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South Australia: Nunga Court II – Aboriginal Sentencing Conferences

The Nunga Court of South Australia was established in 1999 to provide a culturally relevant sentencing option for Aboriginal offenders. 2005 legislation legitimizing the Nunga court required that victims be given the opportunity to participate in addition to the offender, elders, and community members. In response, the regional court in Port Lincoln is piloting an Aboriginal Sentencing Court incorporating elements of the Nunga Court model and restorative conferencing and sentencing circles from Canada. This article summarizes a paper by Dr. Andrew Cannon, Deputy Chief Magistrate and Senior Warden for South Australia, describing the new Aboriginal Sentencing Conferences. A link to the full paper is below.

Incorporating Custom Law into State Law in Melanesia1

In this article, Pat Howley describes the revival of custom law in Bougainville and its importance in building peace.

Connolly, Marie. A Perspective on the Origins of Family Group Conferencing

It is widely acknowledged that family group conferencing originated in Aotearoa New Zealand with the introduction of the Children, Young Persons and Their Families Act 1989 and its creation of the family group conference. However, says Marie Connolly, what gave rise and shape to this development is a far more complex question. It is that question she explores in this paper. Toward that end, she looks at cultural issues at the heart of practice changes in Aotearoa New Zealand. Specifically, she discusses the place of the child in Maori society and the child’s relationship to familial kinship structures in Maori culture, and the ways in which New Zealand child welfare legislation and policy before the 1989 Act misunderstood or ignored that place and that relationship.

Chiago Lujan, Carol and Adams, Gordon. U.S. Colonization of Indian Justice Systems: A Brief History

As Carol Chiago Lujan and Gordon Adams observe, long before Europeans arrived in the Americas, Indian nations functioned under their respective principles and forms of sovereignty, including what now would be called systems of criminal justice. When Europeans came and encountered those nations, they sought to impose their sovereignty and systems and quash Indian sovereignty and systems. The effects on Indian nations have been harmful to devastating, but Indians have continued to try to maintain control of their lives and destinies. Against this background, Lujan and Adams examine United States colonialism (the term Native scholars use to describe the U.S. governmentxe2x80x99s relationship to Indian nations) and its effects on Indian nations, particularly with respect to their justice systems. Lujan and Adams look at the process whereby U.S. laws and statutes eroded the sovereignty of tribal justice systems; some early cases and more recent laws and legislation; the impact of early federal policies and legislation on Indian nations; and the growing trend for tribal governments to return to a more culturally appropriate justice system.

Miller, Bruce G. Justice, Law, and the Lens of Culture

Until recently, according to Bruce Miller, contemporary tribal courts and justice initiatives undertaken by indigenous communities in the United States and Canada have only infrequently been examined through an ethnographic and historical lens. Studies by criminologists and legal scholars have predominated. Inadvertently, those studies have generally deflected attention from difficulties facing indigenous people in recovering localized legal practices and determining how they will regulate their reservations. More ethnographic work is now being done with respect to these matters. This is important because indigenous communities in the United States and Canada are increasingly engaged in developing or transforming justice systems xe2x80x93 initiatives that are often undertaken with highly-conscious regard for cultural issues both within their communities and in relation to outside communities (i.e., Western systems in the U.S. and Canada). In this context, Miller argues that innovative, community-driven justice initiatives in indigenous communities must struggle against the impulse to misuse the idea of culture. By xe2x80x9cmisusexe2x80x9d of culture he refers to the tendency to fall into xe2x80x9cus-them,xe2x80x9d oppositional, compartmentalizing, and dichotomizing ways of thinking. He urges instead the development of new justice initiatives through a shared field of xe2x80x9cwe-you,xe2x80x9d inter-ethnic discourse and interaction based on a kind of complementarity.

