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There are many
definitions of work and the processes that go into it. This is
a part of the first chapter of the Rupert Ross book that I quoted yesterday on
language. I would encourage any of you in Canada to seek out
this book since it is available there. It is not yet available
her in the US so I am excerpting it for you and will do the same for my
community since it helps to give strength to the traditional values that are
under such attack by the dominant culture. Especially here in
New York City the most diverse city in the world and the one with the most
cultural locks on such things as health care and education. It is
very difficult to do many of the things that smaller communitees in Canada and
elsewhere are able to simply because of the sheer size of the
place. Imagine a city the size of Tulsa, Oklahoma in a forty
block area on the Upper West Side of Central Park. Anyway,
this is another view of legal, healthcare and educational
work. As an Indian and a Western Artist I know that most of
these things are found elsewhere but in different
configurations. It is often the difference in accent
that makes the message both unclear and totally different. I
hope that you will find this interesting and even talk about it a little.
Ray Evans
Harrell
RETURNING TO THE
TEACHINGS, EXPLORING ABORIGINAL JUSTICE, by RUPERT
ROSS Penquin Books 1996
The Movement Towards
Teaching and Healing
That paragraph came from a justice proposal prepared in 1989 by the Sandy Lake First Nation, a remote Oji-Cree community in northwestern Ontario. I quoted it towards the end of my first book, Dancing with a Ghost. In the three and a half years since its publication, 1 have heard almost identical statements in Aboriginal communities from one coast to the other. I remember, for instance, meeting with a chief, his young council and some elders at a remote Cree First Nation in northwestern Ontario. At one point I asked what the community used to do in traditional times, before the courts came, to those who misbehaved. An old lady (and I adopt that phrase as a term of respect common with Aboriginal people) answered immediately. Through the interpreter she said, "We didn't do anything to them. We counselled them instead!" Her emphatic Cree suggested that she couldn't understand why I would ask such a question. At the same time, the hand-covered grins of the councilors told me that they had regularly felt the power of her certainty about the wisdom of the old ways. For the longest time, I didn't fully believe pronouncements like that. I suspected that people were giving me romanticized versions of traditional justice, with all of the punishments removed to make things look rosier than they really were. The more I looked, however, the more I saw how widespread this preference towards teaching and healing-and away from punishment really was. It wasn't until a few years ago, however, in a remote, fly-in Cree community of five hundred people that I understood on an emotional level how deep the commitment to teaching and healing really was. It is a story that will take a while to tell, but it is important that the full setting he understood. The Three Cree Women As the Crown Attorney, I had flown into the
community several days before court for what we called our "Advance Day." With
me was another lawyer, the Duty Counsel, whose job was to act as a public
defender of sorts. Together, we were to prepare for the court day by
interviewing witnesses and examining how accurate and necessary the charges
were. In the majority of cases, such advance work weeds out improper charges,
reduces the need for trials and helps all parties come up with sentencing
proposals for the judge that seem most realistic in the circumstances.
The community's solitary policeman met us at the gravel airstrip, then drove us into the community over snow-packed roads. The temperature was about -30°C, it was still and sunny, and woodsmoke rose straight up from the hundred or so chimneys of the village. We dropped the Duty Counsel off at the Band Office and carried on to the policeman's office. It was a tiny, plywood-floored hut with a woodstove, a metal desk, a single filing cabinet, a one-bunk holding cell and an outhouse. He had put a fire in the woodstove some hours earlier, so I no longer had to wear my mitts. I unzipped my parka but kept it on. As he filled me in on the dozen or so cases
on the court list, I began to breathe a small sigh of relieŁ None of them looked
serious enough that I would feel obliged to ask the court to impose a jail term.
