The Justice System and Aboriginal People

The Aboriginal Justice Implementation Commission

   

Chapter 7

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ABORIGINAL JUSTICE SYSTEMS

Introduction
The Argument for Aboriginal Justice Systems

Taking Control
Social Cohesion
Our Recommendation

American Indian Tribal Courts

Historical Background
Public Law 280
Tribal Court Systems Today
Tribal Court Jurisdiction
The Indian Civil Rights Act of 1968
Tribal Court Administration
Conclusion

Relevant Australian and New Zealand Experience 298
Relevant Canadian Experience

The History of the Indian Act Court
The Current Regime
Jurisdiction
The Creation of New Courts under Section 107

Creating Aboriginal Justice Systems

The Legal Bases
Structure
A Regional Model
Jurisdiction
Court Facilities
Personnel
Resources

The Charter of Rights and Freedoms
Conclusion

 

Aboriginal Justice Systems TOP

With so much discrimination occurring against our people, it is often amazing how accepting we are of our situation. We know that without tolerance there can be no justice. Without understanding there can not be justice. Without equality there can be no justice. With justice we can begin to understand each other. With justice we can work and live with each other. With justice we can love and feel confident with each other. Aboriginal people want a judicial system that recognizes the native way of life, our own values and beliefs, and not the white man’s way of life.

Elijah Harpe
MLA Rupertsland

TOP

 

Introduction TOP

We are convinced that acts of racism have been directed at Aboriginal people by personnel employed within the administration of justice. Without, in any way, belittling the impact which such acts have upon the lives of their Aboriginal victims, we believe, however, that that is not the essence of the problem which Aboriginal people face.

There are many reasons for the problems that Aboriginal people have with the justice system. Repeatedly, for example, we were told that one major problem which contributed to Aboriginal over-representation in the justice system was the socio-economic conditions faced by Aboriginal people throughout the province. It is clear, in fact, that Aboriginal people are "the poorest of the poor" and that that fact contributes to the over-representation of Aboriginal people in our courts.

However, we agree with Aboriginal people who told us that it is not enough simply to acknowledge the role that poverty and its accompanying social conditions play in the over-representation of the Aboriginal poor in the justice system. It is valid, in our view, to ask from where that poverty and those social conditions came. Ovide Mercredi, an Aboriginal lawyer and now Grand Chief of the Assembly of First Nations of Canada, told us on behalf of Southeast First Nations at Berens River, "It is our conviction that the denial of our collective rights have substantially contributed to the serious problems in our communities."

We have no hesitation in concluding that indeed many of the difficult socio-economic conditions which Aboriginal people face daily are attributable directly to past government practices and policies.

For Aboriginal people, the essential problem is that the Canadian system of justice is an imposed and foreign system. In order for a society to accept a justice system as part of its life and its community, it must see the system and experience it as being a positive influence working for that society. Aboriginal people do not.

Simply providing additional court services in Aboriginal communities or otherwise improving what is inherently a flawed approach to justice is not, in our view, the answer. Those have been the solutions preferred by governments in the past, but it would seem that that approach has been unproductive for government and unacceptable to Aboriginal people. Historically, Aboriginal people have not received justice from the government. Their experience at the hands of the current legal system has been only slightly more positive. Therefore, they need to achieve resolutions that recognize and do not perpetuate historical injustices.

The situation involving Aboriginal people and the justice system has deteriorated, rather than improved, in the recent past. The reason would seem to be that Aboriginal distance from Manitoba’s justice system is not simply a geographical phenomenon, it is also a cultural one.

This is partly because the language of our courts is not clear, even to people for whom English is a first language. Many of its terms and concepts defy translation into Aboriginal languages. The conceptual difficulties are compounded by the fact that key figures in the justice system, such as judges and lawyers, do not have equivalents in Aboriginal society. Peace and harmony, the primary goals to which traditional Aboriginal concepts of justice were geared, have not been accommodated easily by an adversarial and adjudicative system.

Also, it is clear that while Aboriginal peoples have many of the same legal problems as non-Aboriginal people, and some unique ones as well, they do not turn to the legal system to resolve them. This is so even where Aboriginal peoples reside in communities where courts are readily accessible.

When they do engage the legal system, or become engaged by it, the manner in which their problems are dealt with often is out of tune with their unique position as Aboriginal people. As a result, they have come to mistrust the Canadian legal system and will avoid it when possible. Even when they do have to deal with it, we find that they simply minimize their exposure to it. This can take the form of inappropriate guilty pleas, failure to attend court appearances and a perpetual passivity that manifests itself in an apparent air of indifference about what happens to them in court.

There is significant over-representation of Aboriginal people as individuals charged with offences and incarcerated in our penal institutions. Yet, there is significant under-representation of Aboriginal people in the administration of justice as employees and managers of essential elements of the system, particularly in Aboriginal communities.

The delivery of justice to Aboriginal people in Aboriginal communities through the provincial circuit court system is inequitable and inadequate. It is a system characterized by delay and an air of colonialism. Its priorities are more often those of a society located far from the society of those appearing in the court, and few efforts to involve Aboriginal people from Aboriginal communities have met with any sustained success. Serious matters of greatest interest to the community are not even dealt with in the community where the offence occurs. It is not uncommon for people in Aboriginal communities to be completely uninformed about the fate of accused taken out of the community for prosecution.

There is evidence of systemic discrimination against Aboriginal people within the justice system. Aboriginal people are under-represented on juries, due to the manner in which potential jurors are selected and the manner in which they can be removed. Factors which case law has directed judges to take into account when deciding whether to deny or grant bail, or when considering the question of sentencing, often work against Aboriginal people.

Factors which judges are called upon to consider in the course of making dispositions generally are of importance to white society, but may not hold the same significance for Aboriginal people.

This has a number of implications. Not only is the accused judged by standards inappropriate to his or her community, but judicial dispositions may make little sense to an Aboriginal accused, because what judges take into account in sentencing may not have the same importance to the accused or to the community from which he or she comes.

The methods used by the Canadian legal system to resolve conflicts—particularly the adversarial system—are incompatible with traditional Aboriginal culture and methods of conflict resolution. Additionally, courts are not always a good forum for the resolution of many of the conflicts involving Aboriginal people and, indeed, can be counter-productive. This has to be considered along with the fact that there is an unwillingness by Aboriginal people to utilize the justice system to resolve personal legal problems as they arise, particularly those of a civil or family nature. Because there are few, if any, alternatives to the use of court in Aboriginal communities, many such conflicts go unresolved.

Aboriginal people are unfamiliar with the priorities and processes of the justice system and, more importantly, are unfamiliar with their rights within those processes. There is inadequate representation of Aboriginal people in the system among members of the judiciary and the legal profession.

Aboriginal accused lack proper legal representation for matters which bring them to court. Legal aid generally is unavailable if the matter is a summary conviction one or if treaty and Aboriginal rights issues are involved. When legal counsel is appointed for them by Legal Aid, they are unable to communicate with their lawyer except during breaks in the court proceedings on the day when circuit court arrives in their community.

Aboriginal people in Aboriginal communities face unreasonable delays within the justice system in resolving even simple matters. They become frustrated with the time it takes to finally resolve or determine a matter and often plead guilty to simply "get it over with."

We have found that past efforts at reforming the justice system, such as having more Aboriginal people in the system to serve as lawyers, court workers or interpreters, have not brought about significant improvements. This appears to be the case, in part, because the advocates of those changes have failed to take note of the importance of more fundamentally altering the approach being taken to the delivery of justice by the system and the individuals within it. The focus of past changes has been upon improving the manner of processing the Aboriginal people within it, rather than on understanding the inadequacies of the system itself. This is because there is a lack of understanding and appreciation of the cultural attributes of Aboriginal peoples by those within the administration of justice. From the perspective of Aboriginal people, there is a perception that the justice system, as it operates within their communities, is not accountable to their governments.

Aboriginal people are unable, because of socio-economic circumstances, to take advantage of available legal institutions and processes. For example, Aboriginal people in communities where court services are lacking have to expend large sums of money simply to make court appearances. People from Tadoule Lake, for example, when charged with an offence, must travel by plane to Leaf Rapids or Thompson for their court appearances, at a cost of several hundred dollars each time. If they have witnesses to call, they have to pay those costs, as well. This can result in innocent people having to face adverse conditions simply to protect their innocence. For civil matters, Aboriginal parties must travel into regional urban centres such as Thompson or The Pas simply to pursue or protect their rights.

Providing an appropriate response to these problems is becoming essential. Many of them are assuming critical proportions. Aboriginal youth represent a substantial presence in the Aboriginal population. Answers must be found quickly, therefore, which conform to clear and acceptable objectives.

If changes are to be made to the administration of justice in this province in order to resolve the issues we have identified, we believe that any such changes must be for the betterment of both Aboriginal and non-Aboriginal people alike. We believe that we should seek solutions that are acceptable to the people most affected, and stand the best chance of resolving those problems which Aboriginal people face within the justice system.

We conclude that the following principles must be followed:

• Solutions must be designed specifically to eliminate and not to perpetuate historical injustices.

• Solutions must ensure that the administration of justice to Aboriginal people is culturally appropriate.

• Solutions must overcome any misunderstandings about, and a general lack of appreciation of, the cultural attributes of Aboriginal peoples present within the administration of justice.

• Solutions must overcome the perception by Aboriginal people that the justice system as it operates within their communities is not accountable to them and their governments.

• Solutions must reduce the over-representation of Aboriginal people as individuals charged with offences and incarcerated in our penal institutions.

• Solutions must increase the presence of Aboriginal people in the administration of justice as employees, administrators and managers of essential elements of the system, particularly in Aboriginal communities.

• Solutions must ensure the delivery of equal and adequate justice to Aboriginal people in rural and remote communities.

• Solutions must provide essential legal services to Aboriginal people in culturally appropriate ways, in their communities.

• Solutions must establish a legal process which Aboriginal people can and will utilize to resolve private legal problems as they arise, particularly those of a civil or family nature.

• Solutions must provide culturally appropriate alternatives to the adversarial system as a legal process.

• Solutions must enable Aboriginal people to take advantage of available legal institutions and processes, despite their economic circumstances.

• Solutions must improve the image of the justice system in Manitoba as it affects Aboriginal people.

• Solutions must provide a better quality of justice for Aboriginal people.

• Solutions must identify and remove systemic discrimination and outright racism from the justice system.

We have come to the conclusion after much study and consideration that the best method of resolving the problems and following the principles which we have identified involves the establishment of Aboriginal justice systems in all Aboriginal communities, operated and controlled by Aboriginal people. Drawing upon the positive results of the American tribal court system, which we will discuss shortly, as well as on the failure of the Indian Act courts established by the Department of Indian Affairs and the failure of the established administration of justice to provide justice adequately to or for Aboriginal people, we conclude that the most appropriate course to follow is not simply to establish a system of Aboriginal courts in Manitoba, but to establish fully functional Aboriginal justice systems, complete with appropriate and related police and justice programs, support services and legal systems. TOP

 

The Argument for Aboriginal Justice Systems TOP

The call for separate, Aboriginally controlled justice systems was made repeatedly in our public hearings throughout Manitoba as one solution to all or most of the problems with the present system. We were quite impressed with the thoughtfulness and thoroughness of the commentary we received. The strength of those presentations was enhanced by the belief on the part of Aboriginal leaders that a great injustice has been perpetrated upon them.

Carl Roberts, former chief of the Roseau River Band, told us:

The imposition of foreign laws as supreme is totally unjust. The notion that English Common Law and French Civil Law supersede First Nations Law was and is based on racist and colonist attitudes. To imagine inviting a person into your home and having that person dictate to you that your authority and your laws are of no value and that theirs is supreme is totally racist and borders on insanity.

Many people emphasized that past injustices must be corrected in a way that respects the right of Aboriginal people to take control of those institutions which most affect them. Ovide Mercredi said to us:

We . . . believe that our own laws are important and need to be respected and applied in our daily lives. Unfortunately, neither parliament, the legislature, nor the judiciary fully understands our rights and laws.

He went on to add a factor that may have been an unarticulated premise underlying the concerns of other Aboriginal presenters, when he said:

Unless we reaffirm our rights and rebuild our social and political institutions now, we are fearful that within decades, assimilation will be complete, and our civilization will disappear forever.

Mercredi’s solution was one which we heard often:

It is our conviction that these problems can be resolved only through the full enjoyment of our collective rights to government and to our institutions of self-government.

In this context we believe that the foundation for change is self-determination. We need the support of all Manitobans for the recognition and establishment of Indian tribal courts in Manitoba as one of the basic units of Indian government and one of the practical measures for Indian self-determination.

Chief Larry Beardy of the Split Lake Band spoke to us on the same topic:

The underlying objective is to place the entire justice system, outside of serious crime, within the control of the Band and develop a system of justice consistent with our Cree heritage.

Chief Philip Michel of the Barren Lands Band made this comment on behalf of his people at the remote community of Brochet:

[Y]ou can see from our presentation the biggest injustice done to the Aboriginal people is the refusal and denial of the governments of Canada to recognize Indian self-government and Aboriginal rights.

If Aboriginal rights and Indian self-government were recognized, we wouldn’t be here today, trying to rectify the existing problem. The injustices done to the Aboriginal people by the judicial system is only the tip of the iceberg. Living with injustice from the general public is part of our daily routine....

We have inherent rights that no one, no government, can ever take away. We do not ask for anything special. We are simply asking for recognition of what we have had through the centuries. We are nations within a nation and wish to be treated as such.

In order for the Aboriginal people to improve the appalling conditions of our lives and to have meaningful participation in the Canadian mosaic, we have to be treated as nations.

We can well understand those concerns. Aboriginal people feel a strong sense of injustice about the manner in which they have been treated by governments and the justice system over the years.

But for many non-Aboriginal people, it is difficult to understand the full dimension of this injustice. A large amount of cultural faith and assumption is at work in what Aboriginal people are saying. We imagine it would be equally difficult for a non-Aboriginal person to try to explain why "democracy" works, or how "capitalism" works. To a large extent, explanations of such phenomena require a high degree of conceptual background knowledge which is difficult to attain in as short a period of time as was available to the Inquiry.

It is clear that for Aboriginal people, their faith in the ability of their cultural institutions and their leaders to undertake the revival of ancient principles for modern institutions is quite high. They obviously, as well, place a high degree of importance on the matter. We heard from representatives of national Aboriginal organizations on the topic.

Christopher McCormick, national spokesperson for the Native Council of Canada, representing Metis and non-status Indians in Canada, said this:

The first step is to recognize that tinkering won’t work, and that what will work is empowerment. Until the justice system can accommodate the reality of our self-determination, it can hardly begin to deal with over-representation of natives in prisons, the lack of native jury members or judges, discrimination in policing and corrections.

Gordon Peters, Vice Chief of the Assembly of First Nations, a national organization representing status Indian people, stated:

The one thing that we would like to express very clearly from the very beginning about where we stand and what we are looking for in our system, which makes it different from other systems throughout the world, is that we are talking about exclusive jurisdiction as a first and foremost avenue that we would be dealing with.

But Aboriginal justice systems were not being put forward as a total answer. Chief Peters pointed out that it would not solve all the problems between Aboriginal people and the justice system, but he clearly felt that it would provide a significant part of the solution:

So, no, we didn’t say, and we won’t say that tribal courts are going to be the answer. We think it is part of the answer. We think it is one of the ways that we can deal with our own people.

There are, in our opinion, sound reasons to establish separate justice systems for Aboriginal people in Manitoba. TOP

 

Taking Control TOP

The term "self-government" causes some concern in the non-Aboriginal community. It should not. It means the right of Aboriginal people to run their own affairs. There is, or should be, agreement that the term, at the very least, means the right to establish rules of conduct in Aboriginal communities that are developed by the population of those communities and have their support, and to see to the enforcement of those rules.

When Aboriginal people seek the right to self-government, they mean the right to determine how matters such as health care, education and child welfare are provided to their people, in their own communities. It includes the right to establish their own court system with their own unique ways of adapting and applying long-established cultural mores. It includes the right to apply their own ways of resolving interpersonal and community problems.

The concept of Aboriginal self-government is no threat to the non-Aboriginal Canadian. Aboriginal people are simply saying, "Let us run our own affairs, in our own communities, in our own way."

Aboriginal self-government includes the right to create and maintain codes of civil and criminal law, and a system to enforce and apply those laws as well as any non-Aboriginal law that Aboriginal people choose to adopt. We believe that is doing no more than recognizing in Aboriginal people a right they had and exercised not so many decades ago. We do not see why that should be upsetting to Canadian society.

It is clear that Aboriginal people in Manitoba are content to be part of the Canadian mosaic. As part of Confederation, they simply wish to be able to live according to their own customs and traditions, and to apply their own decisions, within their own designated lands.

The manner in which the non-Aboriginal Canadian system has controlled the lives of Aboriginal people in recent times has led only to disaster. It is time Canadian society recognized that the "white man’s" solutions have not worked. Courts and jails are filled with Aboriginal people. The situation is getting worse, not better. New solutions must be found. The obvious one is to allow Aboriginal self-government an opportunity to flourish to the fullest extent possible on Aboriginal lands, within the context of our Constitution.

It is not as if components of self-government are untested. Aboriginal people in this province, and elsewhere, have proven that they can run a better child welfare system for Aboriginal people than can non-Aboriginal agencies. Aboriginal children are no longer being shipped out of the province. They are being removed from parents when it is appropriate to do so, but the children are not being removed from their "larger" families or their people.

This is the Aboriginal tradition and it is seen by Aboriginal people as working well. The stigma of foster care that prevails in non-Aboriginal society does not apply in the Aboriginal system, where there is a family and community-wide responsibility for the children. The Aboriginal agencies have not yet been in existence for 10 years, but amazing improvements in the care of children already have been made. More are on the horizon.

Aboriginal people have applied their self-government to their own police forces, both local and regional. The Dakota Ojibway Tribal Police Force has been developing over the last 15 years. This is an example of a community taking responsibility for its own citizens and its own problems. It is also an example of self-government.

The schools in the North are increasingly receiving the benefits of Aboriginal teachers, educated in the South and returning to Aboriginal communities to help Aboriginal children and to manage the complexities of an educational system. The operating responsibility for many reserve schools has been transferred from the Department of Indian Affairs to the local First Nation government. The transfer of health services has been under discussion for some time. These too are components of self-government.

Aboriginal self-government is a reality. It exists. It benefits the Aboriginal person and his or her community, and takes nothing away from Canadian society. In fact, we believe that Aboriginal self-government adds to the overall positive growth and development of Canada.