Brown, Howard L. The Navajo Nation's Peacemaker Division: An Integrated, Community-based Dispute Resolution Forum

As Howard Brown writes, for hundreds of years the Navajo people have used a community-based dispute resolution ceremony to deal with conflicts. This ceremony brings together a variety of participants, with their respective wisdom, skills, and perspectives, to reach non-coercive settlements. The aim is to restore the disputants and the larger community to a state of harmony. Today the Navajo Peacemaker Division relies on this kind of customary method of dispute resolution. To explain the Peacemaker Division and its role in resolving disputes, Brown discusses two principal subjects: Navajo common or traditional law; and the Peacemaker Division and the traditional peacemaking ceremony known in Navajo as xe2x80x9chozhooji naatxe2x80x99aanii.xe2x80x9d

Eagle, Harley. Restorative Justice in Native Cultures

Harley Eagle is of Dakota and Saulteaux ancestry. He lives on the Pine Ridge Indian Reservation in South Dakota among his Oglala Lakota relatives. From this indigenous perspective, and from his experiences in community work on the reservation, he writes about restorative justice in native cultures. After rehearsing some of the history of conflict between native peoples and Euro-Americans in North America and its harmful effects on native peoples, he states that it is necessary to keep in mind this historical context when practitioners engage in restorative justice work within indigenous communities. When dealing with present conflicts between people and in communities on reservations, the historical context means the conflicts often actually have a long history of family disputes that have never been healed. People involved in the conflict have forgotten traditional values, customs, and practices for dealing with conflict. Restorative approaches tap can into traditional ways, encourage native peoples, and lead to constructive results for individuals, relationships, and communities on the reservations.

Endalew, Tsega. Luba Basa and Harma Hodha: Traditional Mechanisms of Conflict Resolution in Metekkel, Ethiopia

Metekkel, a vast low-lying territory on the Ethio-Sudanese frontier, is inhabited by the Gumuz, Shinasha, Oromo, Agew and Amhara who continued their interactions for their daily activities. Although they have their own respective traditional mechanisms of conflict resolutions they gradually adopted Oromo traditional institutions including the Luba Baasa, Harma Hodhaa and Micu. Luba Baasa (lit. to set free) and Harma Hodhaa (lit. Breast - suckling) are Oromoo names and are used by the Gumuz and Shinasha who also speak Oromoo. Luba Baasa is more of preventive mechanism and gradually establishes ethnic integration through adoption. The Harma Hodhaa (Harma hosisuu/hodhuu), however, establishes a kind of parent - child relationships between ethnic groups, individuals as well as within groups. The Gumuz or the Shinasha individual either representing his clan or family is supposed to suckle a breast or anointed thumb of the Oromo individual and becomes his xe2x80x98son.xe2x80x99 The whole group to which the individual belongs becomes xe2x80x98sonsxe2x80x99 to the xe2x80x98breast Father.xe2x80x99 xe2x80x98The xe2x80x98Fatherxe2x80x99 agrees to treat the xe2x80x98sonxe2x80x99 in the same way as his natural son (naturalization) and provide all the necessary material assistance. In Oromo society, some Oromo or non-Oromo groups are considered as xe2x80x98castesxe2x80x98 and despised until they are assimilatedxe2x80xa6. They have no peaceful interaction with each other and no mutual support in agricultural activities and so on. However, rural societies particularly agricultural communities need cooperation, and for each daily interactions and mutual coexistence they should, therefore, come into terms. These institutions are intra as well as inter ethnic conflict resolution principles and are widely applied in many parts of Ethiopia; and can even meet demands out side Africa. If refurbished, the findings show that, they can be of paramount importance to policy makers and practitioners. (excerpt)

Haslip, Susan. The (Re)Introduction of Restorative Justice in Kahnawake: "Beyond Indigenization"

The Canadian criminal ‘justice’ system has failed (and continues to fail), and justice has been denied to (and continues to be denied to), First Peoples and their descendants. Both the need for, and the right of, First Peoples in Canada to establish separate justice systems and, in particular, separate criminal justice systems reflective and respective of their cultural distinctiveness, has been identified in numerous reports. The Canadian government, however, continues to favour indigenizing the Canadian justice system. In this paper the author considers the (re)-introduction of ‘Skenn:en A’onsonton’, a contemporary restorative justice process based on traditional Rotinohshonni (people of the Longhouse) principles of conflict resolution, to the Kahnawake Community by the Kanien’keha (Mohawk) people and critically assesses its prospects for success.