That meant that we were unlikely to have any contested trials, for nothing
inspires pleas of "Not Guilty" like the news that the Crown is
looking for jail. We quickly settled into some small talk, chatting about things
like problems in the community, the extent of the drinking, what kind of hockey
team was being assembled for the upcoming tournament down in Sioux Lookout,
whether the kids here were sniffing gasoline, and so forth. It was at that
point, almost casually, that he mentioned that the community had formed a
"Police Committee" of six men and six women, and that they had been working with
each of the people charged, as well as their families. In fact, he told me, they
had prepared detailed recommendations for all the cases and would appear at
court to ask the judge if they could speak. When I asked what kinds of
recommendations to expect, he answered something like "Oh, just probation and
counselling, that kind of stuff "
A few days later, we returned to the community for the actual court. There is something about northern courts they
neglected to tell us in law school: one of the more important jobs of the Crown
Attorney involves getting to the local school, hall, gymnasium, church, office
or other makeshift courthouse as early as possible, then locating and setting up
just the right number of trestle tables and stacking chairs to accommodate the
likely turnout. That was how I began that court day, for the police
officer was out at the airstrip waiting for Judge Fraser's plane. Both of
our local judges, Don Fraser and Judyth Little of the Ontario Court
(Provincial Division), prefer putting those tables in a "circle" shape, hoping
that this will reduce the adversarial nature of the process. Instead of having
the accused and his lawyer sit directly opposite the Crown and the police like
boxers on opposite sides of the ring, they are spread around the circle together
with probation officers, translators, alcohol workers and anyone else who
might have a contribu- tion to make. My own impression is that such an
arrangement does make people feel more comfortable and also contributes to a
fuller community participation. Perhaps people feel better joining as equals a
group discussion aimed at finding solutions than they do making formal and
solitary suggestions to an a1l- powerful judge.
As time passed that morning, people filed into the gymnasium and milled about, helping themselves to coffee provided by the band. The Duty Counsel was scurrying about doing last-minute checks with various people. When the police officer returned with Judge Fraser, his court clerk and reporter, they took their seats and the court was opened. I advised him of the existence of the Police
Committee, and he invited them to come forward. Instead of twelve people, as I
had expected, three women emerged from the group at the back of the room. Judge
Fraser gave them seats just to his right, directly opposite me. One of them
looked to be in her sixties or seventies, another in her forties and the third
in her twenties.
I should have said that there were four of them, because they had brought an infant along, snugly wrapped in its tikinagan, or cradle board. They laid the tikinagan flat on the trestle table in front of them, where all three could watch, touch, feed, coo and tickle. The baby stayed there through the entire court, causing no commotion at all. I should mention that in northern courts Judges Fraser and Little not only tolerate but welcome such additions. While we've never really talked about it, I suspect that they too see it as a reminder of something Aboriginal communities always stress whenever we come into them: that we are all assembled to help make life better for the next generation. Having some of that generation actually present often proves to be a valuable reminder when we stand to get caught up in our self-important roles! One of the cases on the list, the one that makes me
remember that day, concerned a man who had assaulted his wife. It was not, in
strictly physical terms, a serious assault, for it involved "only" a couple of
slaps. There had been no bruising or other injury. The police officer expressed
his concern, however, that violence might have been used before and might be
escalating. The court shared his concern, for the accepted wisdom in urban
Canada is that by the time a woman reports an assault by her partner, it's the
thirty-fifth time, on average, that he's done it to her.
The charge of assault was read out. The husband, a man in his twenties, entered his guilty plea. Because of that, I was permitted to "read in" a short summary of the events, instead of making witnesses give evidence themselves. It sounded like so many other summaries I had read in over the years: he had been drinking that evening, an argument had developed over some minor matter and he had slapped her twice. She had taken their two small children to her family's house overnight, returning in the morning after he had sobered up. End of story. In normal circumstances, this would have been followed by a short lecture on using violence, a sentence imposing a fine or community service work and a Probation Order requiring (1 can hear the chant so clearly!