It is time to apply similar advances to the administration of all aspects of the justice system. Aboriginal governments need to establish systems to deal appropriately with those people causing problems in their communities and to provide a means for other community members to resolve their legal problems. Aboriginal governments need to provide them with culturally appropriate ways to achieve the ultimate result of restoring and ensuring peace among individuals, and stability in the community.

To enable this to be done, Aboriginal communities must have the right, as part of self-government, to establish their own rules of conduct, to develop means of dealing with disputes (such as courts or peacemakers), appropriate sanctions (such as holding facilities or jails), and the full range of probation, parole, counselling and restorative mechanisms once applied by First Nations.

The Aboriginal right and opportunity to manage these matters themselves, within their own territory, is self-government. It stems from our history, from the existence of treaties, from the Aboriginal people’s original title to the land and from the current provisions of the Canadian Constitution. As a distinct level of government, Aboriginal governments, either individually or collectively, may have to negotiate with federal and provincial authorities as to how these matters are to be managed, but those negotiations should be done on a government-to-government basis. That is what happened with respect to child welfare. It is in that context that we feel no hesitation to recommend the formal recognition of the principle of self-government for Aboriginal people and its extension to the administration of justice.

Section 35 of the Constitution recognizes and affirms the "existing aboriginal and treaty rights of the aboriginal peoples." From the material which we have reviewed, from the evidence provided to us by Aboriginal elders and from the evidence we heard during the course of our hearings, we conclude that the internal sovereignty which Aboriginal people always had exercised in controlling their daily lives has never been surrendered by them, or extinguished in any formal process involving Aboriginal consent or in any specific federal or provincial legislation. As we have noted, it continues to exist.

The existence of Aboriginal people and their unique rights is not derived from legislation. Aboriginal people had formed distinct self-governing societies long before Europeans arrived in this country. The treaty-making process was just one manner of recognizing that existence. Aboriginal governments, and the right of Aboriginal people to them, were an aspect of the original title which Aboriginal people had and, in one form or another, continue to hold.

Aboriginal people cannot be said to have surrendered that right by voluntarily entering into treaties with the Crown. We believe that the treaty-making process can be seen as a confirmation of their right to a collective existence into the future as a people. That right, we believe, has been captured and now finds protection in section 35 of the Constitution of Canada.

To the extent that Aboriginal rights of Aboriginal people have been confirmed in other Canadian or British laws, it has another form of recognition, but the state of the law in Canada, as we understand it, is that Aboriginal people and their rights did not depend upon non-Aboriginal recognition in order to exist.

The same principle applies, in our view, to both Indian and Metis people, the latter of whom derive Aboriginal rights under the Constitution from their Aboriginal ancestry. While Metis people may have no rights under the Indian Act, that is irrelevant, in our view, to the question of whether they have any right to self-determination.

The recent (in terms of Aboriginal history) enactment of Canada’s Indian Act, with its reference to Indian bands, elections of chiefs and councils, and band by-law powers, is not the source of Aboriginal self-government. Despite the presumption in the legislation that nothing can happen on Indian lands without federal approval or compliance with the Act, the Act does not state that tribal authority pre-existing its passage is abolished. In fact, the Act seems to state very clearly that only when the minister declares that certain provisions apply to a First Nation does there occur a necessary interference with Aboriginal self-determination.

The fact that Indian bands have borne the burdens of the legislation over the years, or have tried to work with a federal bureaucracy itself dependent upon the legislation, should not be interpreted as acceptance or acquiescence by Aboriginal people to a derivative form of government dependent upon delegated powers from a federal authority.

The assertion of inherent political powers and jurisdiction by First Nations in Canada and more notably in Manitoba in such areas as child welfare, education and social services has resulted in governmental arrangements that increasingly support the perspective that Aboriginal people have a considerable role to play in governing themselves.

Aboriginal decisions to operate under the laws of the province, such as in the case of child welfare, and under federal laws, as in the case of the Indian Act, clearly resulted from processes whereby the opportunities to make other, more appropriate, arrangements were denied to them, and should not be misinterpreted as a willingness by Aboriginal people to forego any of their own rights.

Child welfare measures (which First Nations have classified as "interim") have been arranged to further the self-determination aspirations of First Nations, not to jeopardize or to undermine their inherent rights. These measures are regarded by them as practical steps necessary until such time as the federal and provincial governments finally agree to recognize explicitly, within the Canadian legal system, their inherent right as First Nations to govern themselves.

From that, we conclude that solutions that try to turn such interim arrangements into the norm for issues related to Aboriginal self-determination would be inappropriate.

As we understand it, the Aboriginal right of self-determination cannot be met through a federal/provincial commitment to delegate their current authority. It is a matter of recognizing that Aboriginal people have the legal right to exercise constitutionally protected powers, equivalent to those currently within the federal/provincial regime, on Aboriginal territories. Because of the manner in which their rights have been treated in the past and the impact that that treatment has had on their lives, we believe that to begin to move in the direction of establishing such a right in a variety of areas ultimately would provide Aboriginal people with "constitutional justice."

The power to establish and maintain institutions of government is an aspect of sovereignty. It is not within our mandate to attempt to define with any degree of fullness what Aboriginal self-government is. However, of this much we are satisfied: we believe that it includes the right to establish and maintain their own forms of justice systems in their own territories. TOP

 

Social Cohesion TOP

Aboriginal people in Manitoba have, in the past century, experienced a rapid decline in their systems of internal social cohesion, largely as a result of the imposition of laws, policies and new institutions based on different values prevalent in Canadian society.

For example, members of Aboriginal communities were traditionally educated by elders, who had the role of teaching and transmitting to children knowledge of their culture and their history as a people. Such knowledge of Aboriginal society and the Aboriginal way of survival taught Aboriginal children how to succeed and excel.

This method of teaching was displaced largely as a direct result of the intrusion of an alien educational system. New and non-indigenous teachers ignored the traditional teachings of Aboriginal people and proceeded to teach Aboriginal children the culture, the history and the knowledge of non-Aboriginal society, in ways which undermined the values and importance of Aboriginal traditions and cultures.

The impact of the educational system on the social institutions of Aboriginal communities, such as the traditional role of elders as teachers and spiritual leaders, was quite dramatic. How the new knowledge was transmitted and how it was taught in the schools not only affected the role of the traditional teachers, but also the role of the parents and the leaders of Aboriginal communities in their ability to transmit knowledge, culture and social norms.

Traditional methods of social control in the communities were redefined. The massive removal of Aboriginal children from parents, from their cultures and from their communities, in order that they could be trained in and made knowledgeable of the teachings of white society, virtually displaced the socialization institutions of Aboriginal people.

The new educational methods had the same effect whether education took place in a residential school or in a school situated within the Indian community. The effect was quite simply to question the culture of Aboriginal people and its continuing validity for Aboriginal youth. It was to teach Indian children to scorn their particular culture as being outdated, primitive, backwards and of no significance in the modern context.

It was to put into the minds of Indian children new notions that called into question the validity and authority of traditional Aboriginal institutions. It resulted in many Aboriginal children believing, for example, that the authority to teach or the authority to control the lives of Aboriginal people was the prerogative of non-Aboriginal people who did not live in the community. In the Cree and Ojibway languages, for example, the word used most commonly for "government," when translated, meant the "white man’s government."

Practices such as child rearing, in which Indian people had readily helped one another, were very nearly destroyed by the introduction of a foreign child welfare system, a system that did not take into account the child development traditions and the child welfare practices of Aboriginal people.

The removal of authority and power from Aboriginal leaders has resulted in the near destruction of Aboriginal cultures, and has contributed to feelings of hopelessness, powerlessness and despair, which are exhibited in antisocial behaviour in Aboriginal communities.

The idea that other people have the power to determine the fate of Aboriginal people, whether they like it or not, we are told, explains the deep sense of mistrust that Aboriginal people feel toward the justice system.

There are very few examples where past Aboriginal contact with the governments of Canadian society has not resulted in some attempt to have their powers of self-determination stripped away from them, to be replaced by foreign or new ways of reorganizing their societies.

Despite the high incidence of crime in Aboriginal communities, it would not be fair, nor would it be accurate, to describe those communities as socially or politically dysfunctional. Clearly, there exists within all Aboriginal communities capable leadership well able to come to grips with difficult issues if they are supported properly and provided with appropriate resources.

Many elders within Aboriginal communities maintained an abiding faith that, eventually, matters would be restored to their rightful place. The result seems to be that there remains a very strong determination on the part of elders and leaders within Aboriginal communities to preserve what authority remains to them, and to take whatever steps are necessary to recapture and to reassert the right and jurisdiction to deal with their needs, problems and development in a manner that is consistent with their social values, historical traditions and cultures.

In the face of the current realities confronting Aboriginal people, we believe that it is important to recognize that the greatest potential for the resolution of significant Aboriginal social problems lies in Aboriginal people exercising greater control over their own lives.

The dependency on alcohol, the increasing rates of suicides, homicides and criminal charges, and the high rates of incarceration are problems that we believe can be dealt with best by Aboriginal people themselves.

These social conditions, we believe, are indeed the products of dependency and powerlessness, created by past government actions and felt deeply by the majority of Aboriginal people. This dependency will not disappear, we are convinced, until Aboriginal people are able to re-establish their own sense of identity and exercise a considerable degree of self-determination.

We are unable to define with certainty at this point how far that development needs to proceed in order to turn the tide of tragedy we see, but we are satisfied enough to state that we believe that the right of Aboriginal people to establish and maintain their own justice systems within their own communities, free from interference from federal and provincial governments, is of paramount importance to that development.

There must be a drastic shift in thinking about power and authority. The federal and provincial governments and their officials have to accept that Aboriginal people must have the necessary power and authority to govern themselves in this area. Impediments to the exercise of such power and jurisdiction must be removed.

The present judicial system has not done much to allay the concerns of Aboriginal people that the courts have little understanding of Aboriginal customs, traditions or laws. In fact, courts are perceived by Aboriginal people as being disinclined to apply or adopt Aboriginal customary law, even in areas where the culture of Aboriginal people should be a dominant consideration, such as in juvenile, family and child welfare law.

Aboriginal people have a right to their own cultures. They are entitled to apply traditional approaches to meeting the needs of Aboriginal children who, for whatever reason, are in need of help or protection.

Culture is more than the values, traditions or customary practices of Aboriginal people. Culture is also the laws, customary or contemporary, of the people who belong to a distinct society. Culture is the social and political organization of the people who constitute a distinct society. Culture also includes the administration of justice as a fundamental component of every organized society.

The right of Aboriginal people to control their own pace and direction of development must be retained. The use of Aboriginal social and cultural institutions, such as the Aboriginal family and the role of elders in maintaining peace and good order in their communities, and in transmitting knowledge about acceptable and unacceptable behaviour, is, we believe, the proper road to Aboriginal recovery and development. TOP

 

Our Recommendation TOP

It is wrong, in our view, simply to maintain the status quo on the assumption that eventually Aboriginal people will learn to accept the justice system as it presently exists. It is wrong to assume that if only Aboriginal people would accept the justice system, then there would be no more problems. It is wrong to assume that changes to the existing system will enable it to provide fully adequate services to Aboriginal people. To think in this manner is to ignore the impact of the past human experience of Aboriginal people. Their self-determination has been denied and suppressed, social disorganization has been the consequence, and they are unable to accept the "white man’s solution" any longer.

The reality is that approaches taken by a non-Aboriginal justice system in Aboriginal communities will not address the social needs, development, culture, or the right to self-determination of those communities. A court system that is not seen as an institution that belongs to them, and that is unable to adapt to their indigenous concepts and mechanisms of justice, will not work in Aboriginal communities.

An important principle for change and for bringing about changes in Aboriginal communities is that Aboriginal people must be seen as having control. This principle, we discern, is gaining greater and greater acceptance in Canadian society.

Clearly, the maintenance of law and order on Aboriginal lands is an integral part of Aboriginal government jurisdiction. This means that in establishing a system of justice for Aboriginal people, the laws enacted by Aboriginal people themselves, or deliberately accepted by them for their purposes, must form the foundation for the system’s existence.

This calls for systemic change and it is clear that systemic change is necessary. Efforts at reform over the last several years, such as through expanded legal aid services and the development of Aboriginal court worker programs, have been aimed at addressing issues that primarily arise in urban courts, as have attempts at "indigenizing" the justice system.

This has occurred, we believe, because the primary issue which was addressed in past efforts was not the fundamental issue of systemic bias within the justice system, but, rather, the perception that the over-representation of Aboriginal people in that system arose because Aboriginal people did not understand the processes in place to protect them and other accused, and that they simply required assistance to understand what was being done to them.

We believe that such a perception is inherently flawed, in that it represents a further bias: that there is nothing wrong with the system, only with Aboriginal people. We believe very strongly that cultural bias within the justice system represents the single greatest contributing factor among several that cause Aboriginal over-representation within the justice system. It is for that reason that we have concluded that Aboriginal aspirations for their own justice systems not only must be considered carefully, but that steps toward their implementation must be undertaken. To this point, all other efforts at reform have failed and are unacceptable to the people whom they are intended to benefit.

It is clear that there is widespread interest in and growing support for distinct Aboriginal justice systems.1 Of particular significance is a recent position taken by the Canadian Bar Association. CBA, having established a special committee on imprisonment, issued a report entitled "Locking Up Natives in Canada" in August of 1988. This report contained several valuable recommendations, including one advocating the establishment of a parallel Aboriginal court system. This report was officially ratified as national policy of the CBA at its annual meeting in August 1989, as was another CBA report entitled "Aboriginal Rights: An Agenda for Action—The Report of the Special Committee on Aboriginal Justice."

These developments reflect, we believe, widespread general acceptance of the right of Aboriginal people to self-determination within their own communities, and a general appreciation that the extensive and negative experiences of Aboriginal people within the prevailing legal system are a tragedy that can be only corrected through major changes.

We recommend that:

 The federal and provincial governments recognize the right of Aboriginal people to establish their own justice systems as part of their inherent right to self-government.

 The federal and provincial governments assist Aboriginal people in the establishment of Aboriginal justice systems in their communities in a manner that best conforms to the traditions, cultures and wishes of those communities, and the rights of their people.

 Federal, provincial and Aboriginal First Nations governments commit themselves to the establishment of tribal courts in the near future as a first step toward the establishment of a fully functioning, Aboriginally controlled justice system which includes (but need not necessarily be limited to):

• A policing service.

• A prosecution branch.

• A legal aid system.

• A court system that includes:

1. a youth court system;

2. a family court system;

3. a criminal court system;

4. a civil court system;

5. an appellate court system.

• A probation service including a system of monitoring community service orders.

• A mediation/counselling service.

• A fine collection and maintenance enforcement system.

• A community-based correctional system.

• A parole system.

 The federal and provincial governments begin the process of establishing Aboriginal justice systems by enacting appropriate legislation.

 At the same time as legislation to begin the process of establishing Aboriginal justice systems is enacted, the federal and provincial governments acknowledge, by resolution of their respective legislative bodies, that Aboriginal justice systems must be protected constitutionally from federal and provincial legislative incursions and that such systems will ultimately be recognized as an aspect of the right of Aboriginal people to self-government and will not be dependent solely upon federal or provincial legislation for their existence.

 Aboriginal governments enact their own constitutions setting out, among other things, the principle of the separation of the judicial from the executive and legislative arms of each Aboriginal government so as to protect Aboriginal justice systems from interference and to provide security for their independence.

In its closing statement to the Inquiry, the Assembly of Manitoba Chiefs stated this priority:

Our most basic recommendation is that Aboriginal control of our justice systems is necessary. Furthermore, our commitment and expectation in the long run is that the basis upon which Aboriginal justice will be premised and established is through the inherent authority of self-governing peoples.

We believe that what we propose is the restoration of two concepts:

• That the traditional system of Aboriginal justice served the needs of its society based on the objects of healing, reconciliation and re-establishment of the community in situations where the peace and harmony of the community was disrupted.

• That the same object of peace and harmony was intended to serve the needs of two societies when conflict arose.

The Department of Indian Affairs, in recent years, has stated repeatedly that it maintains a policy of Indian self-determination. In his presentation to us on behalf of the Department of Indian Affairs, Deputy Minister Harry Swain stated:

For the last several years the focus has been on moving from Indian administration to Indian management.

What we are interested in doing is moving along that scale to a stage where Indian communities govern themselves within Canada.

The next stage is Indian jurisdiction—the challenge of the 1990s. The department is working with Indian and provincial governments to draft laws that will create room for Indian governments to legislate in fields of critical importance to them.

If there is to be peace and harmony between Aboriginal and non-Aboriginal people in this country, it must be premised upon respect for each other’s rights. The tenor of the discussion, therefore, must shift from the "if" to the "how," regarding the establishment of Aboriginal justice systems in Manitoba. The major issue, therefore, becomes how such a system would relate to the existing system. In considering that question, we have carefully looked at and considered the experience of the American tribal court systems. We believe that analysing their experience will provide some useful information when determining how to go about the establishment of Aboriginal justice systems in Manitoba. TOP

 

American Indian Tribal Courts TOP

The Indian tribal court systems in the United States have been, to a large extent, the inspiration for Aboriginal people in Canada. These systems provide a variety of examples of court systems operated by Indian tribal governments. We visited the Navajo Reservation, as well as tribal courts in other parts of the United States, in the spring of 1989.

One issue which struck us as significant was the fact that, although there was much that we could learn from large tribal systems such as the Navajo system, its sheer size clearly put it into a class by itself in terms of administration and resources. The Navajo Reservation covers many thousands of acres, with a resident population of close to 200,000 and a tribal justice budget in the millions of dollars. There are simply no Aboriginal communities of that size in Canada.

Nevertheless, we did learn a great deal from the Navajo operation, such as how to combine Anglo-American legal practices with traditional methods of dispute resolution when we looked at their peacemaker operation. But we decided that if we were to seriously consider whether Aboriginal communities in Canada could viably maintain an Aboriginal justice system, we had to look more closely at tribal court operations on reservations that were more similar in size, population and socio-economic status to those in Manitoba.

While it is difficult to make sound comparisons, we felt that viewing how tribal courts operated within the smaller Indian reservations and pueblos of New Mexico and Arizona would be beneficial, so we visited many of them.

In addition, we visited the state of Washington, where we met with Professor Ralph Johnson of the University of Washington in Seattle, who provided us with considerable information and insight into tribal court operations in the United States.

Professor Johnson introduced us to Judge (now Chief Judge) Elbridge Coochise of the Northwest Intertribal Court System, a court system established to provide circuit court services to 16 tribes in one region of the state of Washington. Judge Coochise, who is the president of the National American Indian Court Judges Association, discussed with us how his court system works.

