html.“Aboriginal People and Justice Issues,”by the Honorable Judge MurraySinclair. http://www.iirp.org/library/t2000/t2000_msinclair.html.The Restorative Practices eForum willfeature other First Nation, Native Americanand indigenous justice practices inthe future.May 26 2004www.restorativepractices.org© 2004 INTERNATIONAL INSTITUTE FOR RESTORATIVE PRACTICES 73⁄4