} that for six months the accused must "keep the peace and be of good behaviour and abstain absolutely from the consumption of alcohol or attending at premises where alcohol is sold or dispensed. That means no house parties either. If anyone starts drinking, you leave. Do you understand?" Except that in this case the Police Committee had their own ideas. They were put before the judge by the Duty Counsel, and they were far more complex than I was expecting them to be. As the first stage of their proposal, they suggested that the offender go out of the community to attend a thirty-day alcohol treatment program in the distant urban centre of Thunder Bay. It was their understanding, however, that the drinking was just a surface problem that could not be solved on its own. If the reasons for the drinking were not looked at and dealt with, it would continue-course or no course. We were told that certain things had happened to the man as a boy, things he had never talked about until now. They didn't give us any more details, except to say that the elders were once again coming forward to help the young people learn what they needed to know to "live a good life" and that the young man was beginning to open up to them. Next, they recognized that there was a serious lack of communication between husband and wife. They felt that both of them were carrying burdens alone, and that neither had really understood what was going on with the other. For that reason, they recommended that they both go the following week to a neighbouring community to attend a three-day series of work- shops being held on family violence and family communication. Further, when those workshops were repeated a week later in their home community, they had to attend then as well. In that way, perhaps they could begin to break down the silences that had come between them. At that point, I felt I was hearing one of the most thorough assessments possible. They were not, however, finished. They told us that the children still had to be considered. Those children had seen the violence at home and were confused by it. The committee felt that if the children were not involved in understanding things, talking about them and helping to turn them around, they would grow up to repeat their father's behaviour themselves. The last recommendation therefore involved having the whole family attend a month- long family healing program available at another neighbouring community, once all the other steps had been carried through. After the Duty Counsel finished summarizing the plan and explaining that the offender would be a willing participant, Judge Fraser turned to the three women. He asked them if they wished to speak to the court themselves, instead of through the Duty Counsel. As I recall, it was the woman in her forties who spoke to us, in Cree. The transcript records the interpreter as saying the following (with the real name of the offender removed by me):
Judge Fraser included all their recommendations in the Probation Order. He also reminded the offender that it wasn't just the promises in the Probation Order that were important, but the fact that he had made the promises to his own community and to the Police Committee, which was trying to help him. The offender nodded that he understood. At the end of the day, when all the cases had been heard, something else happened. The three women turned to Judge Fraser and, through the interpreter, thanked him for giving them the chance to giye their thoughts to the court. Judge Fraser seemed to be as moved as I was, not only by the depth of their concern and the thoroughness of their analysis throughout the day, but by the fact that they should be extending their thanks to him at the end of it. As best I recall, he replied that he should be thanking them instead. He also said something to the effect that, in his view, their approaches to problems in their community could help show the way to the rest of Canada. A number of things struck me at the time. One was the fact of that "thank you." I know that
very formal expressions of appreciation before and after speaking are common,
for respect must always be shown to other people, whether a consensus has been
reached or substantial issues remain unresolved. In my view, however, there was
something else at work that day, an extra emphasis in that "thank you," as if it
had been a special privilege to be able to give the commu- nity's perspective to
the court. That, in turn, made me wonder how excluded they must have felt from
the court up to that day. When they thanked Judge Fraser for "giving" them the
opportunity to speak, I wondered once again what it must be like to suspect,
from past dealings, that the outsiders who possess all the power don't really
want to hear a single thing you have to say. For how many decades had they been
hearing that kind of a message, and in how many ways?
In the face of that history, I once again marvelled at the immense respect they continued to show us as we kept flying in to do "our" business with them, using only "our" ways, then flying back out the very same day. There is one remote community in northwestern Ontario that prepares a feast for the court party each court day, with pots of wild rice, bannock, fish and game stew carried into the schoolhouse where we hold court. Those feasts take place despite the fact that, a s I hope to demonstrate in the pages that follow, almost every aspect of our Western approach to justice breaks traditional Aboriginal law. But it was not just their continuing respect for us that struck me that day. I was also inspired by the thoroughness and sophistication of their analysis. There were no Western Ph.D.'s in that group, but their knowledge of the ways in which dysfunctions--or "disharmonies"-spread and multiply within families and from generation to generation could have stood up against the best material I have seen come out of Canadian universities. That day, when I compared the sophistication of their recommendations to our usual courtroom response of "probation, abstention from alcohol, and fine or community service work," I felt just the way Judge Fraser did-that we should be thanking them instead. I was also struck by the fact that punishment did
not even seem to be an option that day, even amongst the women on that Police
Committee-despite the fact that the victim was a woman and family violence
seemed to be a major concern in the community. Why were they not saying the
kinds of angry things I was used to hearing from the victims of family vio-
lence elsewhere in Canada? Their position reminded me of the old Cree lady who
was so perplexed when I asked what they'd "done to" people who'd misbehaved in
traditional times. The approach they seemed to take went beyond a belief that
pun- ishment wasn't necessary in that particular case, for punishment simply
didn't seem to be an option in the first place.