We were impressed with the fact that the tribal communities serviced by the Northwest Intertribal Court System were remarkably similar in size, population, economy and socio-economic status to Aboriginal communities in Manitoba. Their populations range from 200 to 500 people. Their reservations are relatively small. The legal, jurisdictional and cultural conflicts extant in Canada, about which we heard so much in the course of our hearings, appeared to be very similar to those experienced by tribal authorities in the state of Washington.

We were sufficiently impressed with the systems we visited in the United States that we convened a special session of the Inquiry on the subject of tribal courts. We held a Tribal Courts Symposium at the University of Manitoba Faculty of Law in November 1989. At that symposium we heard from several American tribal court judges and court officials about the manner in which they go about their work and solve the myriad of jurisdictional, legal, administrative and political problems that continually affect them. Tribal court judges explained how they run their courts, and explained how they deal with the issues of cultural conflict and cultural adaptation both within and by their courts.

It is clear that the existence of fully functioning tribal court systems on a variety of Indian reservations in the United States, many of them similar in size and socio-economic status to Indian reserves in Manitoba, and the benefits which those communities derive from them, are strong evidence that separate Aboriginal justice systems are possible and practical.  TOP

 

Historical Background TOP

Although the concept is not readily apparent today, Indian tribes of North America were recognized as being fully sovereign by all European nations including England, from which many of our legal principles come, for the first two and a half centuries following European arrival in America. This position did not begin to change until the mid-1700s when the British Crown began to assert a form of protectorate relationship with the still sovereign Indian nations.2 In effect, a pattern highly prevalent in continental Europe was being transplanted to the New World—a pattern in which one nation claimed a right and a duty to protect smaller, subordinate sovereign states from the potentially dangerous actions of other European nations. In the case of England, the same claim of protectionism from other European nations, and even from its own colonies, was used to justify the Crown’s assertion that Aboriginal nations were under its care and that no one else could deal with them. The Royal Proclamation of 1763 articulated this position:

And whereas it is just and reasonable, and essential to our interest, and the security of our Colonies, that the several Nations or tribes of Indians with whom We are connected, and who live under our protection, should not be molested or disturbed in the Possession of such Parts of Our Dominions and Territories as, not having been ceded to or purchased by Us, are reserved to them or any of them as their Hunting Grounds 3

The terms of the Royal Proclamation, in reference to Indian nations, reflected the codification of a changed British policy, rather than a declaration of Aboriginal rights. In earlier 17th and 18th century treaties, as in the case of the Treaty of Fort Albany of 1664, full sovereign status on the part of Indians, including jurisdiction over all colonists within Indian territory, had been recognized by the British Crown.

Following the American Revolution of 1776, the newly independent United States of America claimed that it was the successor to the British position and acted accordingly in its early federal legislation.4 American courts sustained this view and, in fact, expanded it somewhat in the early 1800s by articulating for the first time the doctrine of "domestic dependent nationhood" to describe the nature of the government-Indian relationship. Indians were not citizens, the doctrine held, nor were they "considered as subjects born under allegiance, and bound, in the common law sense of the term to all its duties," yet, they were "not aliens in every sense, because of their dependence as a tribe, and their rights to protection."

One court referred to the Oneida Tribe as a "distinct and independent tribe" of Indians who reside upon lands that they "hold and enjoy as the original proprietors of the soil."5 As such, their political relation to the state is "peculiar, and sui generis."6 At the same time, Indian nations were said to have lost "their rights to complete sovereignty, as independent nations," as this was "necessarily diminished and their power to dispose of the soil at their own will, to whomsoever they please, was denied by the original fundamental principle that discovery gave exclusive title to those who made it."7

Despite those latter words, however, it was clear that Indian nations had not lost all their sovereign status. The United States Supreme Court declared that as "domestic dependent nations," residing within the jurisdictional limits of the United States in law,8 Indian nations retained many aspects of sovereignty:

The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.... The very term “nation”, so generally applied to them, means “a people distinct from others.” The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words “treaty” and “nations”, are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well-understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.9

U.S. Supreme Court Chief Justice John Marshall, who wrote the leading decisions of the time, crafted a legal decision that gave status to European nations to claim overriding rights through "discovery." The "discovering" European state obtained a monopoly on trading relations and the exclusive right to acquire title to the soil so as to locate settlements thereon. These rights accrued only to the country that was successful, through the imposition of "irresistible power," in being able to assert its authority effectively in relation to both the Indians resident in the area and the competing European states. In developing this argument, Chief Justice Marshall drew upon international law and the European experience:

[T]he settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self-government, by associating with a stranger and taking its protection. A weak State, in order to provide for its safety, may place itself under the protection of one more powerful without stripping itself of the right of government, and ceasing to be a State. Examples of this kind are not wanting in Europe. “Tributary and feudatory states”, says Vattel, “do not thereby cease to be sovereign and independent states so long as self-government and sovereign and independent authority are left in the administration of the state.” At the present day, more than one state may be considered as holding its right of self government under the guaranty and protection of one or more allies.10

He then applied this result to the history of colonization to that time in the United States and concluded that the British Crown had obtained the status of being the paramount, discovering state. Its rights and responsibilities had passed after the American Revolution to the United States, whose constitution formally conveyed the powers relevant to Indian nations solely to federal jurisdiction. The practical effect was that state laws could have no force and effect upon Indian nations or their territory.

Thus, Indian nations were viewed as sovereign nations with continuing rights to govern their own affairs, to own their lands, and to enter into treaty relations with Europeans and successor governments, within certain limitations.

Chief Justice Marshall clearly wished to protect the territorial integrity of the new country and to nourish its imperial aspirations toward the West.11 Therefore, Indian sovereignty was described in such a way as to be limited and internal in nature, operating within the overriding sovereignty of the United States while remaining inherent to the indigenous population.12

What is striking to us is the fact that there was nothing in American statute law or in the American Constitution which compelled Chief Justice Marshall to articulate the theory of "domestic dependent" nationhood. It is clear from his decision that he considered and applied principles of English common law and international law to come to his decision.

The result of his legal conclusion—which is now the law of the United States—was that Aboriginal tribes in the United States retained significant aspects of their sovereignty, subject to an overriding federal supervision and control. Tribes could exercise their sovereignty unless it was taken away from them by express federal action or law, or by necessary implication arising from a contrary intention as contained in another federal action or law.

In Canada, an opposite approach was taken. Aboriginal people in Canada, according to the law as it evolved in Canadian court decisions, only retained as much of their original sovereignty as the federal government specifically had recognized their having. Canadian courts have not acknowledged, as American courts have done, Aboriginal sovereignty to be inherent and a continuing legal fact. Part of the reason for this probably relates to the emphasis which Americans have placed on the doctrine of inherent rights. This concept played a significant role in the American moral and legal justification of its revolution against England several years earlier. A country premised upon what it perceived to be its own "inherent" right to self-government could not easily turn around and deny the existence of that right to others who had neither been conquered in battle, nor ever surrendered that right.

However, England, whose influence over Canada’s legal system continues even to this day, had developed legal principles which emphasized the importance of the Crown and the doctrine of parliamentary supremacy. Those principles have played a large role in denying the existence or validity of any Aboriginal right which is inconsistent with full parliamentary supremacy and Crown title.

One of the implications of the American recognition of an inherent and continued Indian sovereign status was an acceptance of the right of Indian nations to retain control over their internal affairs. The principle of internal Indian sovereignty, however, was considered subject to the overriding power of Congress to intrude and regulate that jurisdiction through express legislation. This meant that Indian nations could develop new legal systems if they wished, or maintain their traditional laws and forms of dispute resolution. Similarly, they could develop new governmental institutions with Western overtones, or retain their traditional systems of government.

The Cherokee Tribe, for example, operated a tribal system based largely upon Anglo-American principles from 1808 to 1898, with written legal codes and constitution, trained lawyers and judges, as well as a full range of courts all operating in the Cherokee language. However, the overwhelming majority of Indian nations opted to ignore Anglo-American influences and continued to follow customary laws and governmental systems that had existed for centuries prior to European colonization.13

Indian sovereignty has long been recognized as being complete and exclusive in reference to matters affecting tribal members within Indian country. This position was confirmed by the Supreme Court of the United States in 1883 when it struck down a murder conviction by the U.S. District Court of the Dakota Territory of a member of the Oglala Sioux Tribe, as an improper assertion of state jurisdiction in a matter over which only the tribe had authority.

However, it is interesting to note that the relatively forceful recognition of Indian sovereignty in the Marshall decisions of the 1820s and 1830s had succumbed to a patronizing tone, in which members of First Nations were seen as inferior and needing to be introduced slowly to the "civilized" standards of the American government, as the justification for preventing state intrusion into tribal areas of sovereignty. Indians, it was said, were

subject to the laws of the United States, not in the sense of citizens, but, as they had always been, as wards subject to a guardian; not as individuals, constituted members of the political community of the United States, with a voice in the selection of representatives and the framing of laws, but as a dependent community who were in a state of pupilage, advancing from the condition of a savage tribe to that of a people who, through the discipline of labor and by education, it was hoped might become a self-supporting and self-governed society.14

Therefore, the court concluded, it was "unfair" to hold Indians to the higher standard of white society, as it would be unfair to try them

not by their peers, nor by the customs of their people, nor the law of their land, but by superiors of a different race, according to a law of a social state of which they have an imperfect conception, and which is opposed to the strongest prejudices of their savage nature.15

Despite the clearly racist tone of the decision, the ultimate result was that American Indians could not be prosecuted in American courts for crimes committed against other Indians in Indian territory. The federal government was not happy with a situation in which American courts (federal, state or territorial) had neither criminal nor civil jurisdiction over matters that arose on reservations. This displeasure was compounded by the fact that the Bureau of Indian Affairs (BIA) had no legal authority to interfere, since all laws and legal mechanisms on Indian reservations were under the control of the tribal governments. The bureau decided to take control of the situation by establishing Indian police forces responsible to and paid by the local Indian agents. Congress eventually sanctioned the program in 1878 through allocating funds, but these police never were given any legislative recognition.

The intent underlying the establishment of an Indian police force was articulated clearly by Hiram Price, Commissioner of Indian Affairs, in 1881 when he said:

The police force is a perpetual educator. It is a power entirely independent of the chiefs. It weakens and will finally destroy, the power of tribes and bands.16

The agents of the Bureau of Indian Affairs directed and paid the Indian police officers to enforce "law and order" within the reservation, even though it was clear that any arrests they made were completely unlawful. The local Indian agent also often would act as a self-appointed judge and impose criminal sanctions, also without any legal authority.17

The next step was to create a formal court system with a greater semblance of legitimacy as a further civilizing force. A Court of Indian Offenses (or CIO) was established in 1883, again, initially without any legislative foundations from Congress. Indian judges were appointed to the court by local agents of the Bureau of Indian Affairs, and enforced a summary civil and criminal code drafted by the Commissioner of Indian Affairs in April of that year.

Courts of Indian Offenses still function today in various places. However, they now possess official legal status and authority under the Code of Federal Regulations. They are referred to sometimes as CFR courts. They can apply the customary law of the tribe on whose reservation they are located, to a limited degree.18

The final aspect to this evolution was the establishment of what has come to be called the tribal court system. Those Indian nations that wished to do so could exercise that option, which was made available as part of the Roosevelt New Deal via the federal Indian Reorganization Act of 1934 (the IRA).19 Indian tribes were authorized by that legislation to enact their own tribal constitutions and law and order codes, under the supervision and ultimate control of the Bureau of Indian Affairs. Provisions creating tribal courts could be included as part of these constitutions or passed as a component of the regular tribal law and order codes. A large number of tribes seized upon this opportunity as a means to reduce the control of the Bureau of Indian Affairs operating directly within their reservations and to restore a greater degree of autonomy.

While the power of Indian agents was reduced somewhat and Courts of Indian Offenses were eliminated for those tribes which selected this option, it also meant that those tribes had to choose to function along the lines of American concepts of democracy and governmental structures by relinquishing their traditional system. Rather than recognizing tribal sovereignty, the Indian Reorganization Act reflected the exercise of further congressional power. It did not extend, however, solely "delegated powers." Choosing to incorporate under the Indian Reorganization Act did not involve formally renouncing tribal sovereignty. The tribal governments continued to retain their domestic, dependent nationhood status over internal affairs, but their governmental structure lost its traditional basis, and customary law was replaced by Indian statutory enactments, known as "tribal codes," as the basis under which daily life was regulated. This was the case, however, only for those Indian tribes who opted to come within the scope of the Indian Reorganization Act. Many Indian reservations still have no tribal court system whatsoever. TOP

 

Public Law 280 TOP

In 1953 the United States Congress enacted Public Law 280.20 It was a component of the prevailing congressional initiative to terminate federal responsibility for Indians by transferring that jurisdiction to state governments.

When first enacted, Public Law 280 had transferred to state courts jurisdiction over "civil causes of action between Indians or to which Indians are parties" as well as "offenses committed by or against Indians in the areas of Indian country...." It went on to provide that "... the criminal laws of such State or Territory shall have the same force and effect within such Indian country as they have elsewhere.…"21 The statute listed the regions affected: all of California, Nebraska, Wisconsin, all of Minnesota except the Red Lake Indian Reservation, and all of Oregon except the Warm Springs Indian Reservation. The state of Alaska, except for the Metlakatla Indian community of the Annette Islands, was included in 1958 when it obtained statehood. The statute also allowed any other state to opt in by amending its own laws to assert jurisdiction. Ten states moved to exercise this option. Florida seized full jurisdiction on all reservations, while Utah and North Dakota required tribal consent first (none gave it). Arizona and Idaho only took jurisdiction over specified subjects, while Montana and Iowa did so in all spheres but only in reference to one reservation. South Dakota’s assertion of jurisdiction was dependent upon the federal government paying all costs, a provision which was struck down later by the South Dakota Supreme Court. Washington assumed full jurisdiction over non-Indians on reservations, over Indians on non-trust lands and over Indians in eight subject areas on trust lands.22

The effect of the law was that in those states to which the law applied, most tribal courts have disappeared because of the prevailing and overriding jurisdiction given to state courts by the law. The recent rise in Indian desire for self-determination has reversed the trend toward such state usurpation of tribal jurisdiction. Reversing the growth of state jurisdiction over Indians and Indian lands was made possible by provisions in the Indian Civil Rights Act of 1968 that allowed the resumption of jurisdiction by tribal governments which had lost it. Nevada allowed its tribes to take back their original jurisdiction, if they so desired, from the very beginning of Public Law 280, and most have. TOP

 

Tribal Court Systems Today TOP

The net result of this historical development is that courts with three different origins, with radically different underlying jurisdictions and reflecting different philosophical orientations, exist simultaneously:

• Traditional Courts. These continue to exist with the original jurisdiction established by traditional tribal laws, restricted only by express federal legislation. Their orientation is to administer customary laws as supplemented by explicit tribal enactments.

• Courts of Indian Offenses (CIOs). These courts are regulated by the Code of Federal Regulations and their jurisdiction is limited by the terms of those regulations to minor crimes and a narrow range of civil matters. Most of the law applied and the structure of the court are established by the federal government.

• Tribal Courts. These courts are governed solely by tribal constitutions and tribal codes passed pursuant to the Indian Reorganization Act and any express federal legislation.

Approximately 145 American Indian tribes have some form of their own court system functioning.23 In addition, there are an unknown number of tribes in the Midwest that operate "conservation courts," which deal only with hunting and fishing offences created by tribal law. Some of these courts are limited to on-reservation infractions, but a few also handle off-reservation offences involving tribal members harvesting within the tribe’s treaty territory.

The number of Courts of Indian Offenses has declined dramatically over the years, with the result that there appear to be only 23 of them currently functioning. It is worth noting, however, that this structure still is chosen sometimes as a starting point for a court system for many tribes. For example, the Coushatta Tribe of Louisiana chose a Court of Indian Offenses in 1985 as their first effort at establishing a tribal court.

A further 14 tribes function in full or in part under a traditional or customary law system.

The remaining 108 tribes operate courts which derive their jurisdiction exclusively from tribal constitutions and/or tribal law codes as provided for in the Indian Reorganization Act.24

This reflects a significant change even since 1974, when the Bureau of Indian Affairs stated in different reports that between 91 and 111 courts existed on reservations.25 Not only has the total number of courts increased substantially in recent years, but this increase has occurred largely among the IRA tribal courts, which have almost doubled in number. It is noteworthy that several communities have switched from traditional to tribal courts and a few have done the reverse, while most of the growth has arisen through the establishment of new courts that have retaken jurisdiction from the state court systems. These new systems usually have opted for the tribal court model.

It is ironic that, while traditional courts are being supplanted by tribal courts, some of the latter, such as those of the Navajo, have been developing more traditional methods of dispute resolution, such as peacemaker courts. While the precise reason for the former development is unclear, it may reflect the ease with which IRA tribal courts can be established when compared with the effort needed to determine tribal laws and traditions long unused or lost. There are clear policies concerning IRA tribal courts within the Bureau of Indian Affairs, while no policies exist for assisting in the establishment of traditional courts.

It is conceivable, as well, that a lessening of traditional religious influences within tribal communities has also contributed to the inclination toward establishing tribal courts under the Indian Reorganization Act, rather than traditional courts, which have more cultural roots.

The Indian Civil Rights Act of 1968,26 with its due process requirements, appears to be compelling the development of a more Anglo-American legalistic format. One also might suspect that the legal experts available to assist tribes to establish tribal court systems are trained in Anglo-American jurisprudence to such an extent that their tendency is to recommend forms and legal processes taught at conventional law schools.

It is clear that the IRA tribal court system, operating under tribal law and order codes or constitutions, dominates the Indian justice picture in the United States, and that there is obvious preference on the part of American Indian governments for this model. In addition, it would appear that this version of "tribal courts" possesses the most promise for and attracts the most interest from Aboriginal people in Canada. As well, the tribal court models sanctioned under the Indian Reorganization Act have the flexibility to incorporate and implement traditional methods of dispute resolution. For that reason, it is our conclusion that they should be examined more closely in order to determine the utility of that model for Manitoba’s Aboriginal people.

One of the noteworthy issues relating to the American tribal court system is its dependency on U.S. federal legislation, thereby rendering it subject to a non-Aboriginal institution. Congressional agendas, initiatives and enactments could easily override any Aboriginal interests. We were advised by several American observers that this jurisdictional superiority occasionally has been a sore point between Aboriginal people and the United States government. We have more to say about the implications of this later. TOP

 

Tribal Court Jurisdiction TOP

Tribal courts created pursuant to the Indian Reorganization Act are not considered as having inherent jurisdiction. The jurisdiction which they possess is determined by review of the legislative enactment which creates it, whether that is the tribe’s constitution or its law and order code. Three issues of jurisdiction which are present with respect to all courts—i.e., jurisdiction over the territory, jurisdiction over the person and jurisdiction over the subject matter—are more complex when it comes to tribal courts, due to the fact that they function within a partially sovereign enclave, with different values, traditions and culture, all within a sovereign country with its own values, culture and traditions sometimes in conflict with those of the various tribes.