Griffin, Iris A. The Practical Application of Traditional Aboriginal Healing Practices as A Restorative Justice Process: A Case Study of the Helen Betty Osborne Story

This qualitative case study explores the application of traditional Aboriginal healing practices as a restorative justice process using the Helen Betty osborne case as an example. Primary data are from interviews conducted with several key participants during November 1998 and January 1999, and from informal discussions between October 1997 and May 1999. The thesis focuses on how participants were affected by the restorative process and the potential for this process to be incorporated into the Canadian Correctional system.

Schweigert, Francis J.. Underlying principles: The spirituality of the circle

In exploring the nature and purpose of processes with participants arranged in a circle, Schweigert first points in general to the significance of the circle in human life. He then examines the particular significance of circles in Native American tradition and experience. The discussion touches on key aspects of Native American spirituality and on specific elements of circle processes in Native American cultures.

Laprairie, Carol. The "new" justice: Some implications for aboriginal communities

Some maintain that the "new" justice - restorative justice - actually implies a return to a type of reparative justice practiced in small, non-state societies. LaPrairie examines key elements in the perspectives that make up this new justice, with particulSome maintain that the "new" justice -- restorative justice -- actually implies a return to a type of reparative justice practiced in small, non-state societies. LaPrairie examines key elements in the perspectives that make up this new justice, with particulSome maintain that the “new� justice – restorative justice – actually implies a return to a type of reparative justice practiced in small, non-state societies. LaPrairie examines key elements in the per

Irani, George E and Nathan C. Funk.. "Rituals of reconciliation: Arab-Islamic perspectives."

Many in the Middle East view conflict resolution as a Western program, and therefore as an outside, imposed practice with little regard for the indigenous (i.e., Middle Eastern) context. Irani and Funk contend that Western policymakers, in efforts to build peace in the Middle East, should engage in dialogue and peace strategies that take into account indigenous rituals and processes of reconciliation. Hence, in this paper they deal with a number of key topics: the limitations of the applicability of Western approaches to conflict resolution in non-Western contexts; traditional Arab-Islamic approaches to conflict resolution; and, in particular, Middle Eastern rituals of settlement and reconciliation. Furthermore, they draw out implications for policymakers and practitioners in promoting peace efforts.

Blue, Arthur W and Blue, Meredith A. Rogers. The case for aboriginal justice and healing: the self perceived through a broken mirror

The Blues point out the disproportionately high percentage of First Nations’ people incarcerated in Canada. In response, they argue for the merits of aboriginal justice ideas and practices, especially aboriginal and not Euro-Canadian justice for aboriginal peoples. As the basis for their argument and for aboriginal justice, the authors discuss key elements of the worldview of First Nations’ peoples. This worldview emphasizes the holistic interrelatedness and interdependence of all parts of existence, such as the spiritual and the material, the animate and the “inanimate,� and animals and humans. Therefore, key ideas and values of living within this worldview include harmony, mutuality, relationship, and responsibility. Moreover, in this worldview, the individual human self achieves true humanness through development of an awareness of the self as “other� (as when a person looks in a mirror and sees the reflection of himself or herself), where the “mirror� or identity of that self comes from being embedded in his or her cultural tradition. The interaction of Euro-Canadian cultures with aboriginal cultures has led to severe and damaging identity crises for aboriginal people as groups and as individuals. With all of this in mind, the authors argue that aboriginal justice, based on a different worldview, is characterized more by restoration of harmony, mutuality, relationship, and responsibility, thereby promoting conflict resolution and healing. In contrast, Euro-Canadian justice is characterized more by punishment and retribution. The Blues then describe traditional practices that express and effect these realities and values: the sweat lodge; the vision quest; the pipe ceremony; and the sentencing circle (which is specifically related to aboriginal justice).