Listening to how they approached the problem was a turning point of sorts for me. I had been hearing Aboriginal people talk about "justice-as-healing" a great deal, but I still had some doubts about how deep-rooted that approach really was. It almost seemed as if everyone had attended the same lecture somewhere and had decided to dress themselves up in the same philosophical clothes, just to look superior to the Western system. What I saw from those three women in that tiny Cree community ended my doubts about such things. What they offered was not an imported response designed to support some romantic reinvention of traditional approaches. Instead, as I felt it then and know it now, it came from the hearts of all of them and from the accumulated understandings of centuries. I acknowledge that I shared the scepticism of many observers about how "traditional" such healing approaches really are. I have found, however, that my scepticism just couldn't survive the eyes and voices of so many old people, men and women alike, speaking only their own ancient languages, all looking dumbfounded (or outraged!) at my suggestion that punishment might be used to make things better. Nor could it withstand sitting in the sexual abuse healing circles at Hollow Water, an Ojibway community east of Lake Winnipeg, where the ancient teachings of the medicine wheel come to life to move victims and offenders forward out of their hurt and anger. As a result, my scepticism has gone into a complete meltdown, I now see teaching and healing as cornerstones of traditional Aboriginal thought. In saying that, I want to be careful about a number
of things.
First, what I have said does not mean that
traditional responses to dangerous individuals were so generous in every case.
Community welfare had to come first, and if a particular individual resisted (or
was beyond) community efforts aimed at healing, then banishment to the
wilderness was a viable, if regretted, option. I have never heard an Aboriginal
community say that healing can work with everyone; what I have heard, however,
is that it is short-sighted to offer healing to no one at all and to rely
entirely on deterrence and jail instead.
Second, what I have said does not mean that traditional responses to dangerous individuals cannot contain elements of pain. As I will later explore, some teaching is indeed painful, and some healing is much more painful than simply hiding &om the truth in a jail cell. I am saying instead that imposing pain for its own sake, stricdy as punishment, unaccompanied by efforts to move people forward out of their problems, seldom seems to be an option. An eye-for-an-eye approach, I am told, leads only to the blindness of all (a phrase which suggests an alternate explanation for why the Statue of Justice is blindfolded as she holds up her scales!). Third, I don't mean to suggest that healing is the central goal of every Aboriginal community 0r even the numerical majority-at this particular point in history. A great many focus on punishment instead, and some propose punishments that are more severe than those of the Western courts. Many traditional people suggest, however, that such perspectives are simply the inevitable result of generations of imposed Western approaches, including the use of corporal punishment in resi- dential schools. They point, for instance, to the fact that the Navajo are now moving away from their once-famous Western-based tribal courts and reinvigorating traditional peacemaking processes instead. Colonization strategies, they say, have touched everything, including dispute resolution, and are making it difficult for many communities to break free of punitive approaches and re-root themselves in restorative approaches instead. Fourth, I don't mean to suggest that all Aboriginal
leaders who now speak the language of healing are doing so out of an honest
commitment to the betterment of their communities. Sadly, there are many
dysfunctional communities where the groups in power promote "traditional healing
programs" for one reason only: to prevent their abusive friends from being truly
called to account in anyones justice system, Western or Aboriginal. Jt is not
the teachings themselves that are respon- sible for such abuse; it is their
misuse by desperate people in desperately ill communities.
After my experiences of the last several years, I now hold the view that there is one best way for communities to deal with the problems that show up as charges in criminal courts: the traditional teachings need to be brought back to prominence once again, rather than being discounted as inadequate relics of a simpler past. In a number of communities, this has already been done: the teachings have been brought forward into full twentieth-century flower by good people determined to replace silence and suffering with honesty, hope and health. So I offer my own conclusion: the three Cree women
were not a fluke or an oddity, or a special case. Instead, they spoke from an
ancient conviction shared by a great many Aboriginal peoples, a conviction that
the best way to respond to the inevitable ups and downs of life, whether defined
as "criminal" or not, is not by punishing solitary offenders. The focus must be
shifted instead towards the teaching and healing of all the parties involved,
with an eye on the past to understand how things have come to be, and an eye on
the future to design measures that show the greatest promise of making it
healthier for all concerned.
The past three years have shown me this preference
is not unique to the Cree and Ojibway of my small part of the globe. To close
this chapter, I'll take you on a short tour of some other places where
Aboriginal people are bringing traditional healing and teaching back to centre
stage again, including stops in the Yukon, New Zealand and Arizona/New Mexico,
before returning to the Ojibway First Nation of Hollow Water in Manitoba. I have
selected them primarily because I have met and learned from people involved in
them, and because I sense a similarity in philosophy which is all the more
striking, given their geographical separation. First stop, the
Yukon. (To be continued)
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- Re: [Futurework] Rupert Ross continued: Ray Evans Harrell