Territorial Jurisdiction

Most tribal courts are expressly limited to matters that arise within the boundaries of the reservation. This limitation emanates either from the provisions in the tribal constitution establishing the court or in the tribal legislation passed to flesh out the court’s mandate. Despite this fact, a number of tribal courts actually exercise jurisdiction over off-reservation events. This can arise in one of several ways:

• Through an unofficial arrangement with local municipal authorities and their police to transfer minor criminal cases involving tribal accused where the offence occurred in town.

• In the enforcement of tribal hunting and fishing laws against tribal members harvesting outside their reservation lands but within their treaty territory with the approval of the state.

• In the retaining of jurisdiction over tribal children living off-reservation pursuant to the provisions of the Indian Child Welfare Act of 1978.27

Some tribal constitutions and codes, particularly those revised in recent years to move away from model codes prepared by the Bureau of Indian Affairs, do not contain any territorial limitation. These tribal courts are not excluded automatically from exercising jurisdiction over off-reservation activities. The ability of a tribal court to exercise such authority, however, is unclear in other than child welfare matters.

It is important to realize that although the term most commonly used is "Indian reservation," the relevant legal expression for identifying the geographical limits of tribal authority is "Indian Country." This latter phrase was defined legislatively by Congress in 1948:

Except as otherwise provided in sections 1154 and 1156 of this title, the term “Indian Country”, as used in this chapter, means

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation,

(b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and

(c) all Indian allotments, the Indian title to which have not been extinguished, including rights-of-way running through the same.28

The import of this definition is that it creates a presumption that "Indian Country" included all land, regardless of ownership, within the exterior boundaries of federally recognized Indian reservations. Lands allotted to individual tribal members, thereby rendering them legal owners of the land to the exclusion of the tribe and other tribal members, a common practice for many decades as a result of the Dawes Act,29 as well as lands held for the tribe in common, fall within the jurisdiction of the tribal governments and its courts. In addition, lands that have been leased, alienated or subject to easements for the benefit of non-Indians, corporations and even public authorities will remain under tribal authority as long as they are inside the exterior borders of the reservation.

Determining the exact boundaries is not always an easy task, in light of extensive surrenders and congressional declarations of surplus Indian lands over the years.30 Although the definition of Indian Country was designed originally for criminal purposes, the courts have concluded that it also applies to tribal court and tribal civil jurisdiction.31 As a result, tribal courts may possess territorial jurisdiction over lands that are not owned by or for the tribe or in the possession of the tribe, as long as they can be said to be part of Indian Country.

Personal Jurisdiction

The area of jurisdiction over the person is somewhat unsettled at the present time. Again, a number of tribal courts are limited by their tribal constitutions or codes either to tribal members only, or to a tribal member and another party where the latter voluntarily accedes to the jurisdiction of the tribal court. These limitations are self-imposed by the tribes, as they are not required by U.S. law, although the Bureau of Indian Affairs has fostered this form of restraint. Tribal courts not fettered in these ways still have limits on their personal jurisdiction that have been imposed by Congress or tribal court decisions.

Civil Cases

The jurisdiction over the person is largely unlimited in civil matters as long as the legal event, contract, etc. which forms the basis for the civil dispute was formed or occurred within the reservation. This jurisdiction clearly includes cases involving tribal members and Indians from other tribes.

The law is exceedingly complex when it comes to civil jurisdiction in relation to non-Indian litigants, however, as jurisdiction in the tribal court is affected by the precise nature of the land on which the event occurs, the degree to which there is a tribal interest involved in regulating that matter, who exactly are the parties and the impact of Public Law 280 of 1953. Tribal courts make the initial determination as to whether tribal jurisdiction exists in the specific situations at hand. The federal courts, however, have asserted the power to exercise judicial review of such a decision.32

Numerous cases have been litigated over the last 40 years on this precise topic, since the United States Supreme Court opened the modern era of federal Indian law with its decision in Williams v. Lee 358 U.S. 217 (1959).33 The court concluded that exclusive jurisdiction rested with the Navajo Tribal Court, rather than the Arizona Supreme Court, in an action brought by a non-Indian to enforce a debt under a contract entered into on the reservation with the Indian defendant. In reaching its decision, the court declared that this result was justified on the grounds that it was necessary to protect tribal self-government. The test to determine federal jurisdiction over a matter was whether the matter was an essential feature of the tribe’s right to self-government.

The Supreme Court has since upheld a tribal cigarette tax on sales to non-Indians34 and a mineral tax on companies operating on reservation lands even when they already were paying royalties under petroleum leases.35 In the latter decision, the court declared that tribes retained inherent sovereign power as governments to exercise most forms of civil jurisdiction over non-Indians within their territory (i.e., to impose taxes), while also retaining their capacity as landowners (i.e., to collect royalties). The court went on to say:

To state that Indian sovereignty is different than that of Federal, State or local Governments, does not justify ignoring the principles announced by this Court for determining whether a sovereign has waived its taxing authority and we perceive no principled reason for holding that the different attributes of Indian sovereignty require different treatment in this regard.36

The court has also sustained business taxes on non-Indian corporations,37 while striking down state taxes on tribal royalty interests in mineral leases to non-Indians38 and state income taxes on an Indian in Indian Country.39

The rules are more convoluted in relation to non-Indians on non-Indian land within Indian Country. The primary standard outlined by the Supreme Court to support tribal jurisdiction is the "tribal interest test" as articulated in Montana v. United States. The question to be answered is whether "the conduct of non-Indians on fee lands within its reservation ... threatens or has some direct effect on the political integrity, the economic security, or the health and welfare of the tribe."40 Applying this test has justified tribal zoning ordinances over non-Indians on non-Indian land,41 tribal health and safety laws,42 and tribal regulation of non-Indian lands bordering a reservation lake.43 Nevertheless, the test can be applied only on a case-by-case basis. Thus it is hard to draw clear demarcations around tribal civil jurisdiction over non-Indians on non-Indian lands within Indian Country.

The Montana Test means that the tribe can effectively assert civil jurisdiction over non-Indians, including Bureau of Indian Affairs employees, if any of the four following factors is present in the case:

• A consensual relationship exists in which the non-Indian individual or corporation has chosen to work with the tribe, enter into contracts with the tribe, lease reservation land, acquire a tribal licence, or in some other way voluntarily enter into dealings with the tribal government or tribal members.

• The matter affects the political integrity of the tribe, making it vital for the tribe to assert this jurisdiction (e.g., in relation to conduct that disrupts tribal elections).

• The conduct challenged affects the economic security of the tribe.

• The activity affects the health or safety of the tribe.

It is possible to have a situation in which concurrent jurisdiction may exist between state and tribal courts in reference to non-Indians. This would occur on land that was once reservation land but is no longer, but is surrounded by reservation land. In this situation, state courts would have criminal jurisdiction and civil jurisdiction. The tribe has no criminal jurisdiction, but could have concurrent civil jurisdiction if the Montana Test is met.

Where there is no tribal jurisdiction present and the matter is civil in nature, the state courts clearly will have authority, although it is possible for limited federal court jurisdiction also to be present.

Criminal Matters

Criminal jurisdiction, by comparison, is less complicated. The state of the federal law is that tribal courts can handle cases involving offenders who are tribal members, no matter who the victim is. The Supreme Court has held, however, that tribal courts have no jurisdiction over non-member Indian offenders even where they commit crimes on the reservation.44

Jurisdiction over Indian offenders from other tribes who committed crimes within the territory of the tribal court had been assumed by tribal courts and tribal leaders since the beginning of the tribal court system. However, a conflict arose between the Eighth and Ninth Circuit Courts of Appeals of the United States. The U.S. Supreme Court resolved that conflict by deciding, in a 7–2 verdict, that tribal courts created by tribal constitution have no jurisdiction over Indians who are not tribal members.45

The tribe and various interveners, including the U.S. government, had argued that tribal courts always had exercised such jurisdiction. The majority in the court rejected that argument and decided that tribal courts lacked jurisdiction over such accused because non-member Indians had no voice in the tribal government or in the development of tribal law, and had no right to serve as a juror.

The Supreme Court reiterated the long-standing nature of tribal sovereignty and its importance, but limited its scope in criminal matters to tribal members on the basis that they "consent" to its authority. The decision contained a vigorous dissent by Justice Brennan, with Justice Marshall concurring.

The effect of this judgment is that a jurisdictional void has been created. Neither federal nor state courts have jurisdiction over minor criminal offences (i.e., those not committed on reservations), whether by tribal members or not. The majority of the court appear to doubt that a problem really will exist, but even if it does, then it simply leaves this difficulty for Congress to resolve.

The Bureau of Indian Affairs has responded with interim suggestions. Since this judgment does not apply to Courts of Indian Offenses, by virtue of the terms of the Code of Federal Regulations, the Bureau of Indian Affairs has offered to appoint all tribal judges as Court of Indian Offenses judges to vest them with this jurisdiction. Another possibility under consideration is for tribes to sign agreements with each other, extending jurisdiction over their own members to the other signatories. A number of tribes have already begun the process of lobbying for congressional action to overturn the judgment and expressly vest jurisdiction over non-member Indians in all Indian governments and courts.

The non-member Indian accused may not necessarily escape justice, as the federal Attorney General’s department can initiate a prosecution in federal courts regarding federal felonies through the General Crimes Act.46 Actions that constitute a felony under state law can also be prosecuted in federal courts by virtue of the Assimilative Crimes Act.47

The difficulty for tribes primarily stems from the reluctance of the Attorney General’s department to prosecute. As there is no legal action available to compel prosecutions, tribes must rely upon their ability to entice prosecution through preparing overwhelming evidence in favour of conviction.

Non-Indians who commit misdemeanours on Indian reservations are also free of tribal jurisdiction. While the federal court will have jurisdiction under the General Crimes Act and the Assimilative Crimes Act, regarding federal and state crimes, respectively, there is an even greater difficulty in encouraging the U.S. district attorneys to prosecute such offences.

Special considerations apply as a result of Public Law 280 as many tribes have lost criminal jurisdiction over Indian offenders in California, Alaska, Oklahoma, Washington, Nevada, Montana and Oregon. This does not apply, however, to all tribes in these states. In addition, it now is possible as a result of provisions within the Indian Child Welfare Act of 1978 for a state to retrocede its jurisdiction to the tribe, which has been done in reference to at least one Indian government in Nevada to date. Where the tribal court does not have jurisdiction, then the authorities must work with the local county prosecutor to pursue the charge in state courts.

Subject Matter Jurisdiction

In theory, tribal courts have full civil jurisdiction in all spheres of law. Some tribal codes have set maximums on the quantum of damages available from their courts, thereby encouraging litigants in major contract and tort lawsuits to opt for the state court system. Likewise, some tribal codes have not developed to encompass all relevant branches of law, while the tribal courts either have not crafted an "Indian common law" to fill the gap, or are precluded from acting by virtue of tribal provisions which establish the court’s jurisdiction. Other tribes have met this problem of shortcomings in their codes through the device of "incorporation by reference." That is, when the tribal code is silent it directs the tribal court to apply external law as tribal law. The court then borrows the most appropriate concepts from the American common law, or applies the relevant state or federal statutory provision.

While Congress apparently has the constitutional authority to seize jurisdiction regarding any civil matter that it wishes, it has chosen so far not to do so in any field of non-criminal substantive law, insofar as tribal courts are concerned. Congress has imposed, however, significant restraints on tribal courts through the passage of the Indian Civil Rights Act of 1968 (ICRA). Although this statute is oriented primarily toward the criminal sphere, it does affect tribal civil jurisdiction in section 1302 by declaring:

No Indian tribe in exercising powers of self-government shall:

(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;...

(5) take any private property for a public use without just compensation;...

(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;

(9) pass any bill of attainder or ex post facto law;...

These provisions impose guarantees of certain civil liberties in the passage and administration of tribal laws, but they do not remove the power to enact law on any particular subject.

Therefore, it would seem that the only limitations on substantive tribal civil law or on tribal courts in civil matters are those restrictions that are self-imposed by Indian tribes. As such, these restrictions can be removed whenever the tribes decide.

Criminal law jurisdiction is confused by congressional intervention and by tribal law. Only tribal courts have jurisdiction to enforce tribal offences, so flight by an offender can lead to successful avoidance of prosecution unless the state is prepared to return the offender.

The confusion began when the U.S. Congress removed certain designated "major crimes" in 1885 from tribal jurisdiction where the offender was an Indian. This was done to reverse the 1885 U.S. Supreme Court decision in Ex parte Crow Dog.48 In that case the court had held that tribal law, with its non-incarceral penalties, governed in a case of murder by an Indian of another tribal member. The offences set out in the Major Crimes Act were to be tried in federal court and now include the following 16 offences:

Any Indian who commits against the person or property of another Indian or other person any of the following offenses, namely, murder, manslaughter, kidnapping, maiming, rape, involuntary sodomy, carnal knowledge of any female, not his wife, who has not attained the age of sixteen years, assault with intent to commit rape, incest, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, arson, burglary, robbery, and a felony under section 661 of this title within the Indian Country, shall be subject to the same law and penalties as all other persons committing any of the above offenses within the exclusive jurisdiction of the United States.

Tribal courts appear to have concurrent jurisdiction with federal courts in these areas, as long as there is no restraint present in the tribal code or constitution. In theory, this would mean that tribal courts could have full jurisdiction regarding criminal law subject matter, with practical limitations entering the picture only as a result of personal and territorial jurisdictional limitations. Many tribal codes and constitutions contain self-imposed limitations restricting the scope of tribal jurisdiction to minor crimes and misdemeanours.

The Major Crimes Act confers federal jurisdiction over only those crimes which are set out in that Act. State laws do not apply on Indian reservations except where Public Law 280 applies and that law does not apply in every state. It is possible that in states where Public Law 280 does not apply, or where tribes have regained their jurisdiction from the state, some criminal acts not on the Major Crimes list or not covered by a tribal code would fall into a legal vacuum. State criminal law would not apply of its own force on reservation land (except in a state where Public Law 280 applies and the state has not relinquished its jurisdiction). This problem could be rectified by tribes amending their tribal laws so as to authorize full federal jurisdiction over any such gaps in the law by applying traditional law or Indian common law, or by referential incorporation of federal or state law. To date, apparently no tribes have felt the need to do so. TOP

 

The Indian Civil Rights Act of 1968 TOP

The Indian Civil Rights Act 49 of 1968 imposes a variety of restraints on tribal law and requires tribal justice systems to comply with American concepts of due process and fairness. The Act applies to any group of Indians that is "subject to the jurisdiction of the United States and recognized as possessing powers of self-government"50 and extends to "any Tribal Court or court of Indian offense."51 It further governs any other tribal bodies and regulates not only legislative and judicial functions, but also the exercise of executive powers.52

In addition to the civil implications described earlier, the ICRA has specific provisions that alter criminal jurisdiction. The Act provides:

s.1302 No Indian tribe in exercising powers of self-government shall

(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;

(3) subject any person for the same offense to be twice put in jeopardy;

(4) compel any person in any criminal case to be a witness against himself;

(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;

(7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of six months or a fine of $500, or both;

(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.

The Act was amended in 1986 to increase the scope of criminal penalties under tribal law to a maximum of one year’s imprisonment, or $5,000 fine, or both, per offence.53 While there does not appear to be an outcry by tribes for greater punitive authority, such limitations would appear to impose a restraint upon the efforts of tribal governments and their courts, should they wish to undertake to address serious criminal offences involving violence, narcotics, pollution and commercial crime, where a much larger fine or longer term of imprisonment might be more appropriate. The rationale for such limitations is difficult to perceive, but it is quite probable that the existence of federal authority to prosecute major crimes occurring on Indian reservations militates against the necessity of having greater penalties available for tribal courts to impose. From our visits to some of the tribal courts and after hearing from their representatives at the Tribal Court Symposium in Winnipeg organized by the Inquiry, it is apparent that, on occasion, the inability of tribal courts to impose more suitable penalties for a serious crime can have serious consequences.

In one instance, we were informed that a tribal police officer of the Navajo Tribal Police Force had been killed while pursuing an offender. The offender was caught and the matter was investigated by the FBI in accordance with the Major Crimes Act. Their conclusion was that they could not prosecute because they felt there was insufficient evidence to convict. Tribal authorities, not pleased with that decision, decided to prosecute the culprit anyway with a breach of their tribal code (which they were entitled to do), and a conviction was obtained. The court, however, was unable to impose anything other than the maximums set out above.

We also have been told that the presence of the maximums has resulted in the tribal courts circumventing the limitations in imaginative, although questionable, ways. We were told that tribal court judges impose consecutive sentences for multiple convictions arising out of a single transaction, a practice different from that followed in Manitoba courts. Generally, the established principle in our courts, when incarcerating an individual for separate offences arising from a single incident, is to sentence that person to concurrent terms of incarceration.

As a matter of principle, it would seem quite in order not to have unduly low maximum sentences apply only to tribal courts, provided that there are sufficient safeguards to protect the rights of an individual to a fair and thorough hearing before an impartial, adequately trained judge and a properly resourced tribunal, as well as a process of appeal to enable an accused to have his or her case reviewed.

The Act guarantees an accused in a tribal court proceeding the right of access to the federal courts by way of a writ of habeas corpus "to test the legality of his detention by order of an Indian tribe."54 Although this provision appears limited in its scope, the very first case under the ICRA concluded that a U.S. district court had jurisdiction to invoke civil remedies to prevent the exclusion by the tribal council of a white lawyer who was director of the Navajo Legal Services from the reservation.55 A number of subsequent cases expanded upon this interpretation of the ICRA to find an implied waiver of tribal sovereign immunity that permitted the remedies of injunction, declaratory relief, damages and mandamus. A wide variety of internal matters from elections to membership were deemed reviewable pursuant to the Indian Civil Rights Act by federal courts.56 However, even this extension of federal judicial supervision was authorized only after all tribal remedies had been exhausted. As well, the similarity in language between the ICRA and the American Bill of Rights does not appear to have resulted in the incorporation of federal jurisprudence regarding the similarly worded constitutional provisions into tribal court decision making.

The intrusive nature of the Indian Civil Rights Act has been ameliorated somewhat by the decision of the United States Supreme Court in Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). The court was faced with the difficult choice of upholding tribal sovereignty or striking down a provision in a tribal ordinance somewhat similar to the former subsection 12(1)(b) of the Indian Act in Canada.