Brettin, C and Weeks, P and Shull, L. and Platts, S. and Paisano, F. and McCarthy, P and Laffin, M and Guilfoyle, M. Nez Perce Peacemaker Project: An Inter-Cultural Approach to Dispute Resolution

This paper describes the design and implementation of the Nez Perce Peacemaker Project, which enables the tribal court to refer cases to mediation. The goal of the Peacemaker Project is to establish a culturally appropriate way for tribal members and institutions to resolve disputes. Tribal members co-mediate disputes with the law students and have successfully mediated two disputes. Topic include an overview of the program, implementation stages, collaboration with tribal members to ensure that the project reflects Nez Perce cultural values, and a discussion of how resources from a number of organizations were leveraged to maintain the program.

Maxwell, Gabrielle. Restorative Justice: A Maori Perspective

This paper is a response to Belgrave (1995) and describes the historical and current Maori justice system. An option to strengthen the restorative process embedded in the Maori community is proposed. Issues regarding the adapting of past practices to principles of restorative justice are discussed from the Maori perspective. Recommendations for the essential elements of a new system based on restorative processes are listed. Includes descriptive overviews of indigenous justice models from North America and Australia. Specific warnings against mistakes of other alternative dispute resolution models are appended.

Laprairie, Carol. Aboriginal Criminal Justice in Canada

A special issue of the journal is devoted to Aboriginal crime and justice, primarily in Canada which use Braithwaite's (1989) "Crime, Shame and Reintegration" as an explanatory framework. Articles include customary law among aboriginal groups in British Columbia; crime control in 3 Ontario Nishnawbe-Aski Nation communities; dominant and dominated cultures of native villages in Alaska; the role of police on 25 reserves in Quebec; homicide trends among Aboriginals and other Canadians; Aboriginal female suicides in custody; the dimensions of "owning" crime and disorder in the east James Bay Cree communities of Quebec; the juvenile court system in 22 Manitoba communities; factors influencing native policing arrangements; critiques the theory of invention of tradition, with the People of the Longhouse of the Kahnawake Mohawk Nation; the issue of community participation in socio-legal control within the Inuit of the Northwest Territories; and the characteristics of Aboriginal recidivist. Lastly, Scott Clark attempts to tie together the underlying themes of this special issue.

Laprairie, Carol. Altering Course: New Directions in Criminal Justice: Sentencing Circles and Family Group Conferences

This paper explores two new approaches in criminal justice which have important implications for indigenous and aboriginal communities, sentencing circles in Canada and family group conferences in Australia. Processes and principles involved in sentencing circles and family group conferences are described, and the effectiveness of each restorative justice approach is assessed and compared. The author concludes that sentencing circles and family group conferences will have to prove themselves before declaring success in redressing concerns with the mainstream criminal justice system upon which restorative justice is based.

Bargen, J. Critical View of Conferencing

A critique of two new criminal justice initiatives, sentencing circles in Canada and family group conferences in Australia, is presented. Sentencing circles in Canada involve a process whereby community members recommend the sentence in cases involving other members of the same community. Family group conferences in Australia allow persons directly affected by crime to actively participate in dealing with the consequences of crime. Both collective and individual accountability for offending behavior. Both initiatives are evaluated in terms of their implications for aboriginal and indigenous communities.

Hazlehurst, K and Dunn, A. T. Aboriginal Criminal Justice

Aboriginals are overrepresented at every level of the Australian justice system. Compared to non-Aboriginals, they were more frequently convicted of person offenses and less frequently convicted of property offenses. Researchers and administrators have examined factors contributing to high Aboriginal incarceration rates. State and territorial Governments have been urged to address the situation by upgrading legal and rehabilitative services, examine areas in which justice may fail to be impartial, and develop community justice options such as dispute resolution and community service orders. In addition, efforts are needed to enhance the quality of Aboriginal life, re-empower Aboriginals, and aboriginalize criminal justice administrations.