A provision of the Santa Clara membership code provided that children of a woman who married outside the tribe were denied membership, while membership was extended to children of a male member who married a non-Santa Claran. An action was brought by two women, one a member of the Santa Clara Pueblo who had married a Navajo, and the other, her daughter, who both argued that the membership rule was discriminatory on the basis of both sex and ancestry, contrary to the equal protection clause of the ICRA. The district court concluded that it had jurisdiction as the ICRA implicitly had waived sovereign immunity, but it rejected relief as it felt that membership rules were vital to the tribe’s survival as a cultural and economic entity.

The Court of Appeals for the Tenth Circuit reversed, as it believed the tribe’s interest was insufficient in the circumstances to support sexual discrimination. The Supreme Court overturned this latter decision. Justice Thurgood Marshall, speaking for the majority, stated:

As separate sovereigns pre-existing the Constitution, tribes have historically been regarded as unconstrained by those constitutional provisions framed specifically as limitations on federal or state authority.

He went on to declare:

Indian tribes have long been recognized as possessing the common law immunity from suit traditionally enjoyed by sovereign powers. It is settled that a waiver of sovereign immunity “’Cannot be implied but must be unequivocally expressed.‘” Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief. In the absence here of any unequivocal expression of contrary legislative intent, we conclude that suits against the tribe under the ICRA are barred by its sovereign immunity from suit.

The court concluded that the governor of the tribe, as the petitioner, did not personally benefit from the tribe’s immunity. Justice Marshall went on to consider the argument that civil remedies were authorized implicitly under the Act.

The judgment very clearly articulates the view that any infringements upon the authority of tribal courts, or the right of Indians to govern themselves, should not be imposed lightly without obvious expressions of legislative intent. This deference to tribal courts as "appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians" was supported by a footnote reference to the final report of the American Indian Policy Review Commission and its findings that in 1973 there were 117 operating tribal courts which handled approximately 70,000 cases. The majority reached the opinion that only express congressional intervention could or should be the basis for allowing any further intrusions on tribal sovereignty in the form of civil actions in a federal forum against a tribe or its officers.57

Congress has had occasion to reconsider the ICRA and has chosen not to expand the jurisdiction of the federal court system beyond the writ of habeas corpus.

The Indian Civil Rights Act has also had a number of other impacts upon tribes. The Act contained provisions to allow those states that had assumed jurisdiction over Indians and Indian reservations under Public Law 280 to return it to the various tribes and to the federal government.

The civil rights guarantees, particularly equal protection and due process, have also had an obvious effect on tribal court procedures. While it was not uncommon for search warrants to be used by tribal and BIA police in the past, section 1302(2) of the ICRA clearly requires that tribal judges alone must authorize search warrants and that those warrants must be very precise in their terms. This has required tribal police and judges to be more careful and formal, and to reflect the general American approach in this area.

The Act also compels all criminal trials to be conducted in open court using an adversarial process.58 While the accused has a right to counsel,59 there is no obligation on the tribe to create a free legal aid or duty counsel scheme. Nevertheless, some tribes, such as the Yakima, have felt the need to provide legal services to indigent accused, at tribal expense. This is due, in part, to the standard practice of tribes using legally trained prosecutors to conduct all adult cases, but the presence of defence counsel further enhances the necessity for legally trained tribal prosecutors.

Furthermore, the Act extends a very broad right to the accused to demand a jury trial in any case in which imprisonment could result from conviction on that charge. Needless to say, this is a far more extensive right than that possessed by Canadians. TOP

 

Tribal Court Administration TOP

The normal elements of a Western judicial system are found in American Indian tribal courts.

Volume

Tribal court systems vary quite dramatically, depending upon the population of the reservations they service, the demand for services, the funding available, the extent of jurisdiction possessed by the courts and the philosophical orientation of the tribal governments. For example, the latest national figures available from 1983 indicate caseloads ranging from over 70,000 cases for the judicial system of the Navajo Tribe, to a low of three cases handled by the Jamestown Klallam Tribal Court.60 The Yomba Shoshone Tribe, which is serviced by the Fallon Paiute Shoshone Court, had only one civil case in 1983.61 Given such widespread disparity in workloads, it is not surprising to see significant differences in staffing. A similar range in population size also is apparent, with 1985 data from the Bureau of Indian Affairs indicating a high of 166,665 Navajos62 to a low of 64 members of the Shoalwater Bay Indian Tribe.63 Only five tribes had over 10,000 people in 1985. However, it is quite common for American Indian tribes to have several thousand members. On the other hand, there are a surprising number of quite small communities of less than 500. Some of these participate in regional justice systems, such as the Northwest Intertribal Court System of Washington (serving 13 tribes in 1985) and the Western Oklahoma Court of Indian Offenses (serving 18 tribes in 1985), while others enter into a contract with a larger neighbouring tribe to provide a judge that will enforce their own laws (e.g., the Havasupai Tribe uses the chief judge from Fort Apache on a part-time, case-by-case basis.)64

Nevertheless, there are a number of tribes with populations very similar to Indian First Nations in Canada who operate their own, fully functioning court system. The size of the land base also extends over a broad spectrum, with the Navajo again having the largest reservation with over 16 million acres (or some 25,000 square miles)65 to a low of 2.12 acres.66

Judges

Numbers of Judges

There are approximately 360 tribal court judges in the United States. Nine tribal courts have more than four judges, 33 have four, 22 have three, 26 have two and 44 have one.

Some courts are very busy and their judges work full time. Other judges work on a part-time, as required, basis. Some are employed on a per-diem basis. This reflects the tremendous variations in workloads apparent from the information on volume of cases mentioned earlier. While the Navajo Tribe had several judges on staff, even the Yomba Shoshone Tribe, which had only one civil case in all of 1983, engaged its own judge to hear the matter. Such tribes do not have a judge of their own but they do have their own civil and criminal codes. They usually engage a judge from a neighbouring tribe to attend, to apply their law and to hear their cases when they arise. Some, however, engage a lawyer from a neighbouring community (not necessarily an Aboriginal one) to sit as a judge on a part-time basis.

Almost every tribe has its own tribal codes containing civil and criminal laws passed by the tribe’s council. There may be other codes, as well, dealing with particular subject matters. The codes are similar to statutes passed by provincial and federal governments. They form the laws of the tribe that the judges interpret and apply. It was apparent to us that the fact that tribal court judges apply tribal law rendered their work considerably more meaningful to them and to those who appeared before them. Chief Judge Manuel, of the Pima-Papago Tribe on the Salt River Indian Reservation, told us that he regularly reminds those people from his tribe appearing before him that the law he is applying is their own law.

Selection of Judges

Judges of tribal courts are selected in a variety of ways, depending upon the mechanism preferred by each tribe or court district. The method usually is specified in the tribal code. Some methods of selection about which we were told included:

• By Authority of Office. Some Indians such as the Pueblo of New Mexico and Arizona extend judicial authority to the elected or traditionally recognized governor or lieutenant governor of their tribal council.

• By Appointment. In some tribes, judges are appointed by the tribal council or by a leading tribal official. On the Hopi and Navajo reservations, judges are appointed by the tribal chairman, although judicial appointments have to be approved by the tribal council. They are appointed for a probationary period usually of one year. If their appointment is confirmed they have indefinite tenure.

• By Election. Some tribal court judges are elected for a term of years. Although election to tribal council may take place more often, the judges usually all stand for election during tribal elections every three or four years.

• By Engagement. The Northwest Intertribal Court System in the state of Washington has a board of directors made up of delegates appointed by the 13 tribes served by its judges. That board advertises for candidates and hires its judges on a contract basis. As mentioned earlier, some tribes also hire local lawyers to act as tribal judges on a per-case or per-diem basis.

• By Contract with Another Tribe. Some smaller tribes, which do not have a judge of their own and which may not have sufficient resources or workload to employ or justify a full-time judge, contract with a neighbouring tribe to employ the latter’s judge on a per-diem basis whenever the former has cases to be heard. For example, the Havasupai Tribe has an agreement with the Fort Apache Reservation whereby a Fort Apache judge will attend on the Havasupai Reservation from time to time to hear cases arising there. The Fort McDowell Indian Tribe, a small tribe near Phoenix, has a similar agreement with the Salt River Tribal Court.

• By Government Appointment. Where Courts of Indian Offenses still exist, judges are appointed by the Secretary of the Interior. In practice, the tribal council usually forwards the name of the person it wishes the secretary to appoint.

Qualification of Judges

Most tribes do not impose any academic requirements on those seeking judicial office. They usually require judicial candidates to be members of the tribe and to have lived on the reservation for a period of time prior to appointment or election, but this is not always the case.

Some tribal officials with whom we spoke strongly favour retaining non-legally trained judges. Others suggest that the time may come when judges will have to receive formal legal education before being appointed. The decision appears to be a matter left to the inclinations of each tribe, but, for the most part, it is safe to say that tribal judges generally are not trained as lawyers, although several are.

Tenure of Judges

Judges remain in office until their term expires. Once a tribal court judge’s term expires, he or she then must be reappointed or again run for election. Of the 145 tribal courts for which there is information,67 the single most popular term of office, as chosen by 65 tribes, is for a period of four years for the chief judges. A further 26 tribes give their chief judges only one-year terms, and 15 tribes have opted for two years. Ten tribes appoint their chief judges for three-year terms, while one tribe uses a five-year period, four use six years and another tribe makes a 10-year appointment. The remainder give open-ended or indefinite appointments (21 tribes), subject to continuing good behaviour, or lifetime appointments (two tribes).

There is some mechanism in each court for the removal of a judge for misconduct. In some cases, they may be removed by a vote of the members of the tribe. In other cases, they may be removed by a vote of the tribal council, or, as in the case of the Northwest Intertribal court, by a vote of the corporation’s board of directors. It appears, therefore, that most tribes possess the authority to dismiss a judge from office. As with courts generally, the grounds for such removal are couched in vague language. There are, however, few reported instances of tribal court judges being discharged for dishonesty or malfeasance.68

One issue which we noted is that there appears to be a higher turnover of tribal court judges than is the case for the non-tribal judiciary. Many tribal court judges resign before completing their terms of office. A variety of factors, including low salaries, other, more attractive career opportunities, and the stresses and difficult nature of performing judicial functions in smaller, closely knit communities, results in this high turnover.

Courts of Appeal

Each tribe has its own appeal process to enable litigants to have a trial judge’s decision, or the decision of a jury, reviewed. They each have their own court of appeal. We encountered different methods of selecting courts of appeal:

• Where there are more than three judges in a court, the three who did not sit on the case as the trial judge comprise the court of appeal. On occasion a judge from another tribal court may be asked to take one of the appeal positions.

• Where there are three or fewer judges, a judge or judges from another tribal court will be asked to attend to sit with the others who did not hear the case, and they will comprise the court of appeal.

• People from outside the community are appointed as members of an appellate branch to sit from time to time as needed. Sometimes they are tribal members, but this is not invariably the case. On occasion, local non-Aboriginal lawyers are members of the tribal court of appeal. In the Hopi system the court of appeal is made up of three legally trained tribal members who no longer live on the reservation. One is a judge in a state court, one is a practising lawyer and the other is a university professor. This court of appeal sits on the reservation from time to time.

• In the Navajo Court, a separate court of appeal with three full-time judges sits to hear all appeals.

Court Personnel

Attorneys

Both legally trained and lay attorneys appear in American tribal courts. The use of the tribal language or English is permitted during any court proceedings, so that those fluent in both have some advantage when they appear as advocates.

While some prosecuting attorneys are lawyers, others are not, but all have some legal training or related experience in other parts of the justice system, often as police officers or as counsellors. Where there were prosecutors without training as lawyers, it was generally the case that a lawyer was available for consultation on an as-needed basis to advise the prosecutor on legal issues as they arose.

Some tribal governments have extended rights of appearance as a courtesy to all attorneys who are licensed to practise in the state in which the reservation is located. Other tribes extend this privilege to all lawyers who are certified by any state. A number of tribes formally demand that a lawyer pass a bar examination created by them on tribal and federal Indian law before being able to appear in a tribal court.69 An unknown number of tribes authorize the chief judge of the tribal court to control the admission process, which appears to result in an informal, oral interview system for admission.

Eligibility also can differ somewhat, as many tribes insist upon a degree from a law school approved by the American Bar Association, while many others do not. The apparent intent underlying the latter situation is to allow members of the tribes who are self-taught in their own law, or who have graduated from paralegal programs offered by community colleges, to have the opportunity to become "tribal advocates," which is the most commonly used term for defence lawyers and duty counsel. This can create a significant source of income for a number of people on larger reservations in criminal, family and minor civil matters.

The presence of a tribal bar exam helps to ensure that all counsel appearing in court will be fully knowledgeable in the substantive laws that govern life within the community, as well as tribal court procedure. This not only aids the judiciary in reaching proper decisions, but it also fosters respect for tribal law. Because any person appearing in the tribal court must be familiar with tribal law in order to pass the tribe’s bar exam, this effectively eliminates the likelihood that state law will be argued blindly by attorneys who otherwise might assume that it applies automatically within the reservation.

The results of having a tribal bar exam process can be surprising. In one case we were told about, a retired judge of a state supreme court was denied the right to appear in a tribal court for having failed the tribal bar exam.

It also can lead to the creation of an active association of tribal practitioners. The Navajo Bar Association has over 250 dues-paying members, consisting of both Indians and non-Indians, many of whom do not have law degrees. The bar association prepares and administers the tribal bar exam, which is offered annually. It also conducts an annual conference on Navajo law, law reform proposals and developments in federal law as it affects American Indians. It further plays a role in seeking changes in the law and in court administration. The Navajo Bar Association clearly is atypical, due to the size of the Navajo population. Nevertheless, its experience is interesting in that its development may indicate future trends for other tribal courts.

Support Staff

In addition to employing over 360 judges, tribal courts employ over 800 other personnel, consisting of court clerks, administrators, bailiffs, prosecutors, secretaries, probation officers, juvenile counsellors, public defenders and detention officers. While few systems possess all these as separate job functions, the vast majority have a few key people who perform several tasks. The general pattern, for example, appears to be to have one or more employees who provide secretarial services to the judiciary, who also act as court reporters, process all dockets, distribute court forms, and deal with the public and the litigants. It also is common to have a tribal prosecutor who not only conducts criminal matters, but also acts for the tribe in legal affairs, advises the council on legal issues and provides legal direction to the tribal police. Some tribes cannot offer probation and counselling services, due to funding restrictions.

Tribal court clerks and administrators have formed a national association to represent their interests, and to organize and provide ongoing training for members. We attended one of the regular conferences and educational programs for court administrators organized by the Department of the Interior. The participants discussed matters ranging from the keeping of court records to the empanelling of a jury. Experienced educators, administrators and judges, mostly Aboriginal, presented and discussed the various topics. The delegates were encouraged to ask questions and to share their experiences in dealing with the various issues under discussion. The program was a very impressive indication of how tribal residents, with little formal training, can develop the skills needed to administer all aspects of a court system.

Continuing Education

Since many tribal court personnel do not have formal legal training before their appointment to the bench, before being hired as staff or before their admission to the bar, there is a need to obtain training on tribal law and court procedure. The influence of what is called in the United States "federal Indian law" on tribal life also requires that tribal judges be very conversant with the law that affects their court systems. The provisions of the Indian Civil Rights Act have compounded this need to have a sophisticated knowledge of the law to function effectively as a tribal court judge or lawyer. In addition, the rapid pace of change in the law, especially as a result of the high number of circuit courts of appeals and Supreme Court decisions on federal Indian law, necessitates the availability of continuing education for tribal judges, advocates and prosecutors.

Unfortunately, the relatively small size of most tribal court systems militates against operating local continuing education programs. Many tribal court judges are compelled to learn on the job, to seek advice from more experienced individuals and to teach themselves. Formal assistance, however, is available to some degree through several avenues.

The National American Indian Court Judges Association (NAICJA), which is based in Washington, D.C., offers occasional two-day conferences geared toward the needs of its members. These conferences tend to provide an overview of a large number of current issues affecting tribal judges, from recent legal developments to matters of stress or relations with tribal governments and outside agencies.

The National Indian Justice Center, near San Francisco, provides an extremely active and varied education program. In addition to conducting week-long intensive seminars on specific themes, it produces highly detailed manuals on several topics.

The seminars and the training manuals are available to anyone. Tribal court judges, clerks, advocates, police officers, social workers and others regularly take advantage of these opportunities. There usually is one seminar per month offered in different regional centres, with programs frequently repeated. This permits new members of tribal court systems to attend programs of interest relatively shortly after their selection, while experienced individuals can choose from more advanced or specialized offerings.

Both organizations have their own boards of directors, consisting of experienced tribal court judges. They rely primarily upon the Bureau of Indian Affairs for funding for their operations and to provide subsidies to judges to attend their programs. Both also make extensive use of judges as instructors.

Tribal Court Facilities

The facilities available for tribal courts vary dramatically. At one end of the scale are those tribes that have constructed buildings just to house courtrooms, judges’ chambers and office space for other court staff. At the other end are tribes that have no permanent facilities, and court is held in the tribal council meeting room or a place used for other purposes. The judges and court staff usually then share offices with other tribal employees. Some tribal judges who work on a part-time basis have no chambers at all. There are, as well, tribal courts that have space dedicated for court personnel, but in buildings that house a variety of other users.

The quality of court facilities varies widely. A number of facilities are regarded by the Bureau of Indian Affairs as being inadequate. Few have court libraries, and the law books which do exist usually are located in judges’ or attorneys’ offices.

Access to the Law

The standard practice is for tribal law and order codes to be available for purchase from the tribal government. They are usually in a mimeographed or photocopied style. While a special project conducted by Professor Ralph Johnson of the University of Washington has made tribal codes from across the country available on microfiche, there is no official repository where revisions can be made available on a regular basis. Only the Navajo Tribal Code appears to be marketed by a commercial publisher.

There also is limited access to tribal court decisions. The written pronouncements of the Navajo Supreme Court, and many Navajo District Court decisions, are available in commercially produced volumes. A select number of other important tribal court decisions can be found in the Indian Law Reporter, produced by the American Indian Lawyer Training Program Inc. (AILTP) of Oakland, California. This system relies upon counsel or judges to send judgments to the AILTP for consideration for inclusion in this monthly service.

The National Indian Law Library in Boulder, Colorado also receives some tribal court decisions. Nevertheless, most tribal court judgments go unreported and are available solely from the court concerned. This has limited the development of a distinct Aboriginal jurisprudence and has hampered the cross-fertilization of legal thinking among tribal courts.

Financing

Every court system requires adequate financial resources to provide sufficient personnel and physical facilities. The Judicial Services Branch of the Bureau of Indian Affairs is mandated to negotiate annual agreements with federally recognized tribal governments to provide funding in relation to salaries, benefits, administration expenses, training and related matters.

A continual complaint from the tribes and tribal judges is that the BIA contributions are insufficient to meet the current costs of operating these unique courts, or to permit their expansion and improvement.

Salaries for court personnel, including judges, are low in comparison to state and federal court systems. The salary range for judges is generally $25,000 to $35,000 per year. Few tribes offer pension plans or other such employee benefits to tribal court personnel. The room for financial advancement for judges and other court staff is limited, which can produce discouragement and staff turnover as individuals leave for more lucrative employment.

The U.S. government has not extended funding yet for the construction of sufficient and appropriate court facilities on many reservations. While some court facilities compare well to any which we have in Manitoba, most tribal court facilities are inadequate and not conducive to the maintenance of respect for a court. Similarly, funding generally is not available to allow most tribal courts to develop library collections. Some critical staff positions cannot be created. Relatively few tribes have probation officers, juvenile counsellors, family mediators, public defenders and other important staff resources available to accused and litigants.

Tribal governments do have some flexibility in how they allocate the funding that they receive from the Bureau of Indian Affairs for judicial services. In addition, tribes are free to supplement federal assistance from their own resources. Many tribal governments do provide additional funds to allow an expansion of services beyond what the BIA funding will permit.

Tribal courts can be a source of revenue. It is very common for tribal court judges to impose court costs in criminal matters where there are guilty pleas or convictions. Furthermore, tribal courts often use small fines as a sanction in lieu of, or in addition to, other criminal penalties. Revenue can be raised through civil actions through the imposition of filing fees to begin and maintain litigation, from fees charged for the purchase of forms and from the imposition of court costs against the losing party if the lawsuit goes to trial. Highway traffic fines are a significant source of "income" for some tribes who have major thoroughfares within their reservations. In some systems the fines provide revenue directly to the court, whereas in others the fines are assessed and paid to the general fund of the tribe. TOP

 

Conclusion TOP

Concerns Expressed about Tribal Courts

Tribal courts in the United States are a relatively recent institution, arising as they have from the Indian Reorganization Act of 1934. The leading example of tribal courts, to which most observers point when talking of its potential, the Tribal Court of the Navajo Nation, has been in existence as such only since 1959.

Prior to the development of tribal courts, and continuing to some degree to the present, traditional courts existed in some areas where tribes had maintained strong ties with their cultures and their past. These were courts which had developed directly from within the cultures and sovereignty of those tribes without government direction or involvement. They have a strong cultural orientation. There are relatively few of them.

Despite the stronger ties to traditions and custom of traditional courts, however, it is apparent that the statutorily based tribal court system has taken a strong hold in Indian Country. It is likely that the growth of tribal justice systems in the United States will be in the area of tribal courts, rather than in the area of traditional courts.

The deference paid to tribal justice systems and the support for tribal courts, in particular, shown by state and federal courts over the last 30 years have increased dramatically the authority, importance and workload of tribal courts. This has led to expectations and demands upon tribal courts that are higher than ever before. Tribal courts now must respond to a broader range of legal issues, requiring the interpretation and application of tribal law to situations which more traditional means of resolving disputes might not be able to address as adequately.

Tribal court judges now must be constantly aware of developments in the jurisprudence regarding federal Indian law. They are being called upon more often by tribal members to review administrative decisions of tribal governments and their agencies. Non-Indians and corporations are becoming more aggressive in utilizing tribal courts for debt collection and other remedies. Family disputes increasingly demand court resolution. As the assets of tribal members increase, so does the need for judicial involvement in the administration of estates and the division of matrimonial property. Civil cases dealing with millions of dollars are beginning to appear in this unique system.

All these developments generate an increase in judicial business, warranting the allocation of more resources. In fact, there has been an increase in federal government expenditures on tribal courts over the years, but tribal authorities point out that it has not kept pace with their needs. Recent developments also suggest that the impact of tribal court decisions is greater than ever before.

Tribal courts have been criticized for a number of reasons. There is the problem of an inordinate level of judicial turnover. Some suggest that as many as one-quarter to one-third of all judges leave office each year. This may be induced, in part, by the rather short tenure granted by tribal codes and constitutions. However, many tribal court judges resign even before the expiration of their terms in office. This may be occasioned by the relatively low salaries and limited benefits that accompany the position.

There is clearly a significant problem with stress. Being a member of a small community and sitting in judgment over neighbours, friends and relatives is inevitably a thankless and personally arduous assignment. Having limited funds available can result in unattractive working conditions and frustration with the lack of creative dispositional alternatives.

Tribal courts have been accused of appearing to be susceptible to local political interference, a charge which many tribal court leaders whom we met are addressing through tribal constitutional provisions which guarantee the separation of the judiciary from the legislative and executive arms of tribal government, and which are intended to provide for an appointment and tenure process for judges which is secure and fair. Such developments, which tribal court officials are pursuing with their tribal councils, appear to be the most obvious and effective ways to deal with such criticisms.

The nature of the workload in tribal courts has also changed to such an extent that it requires judges to be more knowledgeable about the relevant law. On the one hand, this has meant that some judges lack the desired level of legal education or training necessary to address some of the more complicated legal questions coming before their courts.

On the other hand, there is a danger of over-professionalization facing tribal courts. It can result in the exclusion of members of First Nations, as happened through an increase in the Navajo Bar examination standards such that no Navajo candidate was able to pass the bar exams in 1988. Placing a premium on professional training also may result in advocates and judges who are not steeped in traditional values or knowledgeable about customary law. Adopting a Western legal style with formal educational requirements can lead to a loss of Aboriginal uniqueness and much of the strength that tribal courts possess, particularly their informality and acceptance within the community.

Tribal judges, surprisingly perhaps, appear to have been hesitant to rely upon tribal customary law as a basis for their decisions. They appear reluctant to supplement tribal codes where necessary through creating their own brands of Aboriginal common law. However, this may be a reflection of the degree to which tribal members are satisfied with the manner in which legal issues are dealt with in their codes, or the fact that tribal courts still, to a large extent, are finding their own way. We must not forget that tribal courts are a relatively recent development.

The number of civil cases has increased significantly in recent years, in part induced both directly and indirectly by the Indian Child Welfare Act of 1978, but civil matters still comprise a very small percentage of the total workload of tribal courts. The vast majority of the work of tribal courts appears to be in the field of criminal law.

Tribal courts have borrowed heavily from the Anglo-American legal system. While there are exceptions, such as the Peacemaker Court developed by the Navajo,70 tribal courts generally have not widely developed or utilized traditional Aboriginal means of dispute resolution, or fostered Aboriginal-based alternatives to the adversarial approach through mediation, conciliation and peacemakers. Undoubtedly, this is due to the influence brought about by government officials and tribal legal advisers toward utilizing more recognizable Western legal concepts, processes and institutions. However, there does appear to be more thought being given to modifying the ways in which tribal courts go about their work, so as to include even more cultural aspects within tribal courtrooms.

Most tribal courts lack a sufficient range of effective sentencing options. While fines and incarceration commonly are used, the difficulty arises in relation to other, more creative strategies, such as fine option programs, community service orders, alcohol and drug abuse programs, detoxification centres, restitution, probation and victim-offender reconciliation. While tribal judges theoretically may be able to choose from this broader list, many cannot do so in reality because there are no such programs, due to a shortage of resources.

The danger, therefore, is that tribal courts may suffer the worst of both worlds. The common law adversarial model may be incompatible, in fact, with long-standing traditional values that promote harmony and reconciliation. Additionally, tribal courts may not be receiving sufficient resources to ensure that advocates are available for all indigent litigants so that they can benefit from the adversarial system, or to operate programs which provide alternatives to incarceration.

Advantages of Tribal Courts

There are many positive features of tribal courts. They provide a very efficient process in both civil and criminal matters. Cases deliberately are heard as quickly as possible so that the dispute does not fester, or an accused does not languish in jail on remand. As a result, punishment is meted out for criminal conduct while the evidence is fresh and the sanction still makes sense to the victim, the offender and the public at large. Similarly, child welfare and matrimonial disputes are settled with a minimum of the pain and hardship that often are created by delay.

Most reservations are located in rural areas. Often, they are far removed from state and federal courts, so that without tribal courts, cases might not come to court at all. Additionally, it is clear that state and federal courts in the United States are affected by systemic bias and discrimination against visible minorities,71 including Indians, and that, at least insofar as Aboriginal people on Indian reservations are concerned, such discrimination is eliminated by using tribal courts.

Tribal courts, therefore, are not only more convenient to tribal members, they are perceived by them as being more understanding of their situation, more considerate of their customs, their values and their cultures, more respectful of their unique rights and status, and likely to be more fair to them than the non-Aboriginal justice system has been. In such a situation, where the court has the inherent respect of accused and the community, the impact and effect of its decisions will be that much greater.

Tribal courts obviously have the capacity to bridge the chasm that now exists between Anglo-American law and Indian cultures. They are not perceived as being alien to the values, traditions and beliefs of the Indian nations. Instead, they are seen by tribal members as representing the opportunity to protect their cultures and their central tenets by careful, sensitive application and utilization of the laws and customs developed by the tribe to govern the lives of its members.

Despite the high turnover among the tribal judiciary, it must be noted that the majority of tribal judges remain in their appointments for their complete terms. Tribal courts benefit greatly from their dedication, talent and hard work. Many of the tribal court judges with whom we met impressed us with their commitment to the ongoing improvement of "their" system and to the continual advancement of their communities.

Measuring the success of tribal courts is difficult. It would appear that no comparative analysis ever has been undertaken to determine if tribal courts function better or worse than non-Indian courts. One cannot "prove" that tribal courts are more effective than the general system in deterring crime. While it is obvious that they handle literally hundreds of thousands of cases each year, cases that otherwise would be processed in state or local courts if tribal courts did not exist, no studies have been found that indicate the financial and other benefits of tribal courts for their own communities or for non-Indian ones.

However, the tendency of federal and state courts to give at least comity, if not full faith and credit, to tribal court decisions in recent years gives a telling indication of the positive attitude that is growing among the American non-Indian judiciary toward the work the tribal courts do.72

In addition, some tribes have begun incorporating significant changes which indicate a high degree of institutional flexibility. Some tribes have developed modern versions of traditional justice systems. For example, at least one has created a formal Council of Elders to play a mediation role in minor criminal and civil matters. The Navajo have created an alternative to their district and supreme courts in the form of a Peacemaker Court.

Another strength is seen in the way that the Navajo Peacemaker Court operates. Where both parties agree, any dispute, including events that could be characterized as criminal misdemeanours (e.g., committing damage to property, trespass, etc.), can be diverted from the court to a peacemaker. Like an arbitrator, the peacemaker is mutually selected or drawn from a list approved by the court and paid by the parties. The peacemaker relies upon the consent and respect of the disputants to find a solution acceptable to both. The peacemaker’s "decision" is then registered with the district court and is enforceable as a court order. If either party wishes, it can withdraw from this process and the dispute will be left unsettled, or will result in litigation before the tribal court.73

The Zuni, like a number of other tribes, have opted to revamp the tribal court itself so as to be less like the more formal common law system. The Zuni conduct a combination of mediation and pre-trial conferences shortly after criminal charges have been laid, in which the prosecutor, defence counsel, offender and victim appear before a tribal court judge to discuss the nature of the alleged crime and to determine if an acceptable resolution can be found. If no agreement can be reached, then the matter will proceed to trial before a different judge.

Many other tribal courts modify their official procedures by the judges adopting more of a mediative role between the disputants. This is more in keeping with the Indian approach of emphasizing informal discussion of problems with extensive consultation to achieve consensus. This suggests that the process of solving disputes often takes precedence over adherence to the dictates of substantive law.

Tribal courts are close to the people they serve. The vast majority of Indian reservations are small, so that people invariably know every resident. Therefore, tribal judges are likely to be familiar with the litigants and their backgrounds, and perhaps even aware of some of the details of the situation that gave rise to the trial. While this can be a problem in terms of the stress that it places on the judge, it also can be a source of strength when it comes to fashioning appropriate solutions to the issues that come before the judges. Many of the criticisms which we heard about our own circuit court system centred on its lack of connection with the Aboriginal communities where it sits.

American tribes are committed to the preservation and expansion of their court systems. This fact, perhaps more than anything, demonstrates a faith and belief in their ultimate value. The increasing level of federal financial support is a further sign of their importance, not only to the communities they serve, but to American society at large, as is the continuing commitment of tribal judges and commentators to encouraging their growth.

In addition, there is a growing respect shown by federal and state courts toward the importance and authority of this unique system. As one example, a joint annual judicial educational conference, entitled the Sovereignty Symposium, has been underway for the past few years involving the Oklahoma Supreme Court and the tribal courts of that state. This concept now is spreading to the state of Washington and is under consideration in Wisconsin.

All this leads us to conclude that tribal courts clearly have played a vital role in meeting the needs of American Indians for a fair, just and culturally acceptable legal system. That would be sufficient reason, in our view, to endorse their maintenance and expansion, but we also note that the existence of tribal courts undoubtedly provides a benefit to American society at large. TOP

 

Relevant Australian and New Zealand Experience TOP

There is no indigenous legal system functioning in either Australia or New Zealand that is remotely similar to the American Indian tribal courts. This is not to suggest, however, that their experience is without meaning or value to Canadians exploring these issues. In fact, the issue of developing a unique court for the Maori people is a topic of great interest and public debate at present in New Zealand. It already has been the subject of a study commissioned by the New Zealand Department of Justice and conducted by a Maori lawyer.74 It is being examined currently by the New Zealand Law Reform Commission as part of its second phase of work on court reform and as an aspect of its investigation into possible changes in the criminal justice system.

The issue of establishing Aboriginal justice systems already has been reviewed in particular detail by the Australia Law Reform Commission as part of its report on Aboriginal customary law.75 Therefore, both countries are in a position rather similar to Canada’s in a number of ways.

All three nations suffer from a tragic over-representation of indigenous peoples in the adult and youth criminal justice system, including detention facilities. All three have few members of the indigenous population who work within the system as judges, lawyers, police or correctional officers. Aboriginal people in each country are making ever stronger demands upon the justice system to reform itself and to involve the indigenous community in its plans and operations.

Each country also is witnessing repeated charges from the Aboriginal community of unfair treatment and outright racism present within the justice system in its dealings with the indigenous population.

Perhaps the most graphic example of this has been in Australia, where intense lobbying by a broad sector of the public, led by the Aboriginal Deaths in Custody Committee, resulted in the appointment by the Commonwealth of the Royal Commission into Deaths of Aborigines in Custody. Its original mandate was to investigate the circumstances surrounding over 40 deaths of Aboriginals while in police custody or in a correctional institution. The size of the commission and the magnitude of its investigation had been expanded as approximately 100 suspicious deaths of Aboriginal persons in custody were uncovered.

Although Aboriginal customary law still operates in many parts of Australia, with and without official approval of the state,76 dispute resolution conducted in the traditional manner has received little attention from the justice system, or from outside observers, other than as a factor that affects the selection of an appropriate sentence to be imposed by the general court.77 Australia, however, has had some limited experience with the operation of separate court systems directed toward the Aboriginal and Torres Strait Islander peoples. In the Australian state of Queensland, the community council in each trust area (formerly called reserves) is empowered under state law to enact by-laws on matters including "the peace, order, discipline, comfort, health, moral safety, convenience, food supply, housing and welfare of the area for which it is established." Fines for violations of these by-laws may not exceed $500 or $50 per day. This is similar to the jurisdiction given to Indian bands under the Canadian Indian Act. The similarity with the Indian Act is also present in another aspect, in that there is a requirement in the Queensland legislation to have the by-law approved by the Governor in Council before it is effective (as section 82 of the Indian Act compels approval by the Minister of Indian Affairs).

The local Aboriginal and Torres Strait Islander communities can establish their own police forces to enforce these by-laws. In addition, the councils can create their own courts to hear and determine charges under any by-laws enacted. These courts consist of two residents who are appointed as justices of the peace by the council. Their jurisdiction is limited to the territory of the trust lands and the residents of the community, which can include non-Aboriginals and non-Islanders. The subject matter jurisdiction is also officially restricted to the by-laws and the "usages and customs" of the community. It is unclear how broad the latter source of jurisdiction really is, both in theory and in practice. It does appear that a few communities have made use of this provision to direct other disputes to this court system. At the very least, it seemingly would allow the justices to give due respect and life to traditional law. While appeals lie to the superior courts of Queensland, there do not appear to be any reported decisions or much use of this right of appeal.

The Western Australia government also has had legislation in force since 1979 authorizing the incorporation of Aboriginal communities whose local councils can pass by-laws, subject to approval by the state government, which apply to persons within the boundaries of the community. These by-laws relate to local matters and are similar in nature to section 81 of the Indian Act, with the penalty being a fine of up to $100, or imprisonment for less than three months, or both. This legislation was a substitute for an earlier statutory scheme, dating back to the Depression, which did not contain a local government structure but did include, at various points in time, a community court system comprised of a magistrate and Aboriginal justices of the peace sitting together in judgment on minor offences. There have also been a few Aboriginal justices of the peace appointed in the Northern Territory. While they serve within the general system, they are located primarily within Aboriginal communities.

Although Aboriginal customary law and criminal justice issues have received considerable attention from researchers and government policy analysts,78 few changes have been implemented. The Australian Law Reform Commission has issued an extensive report on the subject but the implementation of its recommendations by the government of that country has yet to occur.

New Zealand makes extensive use of the justice of the peace model, following the British and New South Wales policy (the latter of which has reputedly over 30,000 justices of the peace). There are approximately 8,500 justices of the peace in New Zealand, appointed by the Minister of Justice after police scrutiny and nomination by the local member of Parliament. What makes the New Zealand experience so interesting is the degree to which the Maori have been involved, as there are currently over 500 Maori justices of the peace. The president of the Royal Federation of Justices of the Peace for 1990 also is Maori. There is, then, approximately one such judicial officer for every 400 people. They are all unpaid volunteers and cannot be lawyers, clergy or police officers. The presence of so many Maori justices has caused the production of many legal forms in the Maori language. Although their criminal jurisdiction is relatively limited, they do handle small claims cases and some apparently are involved unofficially as mediators in disputes between neighbours and family members.

New Zealand also has a special Aboriginal court system with exclusive jurisdiction in reference to the administration of Maori land-holdings and estates. Those lands which remain in the recognized hands of Maori people through their iwi (somewhat analogous to a tribe) or whanau (akin to a band or extended family) are not reserves or reservations as understood in North America. There are no recognized local or regional Maori governments who possess title to these lands, or who have regulatory authority over their usage.

On the other hand, Maori lands were not divided and allotted to individuals with fee simple title so as to be treated under the regular, imported British common law regime concerning real property. Instead, an unusual form of collective title was created, in which each person within the whanau, the extended family, was identified as having an interest in a particular parcel of land. The land could be used, leased or sold only by agreement among those who possessed a share. Over time, the number of people with interests in a specific plot can become rather sizeable as a person’s share passes on to all his or her immediate descendants on death.

The function of the Maori Land Court is to identify who the stakeholders are regarding all Maori land, to determine the beneficial interests created through inheritance and to deal with real property transactions. One of the by-products of population growth, increased urbanization, greater intertribal marriages and the alteration in land use patterns is that it becomes exceedingly difficult to develop proposals for land use by the Maori people themselves. It is far easier to lease or sell the land, as money can be divided, than it is to agree that one beneficiary farm or build or log the land for his or her own needs. In many ways, the Maori Land Court and this entire regime were designed to encourage the transference of most Maori land to pakeha (settler) control.

In recent years, the Maori Land Court has earned considerable respect among the Maoris. This is in no small part a function of the fact that it now includes a number of Maori judges, including Chief Judge E. Durie, as well as several pakeha judges fluent in Maori. In addition, various members of this court are called upon to chair hearings of the Waitangi Tribunal, which conducts investigations into complaints of violations of the Treaty of Waitangi of 1840 (the sole treaty that has, through adhesions, come to encompass all of New Zealand and chart the broad parameters of the relationship between the Maori and the pakeha). The court’s thrust has altered dramatically from its original orientation, as it now seeks ways to promote the retention of Maori land and its use by Maori people. One way has been through the creation of Maori Trusts, in which trustees are elected for a term of office by the beneficiaries to administer the land-holdings.

The Maori Land Court has no criminal or general civil authority. The judges proposed that they be granted family law and young offenders jurisdiction while the legislation in this area was being revamped. Their submission was rejected because the Children, Young Persons and Their Families Act, 1989 creates a new youth court to supplement a revised family court system, which applies to the population of New Zealand as a whole.

The New Zealand government has introduced initiatives to provide Maori people with a limited role in the criminal justice system. The Maori Community Development Act, 1975 allows Maori communities to deal with very minor offences of a quasi-criminal nature, such as public drunkenness and disorderly behaviour. The community committee can impose a fine of up to $20 or a prohibition order. It seems that this limited opportunity rarely has been used. A few district court judges have developed the occasional practice of not only holding court on marae (the Maori community lands on which spiritual and community centres are situated) but also of transferring selected cases to marae committees for determination of appropriate sentences. The latter usually occurs regarding young offenders as part of a diversion scheme, although it is done sometimes in relation to adult offenders.

The Te Atatu Maori Committee has functioned as a tribunal for a number of years to deal with cases diverted by youth aid officers prior to sentencing. It is based on a marae and seeks to ensure that the offender’s extended family is involved actively in the disposition. The committee’s sentencing philosophy is reflected by its emphasis upon imposing specific reparation orders to the benefit of the victim, and/or community service orders. The decision of the Te Atatu Maori Committee is referred back to the court for official ratification. The tribunal also is free to refuse to deal with a particular case when it feels that it is unable to have an effect on an offender.

A somewhat similar operation occurs in Rotorua through the Fordlands Scheme. Although it services an entire neighbourhood and not exclusively Maori people, most of the young offenders are Maori. It also attempts to involve the extended family and includes at least one Maori elder on any panel handling Maori cases.

The Criminal Justice Act of 1985 authorizes the establishment of Criminal Justice Advisory Councils to promote community initiatives. This has been little used to date by the Maori, perhaps, in part, due to the presence of from three to five justice system officials in each council’s total membership of nine to 11 individuals. These officials typically are non-Maori, but, in theory, could be Maori people working within the system.

Proposals to develop a Maori court system currently are under active consideration by Maori people, and seem to have their active and general support. To date, there has been no formal endorsement of the idea by either the prime minister or the government of New Zealand.

The experience of the indigenous peoples in these two countries, with over-representation in the criminal justice system, prisons and child welfare agencies, parallels the experience in Canada for the Indian, Inuit and Metis peoples. The governments are responding by attempting to indigenize the general justice system and by creating mechanisms whereby the Maori, Aboriginal and Torres Strait Islander peoples can play a limited role through advisory bodies and community justice programs. There are a few examples of initiatives that go somewhat beyond the diversionary schemes. However, these developments are few and far between. Nevertheless, the debate regarding the wisdom and necessity of establishing separate justice systems under the control of the local indigenous populations is ongoing.  TOP

 

Relevant Canadian Experience TOP

The History of the Indian Act Court

Although tribal courts as such never have been established in Canada, there has been a long-standing parallel development worthy of note. While the Courts of Indian Offenses were being imposed by the American Bureau of Indian Affairs in 1883, the Canadian government already had implemented a similar objective through an amendment to the Indian Act in 1881.79 The effect of this provision was to appoint all Indian agents and their superiors as justices of the peace under the Act. A further amendment80 the next year extended this authority by cloaking all Indian agents with the powers of a police or stipendiary magistrate.

Parliament obviously decided that Indian agents needed even more authority, as the Act was amended again in 1884.81 This time the jurisdiction was extended to enable Indian agents to conduct trials wherever "it is considered by him conducive to the ends of justice." Trials could occur outside reserves.82 The agent’s mandate also included offences under the Act, regardless of where they were committed. These justices of the peace also had authority over "any other matter affecting Indians."83 This presumably meant that Indian agents, as justices of the peace, could sit in judgment regarding all criminal offences then in existence, which included both statutory and common law offences because the Criminal Code had not yet been enacted.

As a result, this court should be considered more properly an "Indian Agent’s Court," since it was a special court system created solely for lay judges who also were employees of the Department of Indian Affairs and, at least predominantly, people without any Aboriginal ancestry. These justices held appointments with no territorial limitations, either in terms of the court or of the event that gave rise to the proceedings. They also had full jurisdiction over the person in the sense that they could deal with charges laid against both Indians and non-Indians. The sole express restraint on their authority was that non-Indians could come before the court only for a violation of the Indian Act.

It was unclear initially if this was a criminal court only, or if the general language was intended to convey civil jurisdiction in addition. This doubt was removed by an amendment in 1886 that expressly limited the agents to violations under the Indian Act so as to exclude general civil and criminal jurisdiction.84 Jurisdiction over all offenders breaching the Indian Act, regardless of race, was retained. Although the criminal scope was expanded once again in 1890 to include a number of sex offences under An Act Respecting Offences against Public Morals and Public Convenience,85 this was limited to Indian offenders.86 The passage for the first time of a comprehensive federal criminal statute in 1892 (the Criminal Code) and the repeal of the prior collection of criminal laws87 meant the initial loss of jurisdiction over sex offences. The Indian Act was amended once again in 1894 to restore this jurisdiction.88

Indian agents also were given concurrent jurisdiction with other judges in reference to two Criminal Code provisions directed specifically toward Indian people. The first provision dealt with unenfranchised Indian women prostitutes and anyone who owned or occupied premises in which such prostitution occurred.89 The second provision created the indictable offence of inciting "three or more Indians, non-treaty Indians, or halfbreeds" to breach the peace or make "riotous" or "threatening" demands on any civil servant.90 The offence of vagrancy was added the next year.91

This subject matter jurisdiction remained untouched until the major overhaul of federal Indian legislation in 1951, so that for the first half of this century all Indian agents were justices of the peace with criminal jurisdiction over all violators of the Indian Act, in addition to having specific Criminal Code jurisdiction over Indians in relation to sex offences, prostitution, vagrancy, and aggressive political activity when conducted in groups of three or more Indians or Metis.

The Canadian government differed from its American counterpart in two critical ways. While the Bureau of Indian Affairs worked to develop an Indian police force to impose federal law under the watchful eye of the Bureau of Indian Affairs, the Canadian policy was to rely upon the RCMP whenever any policing was necessary.

The Americans also sought from the outset to use the court system as a "civilizing" tool to foster their values and beliefs in substitution for traditional law and governmental structures. It was felt that this was accomplished best through the hand-picking of individual tribal members to be appointed as judges under the supervision of the Bureau of Indian Affairs agents. The Canadian approach was much more oppressive. All Indian agents automatically were granted judicial authority to buttress their other powers, with the result that they not only could lodge a complaint with the police, but they could direct that a prosecution be conducted and then sit in judgment of it. Except as accused, Aboriginal people were excluded totally from the process.

The clear result of all this development was that Indian agents were armed with broad power over almost every aspect of Indian life. They presided at all Indian council meetings and virtually directed local decisions. As agents and as justices of the peace, they presided over the enforcement of laws in relation to:

• trespass to reserve lands;

• removal of renewable and non-renewable resources;

• sale or purchase of farm produce;

• logging;

• non-payment of rent;

• seizure of goods;

• band council by-laws;

• actions in debt, tort or contract;

• private purchase of Crown presents to Indians;

• intoxication offences;

• common bawdy houses;

• celebrating a Potlatch or Tamanawas;

• inciting Indians to make riotous demands or breach the peace;

• pursuing land claims or raising funds for that purpose;

• sale of ammunition to Indians when prohibited by the superintendent general; and

• regulating Indians in obtaining homesteads in Manitoba, the North-West Territories and the Keewatin District.

In addition, these justices had the normal authority to issue search warrants and notarize affidavits or other legal documents.

While their jurisdiction was concurrent with the regular provincial court system insofar as the Indian Act and the Criminal Code provisions applicable to Indians were concerned, the expectation on the part of the federal government was that Indian agents would serve for all intents and purposes as the only relevant justices in all matters within their jurisdiction, due to their intimate knowledge of reserve life, their awareness of the specific events and their presence within the community. The role they were expected to play was part of an overall federal policy of assimilation. Just as the provincial governments had little to do with bands and their needs due to financial, constitutional and other reasons, there was little incentive for the regular courts to get involved except when called upon to deal with more serious criminal offences.

One of the changes introduced in 1951 was that the Governor in Council was empowered to appoint "persons" to be justices of the peace.92 All the Indian agents who previously had been appointed retained this status93 and agents clearly were eligible to be appointed in the future. This should not be misinterpreted as being an attempt to follow the American approach of 70 years earlier, as Indians were not "persons" then under the Act. Instead, it merely gave added flexibility to the federal government to appoint people other than Indian agents if it so chose. TOP

 

The Current Regime TOP

A 1956 amendment to the Indian Act reflects a few further jurisdictional changes:

107. The Governor in Council may appoint persons to be, for the purposes of this Act, justices of the peace and those persons have and may exercise the powers and authority of two justices of the peace with regard to

(a) offences under this Act, and

(b) any offence against the provisions of the Criminal Code relating to cruelty to animals, common assault, breaking and entering and vagrancy, where the offence is committed by an Indian or relates to the person or property of an Indian.

Law reports normally do not record the decisions of justices of the peace, and the federal government also apparently has not documented the decisions of Indian agents as justices, with the result that we have no way of knowing how often this power was exercised. Only seven reported cases exist in the period from 1881 until the provision was overhauled in 1951. All these dealt with appeals or attacks on the validity of the agents’ jurisdiction before the regular courts.94 The subsequent jurisprudence on section 107 is even more sparse, consisting of a handful of decisions of the Quebec Superior Court and Court of Appeal, all but one of which are unreported, regarding challenges to the court functioning at the Kahnawake Indian Reserve near Montreal.95

Despite these challenges over the years, the overall integrity and validity of this unique court have been sustained repeatedly, as have the appointments of the justices. The subject matter jurisdiction set out has been interpreted liberally by courts called upon to review the jurisdiction of section 107 courts, as including not only the express provisions of the Act but also the regulations and by-laws enacted pursuant to the Act. It is also clear that jurisdiction over both Indians and non-Indians has been upheld in reference to violations of the Act. Jurisdiction extends beyond the boundaries of the reserve as long as the events constitute an offence under the Act, or involve Indians.

The courts also have assumed that all the normal elements of the general justice system apply, including due process, natural justice, right to counsel, etc. The appellate courts have not questioned their own jurisdiction to hear appeals or applications for judicial review.

With the elimination of Indian agents, starting with the Walpole Island First Nation in 1965, the policy basis for the section 107 court system seemingly has disappeared. Nevertheless, the provision has continued to survive, despite several rounds of amendments to the Act over the intervening years. Furthermore, it is in active use today, albeit for a very different reason than its original intent. Three First Nations have been successful in being able to persuade the federal government to appoint people of their own choosing as justices of the peace for their communities. The Akwesasne Reserve has had a member appointed by the Governor General in Council as a justice of the peace since November 23, 1972. Other band members have subsequently received this status, and the first Mohawk justice of the peace appointed, Justice John Sharrow, conducted court at Kahnawake for many years, starting in 1974. There are now other Mohawks of that community who also have been appointed. The Pointe Bleu Reserve has also had a section 107 court functioning for some time. TOP

 

Jurisdiction TOP

The specific subject matter jurisdiction has been expanded by the changes introduced to the Indian Act in recent years and the greater use of the by-law-making powers of band councils under sections 81, 83 and 85.1. Therefore, the justices have full jurisdiction over offences created within the Act itself, as well as those enacted via federal regulations and band by-laws. In practical terms, the majority of the activity relates to offences regarding the following:

• Trespass to reserve land (s. 30).

• The sale of agricultural produce from reserves in the three Prairie provinces without departmental consent (ss. 32-33).

• Trading, removing or defacing certain cultural or burial objects (s. 91).

• Trading for profit without a licence by DIA employees, missionaries or school teachers (s. 92).

• Removal of renewable and non-renewable resources without ministerial consent (s. 93).

• Allowing a child between the ages of seven and 16 to refrain from attending school (s. 119(3)).

• Violating regulations regarding:

- logging and mining (s. 57);

- fur-bearing animals, fish and other game on reserves (s.73((1)(a), although no such regulations are in force);

- highway traffic (s. 73(1)(c));

- dog registration (s. 73(1)(d));

- licensing of places of amusement, controlling behaviour at such places and outlawing gambling (s. 73(1)(e));

- controlling infectious diseases and requiring adherence to provincial health and sanitation standards (s. 73(1)(g));

- controlling garbage dumps, the disposal of waste and burning of rubbish (s. 7(1)(k)).

• Violating band by-laws enacted pursuant to ss. 81, 83 and 85.1.

The latter, of course, are specific to each reserve such that the justice of the peace could obtain broad or very narrow authority through this mechanism.

Some First Nations actively utilize this opportunity for delegated powers of local government by passing by-laws concerning health care, traffic, law and order, juvenile curfew, disorderly conduct and nuisances, building codes, water works, amusements, wildlife management, trespass, licensing of businesses, property taxes, the sale or manufacture of intoxicants, being intoxicated and possession of intoxicants. In addition, section 102 provides a general penalty where the Act or regulation is silent as to the consequences of committing an offence.

The justice also has a procedural role in relation to issuing search warrants (section 103(4) in relation to goods to be seized and section 119(2.2) in relation to entry of a dwelling-house in aid of finding a truant).

Paragraph 107(b) further extends authority to a justice concerning any provisions in the Criminal Code that could constitute the offences of cruelty to animals, common assault, breaking and entering, and vagrancy. The latter currently is not an offence under the Code, while the others are not tied to specific sections of the Criminal Code through section 107 of the Act.

While this subject matter limitation may appear to some to be rather narrow, it is important to realize that band by-laws are obtaining increasingly greater importance. Several recent decisions have held that band by-laws can take precedence over the federal Fisheries Act and its regulations.96 The same reasoning could be extended logically to other areas in relation to federal legislation. In addition, section 88 of the Indian Act has the effect of rendering by-laws paramount over provincial laws of general application where they are inconsistent. It is unclear if the latter would apply only in relation to Indians, as section 88 expressly states, or if it also would extend to non-Indians within reserves.

Jurisdiction over the person varies between the two paragraphs of section 107. The latter is designed solely to apply to registered Indian offenders and other potential accused, as long as the alleged crime "relates to the person or property" of a status Indian. The broader range covered by the first paragraph makes no distinction based upon the race of the accused, or his or her entitlement to registration. As the Act does not tie registration to race explicitly, it is possible for individuals to have no Indian ancestry, yet have gained status under the Act so as to fall clearly within the jurisdiction of this unique court. The accused also does not have to be a member of the band or a resident of the reserve in relation to which the court is functioning. On the other hand, it is possible since Bill C-31 for someone to gain band membership under a First Nation’s membership code passed pursuant to section 10 without qualifying for registration so as to be potentially outside the court’s jurisdiction under section 107(b). To confuse matters somewhat further, a person is legally an "Indian" if he or she is "entitled to be registered" as such under section 6(1), even though that person may not, in fact, actually be registered.

Thus, all people can be brought before the court for offences committed under the Act, regulations or band by-laws.97 Only Indians and those committing offences upon Indians or their property can be dealt with legally by a section 107 justice in relation to the Criminal Code offences.

The experience of the Kahnawake court is that a sizeable proportion of its offenders are non-Indian highway traffic violators. Section 107 does not refer directly to any territorial limitations upon the justices appointed. The long-standing tradition is that they carried a national appointment so that the Indian agents would not have to be reappointed every time they were transferred to another reserve. In addition, some agents were responsible for more than one band at a time. Therefore, the individuals received general appointments in their personal capacity after 1894, empowering them to serve as justices of the peace anywhere in the country. While the Act no longer explicitly states that these justices may conduct trials outside reserves, it also does not in any way restrict the location of the court. It is important to realize, however, that virtually all the offences under the Act relate to activities occurring solely on Indian reserves. The regulations are structured similarly and by-laws are presumed to be clearly limited to the boundaries of the reserve. It would be possible, though, for the offences delineated by section 107(b) to include incidents that occurred off-reserve, such that an urban case of common assault could be transferred from the provincial courts or initiated in the section 107 court.

The language of section 107 itself makes it clear that this separate court system is intended to operate in relation to criminal and quasi-criminal matters. For this purpose, the individual "may exercise the powers and authority of two justices of the peace" so as to match the language found in the Criminal Code over the years concerning the definition of a magistrate. The question remains, however, as to whether a section 107 justice of the peace has any civil jurisdiction. The Act is silent in this regard and the limited jurisprudence in the superior courts is of no guidance. At most, such civil jurisdiction would be limited to matters included within the Act, regulations and band by-laws, but even this is highly debatable in light of the use of the expression "offences" within paragraph 107(b). TOP

 

The Creation of New Courts under Section 107 TOP

It has been the position of successive ministers of Indian Affairs for at least the last 10 years that no new courts will be created under section 107 of the Indian Act. Thus, the only appointments of recent vintage have been as replacements upon the death, resignation or incapacity of the sitting justices. The explanation for this unwillingness to utilize the legislation as it stands is that the Indian Act as a whole has been under review, and long-term initiatives that might prejudge or differ from the outcome of this consultation process should not be implemented for the time being. We question the validity of this explanation in view of the fact that other major changes have been instituted. Nonetheless, in view of the position we take with respect to the creation of Aboriginal justice systems, we do not want to be seen as suggesting that the use of section 107 of the Indian Act has any further validity. However, we do note that, as with the former Bill C-52 legislation on Indian self-government proposed by the Department of Indian Affairs in 1984, the existence of section 107 of the Indian Act and its latest usage shows some recognition by the federal government that the First Nations have a role to play in the administration of justice within their communities.

The section 107 court remains in the statute as a vestige of the ignominious past of federal colonization and domination of reserve life. It has been seized upon by three First Nations who wish to assert some level of control over the local justice system. The restrictions that exist in the Act are such that it offers little promise for the long-term future and is unlikely to satisfy current demands from First Nations to establish their own justice system. At most, it offers a short-term interim measure and an indication that a separate court system can function readily on Indian reserves without causing grave concerns within the rest of society or the legal community.

Unfortunately, over 100 years of experience with the Indian Act courts can provide little in the way of direction toward a new approach for the future. This helps explain the fact that the search for guidance generally has been directed toward the United States.

The other initiatives in Canada have been limited to appointing more Aboriginal people as provincial or territorial justices of the peace, or as advisers to presiding provincial or territorial court judges. Both these approaches have been used extensively in the Northwest Territories where a number of Dene, Metis and Inuit justices of the peace currently serve. In addition, some Inuit communities in the eastern Arctic use an elders’ panel to advise the court on sentencing decisions and to help carry out behaviour change in offenders who receive non-custodial sentences.

The Ontario government also has had a special program for Aboriginal justices of the peace since the early 1980s, which has resulted in the selection of several full-time and part-time Indian and Metis JPs. The Ontario government recently has provided funding to the Sandy Lake and Attawapiskat First Nations to establish elders’ panels to advise the court on sentencing in non-jury cases.98 A similar system had been in operation in the 1970s on Christian Island regarding young offenders.

It is important to note that these types of initiatives still are based upon an application of existing federal and provincial laws, rather than incorporating the traditional and contemporary laws of Aboriginal communities. While they represent a positive step forward from the status quo, they do limit the involvement of Aboriginal people to a subordinate position within the general justice system in a way that is not in keeping with the professed desires of the Aboriginal peoples of Canada. As the Assembly of Manitoba Chiefs put it:

This provision of the Indian Act has not been used to create a judicial system for Indians. Historically it was utilized to provide additional powers for Indian agents. As the officials of the Department of Indian Affairs, these agents applied and enforced federal Indian policy and the Indian Act. The provision of the Indian Act could be a legislative source for the establishment of a unique Indian justice system, however, it is not likely to be utilized considering the limited role and jurisdiction of such courts.

Indeed leaders of First Nations across Canada take the position that dealing with offences under the Indian Act or a few sections of the Criminal Code is not acceptable. An inferior court with limited jurisdiction is most definitely not an alternative to the establishment of an Indian court system. Paternalistic and patronizing alternatives are both insulting and degrading to our human dignity.99

We see no logic in having day-to-day decisions affecting the lives of members of First Nations being made by outsiders. TOP

 

 

 

 

Creating Aboriginal Justice Systems TOP

While more and more has been said in favour of the establishment of Aboriginal justice systems, few proponents have articulated in detail how such systems should be established legally or how they would function. The presentations which we received strongly emphasized the point of recognizing the right, but few addressed the surrounding issue in any significant manner.

Having already come to the conclusion that Aboriginal courts are an important aspect of solving the problems which we have identified, the focal point in this section will be on how Aboriginal justice systems could be created and how they could function in practical terms. This obviously will reflect the issues that are most pressing from the viewpoints of the administration of justice, which daily faces the problems, and of Aboriginal communities and organizations which wish to assume responsibility for these problems. The alternatives involved have to be confronted if they are to receive proper consideration.

At the outset, we wish to point out that we recognize that it is not appropriate for us to put forth a model that is intended to serve as a master plan or blueprint to be adopted by Aboriginal communities or to be pressed upon them. It is clearly up to the Aboriginal people themselves to debate the alternatives and make their own choices based upon what they believe will best fit their current needs and objectives for the future. It can be anticipated that this may produce different approaches throughout the province of Manitoba, just as there are different models in the United States.

We believe it is important to accept the principle that justice systems must not be imposed on Aboriginal people. To do so would be to perpetuate the policy of paternalism and imposition that has been the hallmark of Aboriginal affairs in this country for too long. Aboriginal people must have control over such major developments. Deputy Minister Harry Swain of the Department of Indian Affairs made the point when, in discussing with us the future of amendments to the Indian Act, he said:

As noted, we are long past the day when Ottawa proposes to legislate without the consent of the governed. Instead the department is working in close collaboration with many Indian leaders and organizations across the country to see whether there exists a package of reforms that would command broad support among First Nations.

There undoubtedly will have to be negotiations involving federal and provincial governments and Aboriginal representatives if the establishment of Aboriginal justice systems is to become a reality. One of the purposes of this section of the report is to assist in those negotiations, if we can, by addressing those concerns that appear to be most obvious and by recommending how they might be addressed. We recognize that our views will have an impact upon the discussions concerning the content and form of future Aboriginal justice systems. Aboriginal-government negotiations are an inevitable outcome of our report. Aboriginal people must be seen as full and equal partners in Confederation and must be encouraged in their right to control the development of institutions that have an impact on the governance of their communities.

Discussions will be necessary to sort out the boundaries between the general legal system and the new one being forged, as well as to address conflicts of laws questions. Negotiations may be required to establish and clarify the legal basis for Aboriginal justice systems and the resolution of the potential for jurisdictional conflicts with existing courts. TOP

 

 

 

 

The Legal Bases TOP

There are several alternative means as to how Aboriginal justice systems could be established legally. They include:

• A constitutional amendment to section 35 of the Constitution Act, 1982.

• Federal legislation, enacted pursuant to the federal power to create courts under section 104 of the Constitution Act, 1867.

• Federal legislation enacted pursuant to the federal power over "Indians and lands reserved for the Indians" under section 91(24) of the Constitution Act, 1867.

• Provincial legislation enacted pursuant to the Province’s power over the administration of justice.

• Federal-Indian negotiations leading to a recognition of the right of Aboriginal people to establish and maintain Aboriginal courts as an aspect of the "existing treaty and aboriginal rights of the aboriginal peoples," as recognized and affirmed by section 35 of the Constitution Act, 1982.

• A constitutional amendment applicable only to the Province of Manitoba through joint resolutions passed by the provincial Legislature and the federal Parliament.

• Aboriginal legislation enacted by virtue of Aboriginal powers to legislate either under new or existing legislation such as the Indian Act, or pursuant to Aboriginal powers of self-government as currently found in section 35 of the Constitution Act, 1982.

The preferred option put forward by the Assembly of Chiefs stems from what they refer to as the "treaty-based" approach. The essence of their position is that in their treaties with the Crown, they had undertaken to respect and obey the laws of Canada, and, in turn, they believed that the Crown had undertaken to respect and obey their right to self-government:

It is our collective interest in this country to help each other, as neighbours, in seeking and finding treaty justice for the Indian people. Our understanding of the treaties is that they did not alter the sovereign authority of the Indian tribes on matters of self-government, but did, in fact, recognize and affirm our sovereignty.

In Manitoba all the treaties, except Treaty 1, contain a provision that Aboriginal people will maintain peace and good order and that they will obey and abide by the law. This provision, contained in Treaties 2, 3, 4, 5 and 6, has not been the subject of treaty litigation to date. It reads as follows:

The undersigned Chiefs, on their own behalf and on behalf of all other Indians inhabiting the tract within ceded, do hereby solemnly promise and engage to strictly observe this treaty and also to conduct and behave themselves as good and loyal subjects of Her Majesty The Queen. They promise and engage that they will in all respects obey and abide by the law, that they will maintain peace and good order between each other and also between themselves and other tribes of Indians, and between themselves and others of Her Majesty’s subjects, whether Indians or whites, now inhabiting or hereafter to inhabit any part of the said ceded tract, or that they will not molest a person or property of any inhabitants of such ceded tract or the property of Her Majesty The Queen, or interfere with or trouble any person passing or travelling through the said tract or any part thereof, and that they will aid and assist the officers of Her Majesty in bringing to justice and punishment any Aboriginal offending against the stipulations of this treaty or infringing the laws in force in the country so ceded. [Our emphasis]

In interpreting the meaning of peace and good order, the First Nations rely on the position that a treaty did not diminish, but confirmed, their right to govern themselves as separate and distinct peoples. In that context, this provision, when given practical meaning and application, according to the First Nations of Manitoba at least, entails full jurisdiction to establish and maintain peace and good order:

• Between the Indians of the Indian tribe.

• Between Indian tribes of the same Indian nation.

• Between Indian tribes of different Indian nations.

• Between Indian tribes and Her Majesty’s subjects, white or Indians, who reside on ceded land.

The chiefs went on to say in their presentation to us:

This provision recognizes the jurisdiction of the Indian tribes to bring to justice and punishment any Indian offending against the stipulations of this treaty or infringing the laws enforced in the country so ceded.

In asserting such jurisdiction, the Indian tribes who signed the treaties containing this provision are to further aid and assist the officers of Her Majesty in bringing to justice and punishment such Indian offenders. Such aid and assistance provided by the Indian tribes goes beyond the policing of their people, but involves a role for the Indian tribe in the administration of justice and punishment even on lands that have been ceded under treaty.

In Manitoba the First Nations interpret this provision of the treaty as recognition that our tribal sovereignty extends to the exercise of jurisdiction over Indian persons who violate the treaty and the laws that apply on ceded lands.

We regard this provision as only one element of the treaties that merely confirms the pre-existing authority to administer and maintain justice. Under this provision of the treaties, in respect to the breaches of laws that are enforced in the lands ceded, the Indian tribes retain authority to enforce such laws and to bring to justice and punishment such Indians who offended treaty and non-Indian laws outside of reserved Indian lands.

Our analysis leads us to conclude that the manner of resolution that appears to provide the greatest potential for the successful establishment of Aboriginal justice systems for both First Nations, Metis and Inuit peoples involves a process of trilateral negotiations, leading to an agreement that contains within it an express provision that the right to establish and maintain Aboriginal justice systems is an "existing treaty or aboriginal right" within the meaning of section 35 of the Constitution Act, 1982. Whether that leads ultimately to a constitutional provision does not deter us from our conclusion that the establishment of Aboriginal justice systems can, with effort and cooperation, be accomplished.

It is conceivable that negotiations could occur only between Aboriginal people and the federal government. However, in view of the current significant provincial role in the administration of justice, we suggest that it would be in the best interests of Aboriginal organizations to ensure that as Aboriginal justice systems are established and developed, provincial institutions be involved to avoid jurisdictional conflicts.

It seems logical to us that one of the concerns which Aboriginal groups will want to address with the provincial government in particular is the question of having the provincial justice system withdraw from particular areas of jurisdiction at the same pace as they are being assumed by Aboriginal justice systems.

Ultimately, the greatest security for Aboriginal justice systems is as an aspect of the constitutionally protected rights of Aboriginal people contained within section 35 of the Constitution Act, 1982.

Therefore, the substance of the negotiations should lead to a constitutional amendment of section 35 to include either "self-government" or "Aboriginal justice systems" clearly within the meaning of "aboriginal rights." We note that a constitutional amendment can be accomplished through the constitutional amending formula set out in section 38 of the Constitution, or by joint resolutions of the Manitoba Legislature and the Canadian Parliament. Either process would appear suitable from a legal perspective, although we recognize the problems inherent in a constitutional amendment that applies only to one province.

Obviously, the issues surrounding the appropriate basis for the establishment of Aboriginal justice systems are complex. The manner in which this issue is resolved, we believe, must be left to a process of negotiation among the parties, and to a process of implementation involving a monitoring and public reporting mechanism. We discuss how such a sensitive matter can best be implemented later in this report.

For the purposes of this discussion, we conclude that there are sufficient mechanisms and viable options available within Canadian law for the establishment of Aboriginal justice systems to be accomplished. TOP

 

Structure TOP

We have spoken deliberately throughout this part of the report about "Aboriginal justice systems" rather than "Aboriginal courts." That is because we believe that it is important that it be recognized that the approach that must be taken is a systemic one, and not one which deals with elements of the administration of justice in an isolated way. It is not appropriate to believe that one can provide an answer to the problems we have identified merely by establishing Aboriginal police programs, for example. Aboriginal and non-Aboriginal accused, arrested and charged by Aboriginal police officers, should appear in front of Aboriginal judges, in an Aboriginal court system controlled by Aboriginal people.

The important issue is that every component of the justice system operational within an Aboriginal community be controlled by Aboriginal people. That would include everything from police, to prosecutor, to court, to probation, to jails. Only by approaching the matter in a systemic, holistic manner can one safely conclude that improvements will, in fact, take place. To proceed in a piecemeal manner not only is unfair to Aboriginal people, but also to Manitoba society, because that will not bear the kinds of results to which Manitoba’s Aboriginal and non-Aboriginal people are entitled.

Although many of our comments in this part are directed toward the manner in which an Aboriginal court would function, in other parts of this report we discuss how other elements of the justice system should be incorporated into an overall approach to the delivery of justice to Aboriginal people in Aboriginal communities.

The issue of how to constitute Aboriginal justice systems is a major one in Canada, as it must reflect the reality that confronts us. Individual Aboriginal communities here are not as large in terms of acreage and population as some in the United States. Many Aboriginal communities are far apart and isolated from larger centres. Travel often is expensive and subject to the vagaries of the weather. Human and financial resources are likely to be limited somewhat.

Without belabouring the point, it is fair to say that these facts and many others impinge upon how an Aboriginal justice system should be constructed. Some of them tend to foster the attractiveness of a local system so as to minimize travel expenses and delays in dispensing justice. The lack of personnel available within small communities and the smaller caseloads bespeak the opposite, favouring a circuit court system. The many complaints voiced during the public hearings of the Inquiry about circuit courts, from Aboriginal and non-Aboriginal people alike, do not, however, provide a ringing endorsement of that approach, by any means.

Another concern relates to the formality of the court system. While some critics in the U.S. have criticized the American Indian tribal court system for paying too little attention to due process and the rights of the accused, others have chastised it for being too formal and too similar to the American courts. Some Indian people have been particularly critical of its tendency to mirror the general system, rather than acting in a way more in keeping with traditional Aboriginal approaches.

We recommend that:

 Wherever possible, Aboriginal justice systems look toward the development of culturally appropriate rules and processes which have as their aim the establishment of a less formalistic approach to courtroom procedures so that Aboriginal litigants are able to gain a degree of comfort from the proceedings while not compromising the rights of an accused charged with a criminal offence.

One final aspect must be mentioned, as well. That has to do with the fact that Aboriginal communities with different legal bases but virtually identical cultures often are located side by side. Many Metis communities are located adjacent to Indian reserves. Residents of such Metis communities often are related closely to those on the reserve. Some of the residents of those communities are status Indians pursuant to Bill C-31 who have chosen to continue to reside on the Metis side.

We endorse the principle that each and every distinct Aboriginal community be entitled to its own justice system. We also encourage Aboriginal communities which are located side by side, as we have mentioned, to work out joint justice-management agreements so that one Aboriginal justice system can operate in both communities. We are aware that, historically and politically, jointly managed programs between Indian and Metis organizations have not been created frequently. However, we can see no reason for that to have to continue, particularly where the inability to develop such a joint approach may result in one or the other or both communities being unable to sustain or establish a local system.

We recommend that:

 Where Indian and Metis communities are located side by side, the leaders of the two communities give serious consideration to establishing a jointly managed Aboriginal justice system which serves both communities. TOP

 

A Regional Model TOP

In recognizing the right of Aboriginal people to establish and maintain their own justice systems, we conclude that that right resides within each and every properly constituted Aboriginal community pursuant to section 35 of the Constitution Act, 1982. However, if we simply left the matter at that, the possibility would occur of several dozen separate Aboriginal courts arising without coordination or in ways that duplicated costs and effort. We would like to address that aspect.

Certain Aboriginal communities will be of sufficient size to justify a resident judge of their own. Others, we believe, should share their court system with neighbouring Aboriginal communities. It would be advisable, however, that this be restricted to the same linguistic group.

In addition, rather than creating a circuit court that functions out of regional centres like Thompson and The Pas, the result should truly be a court that is shared, in all senses of the word. There are a variety of American examples to consider on this point. Some small Indian reservations in the U.S. contract with larger tribes nearby to obtain the use of the latter’s judge, court clerk and prosecutor to provide a full-fledged court system on an as-needed basis.

Another approach is the regional court model in use in parts of Oklahoma and the northwestern United States, where a number of tribes join together to operate a court system under the control of a representative board of directors. The board hires the necessary personnel to provide court services to each community. The law that is followed, however, in all these situations is the law of each tribe.

It would be possible in Manitoba to follow this concept of a regional approach, as has been done with Indian child and family services agencies throughout the province, with the DOTC Police Force, with the various tribal councils in existence, and with the regional offices of the Manitoba Metis Federation. The regional approach to administration and program delivery is one that appears well founded in Manitoba’s Aboriginal community.

In doing so, particular care would have to be paid to structuring regions that are neither too large, nor too small. In addition, the earlier caveats regarding linguistic similarities should be kept in mind in delineating the regions.

One attractive aspect to the regional court model, especially when it is used in conjunction with peacemaker courts, is the element of critical mass, or economies of scale. This approach ensures that there is sufficient workload to justify all the personnel that a court requires. It also means that there can be more than one judge appointed to the court. The American experience again demonstrates that most modest-size tribes have appointed at least two judges. This allows for the accommodation of the human inevitability of vacations, illness, resignations and deaths. It further permits judges to attend conferences and training sessions in rotation. It also allows a judge to withdraw from specific cases, due to personal reasons or a conflict of interest. Finally, it allows judges to specialize to some degree. Judges could be appointed on a part-time basis to achieve these objectives.

We recommend that:

 In establishing Aboriginal justice systems, the Aboriginal people of Manitoba consider using a regional model patterned on the Northwest Intertribal Court System in the state of Washington.

Appellate Courts

Where the regional court consists of four or more judges, it would be possible to appeal the decision of a trial court judge to three of the remaining members sitting as a panel. Although some may frown on this approach, due to the close working relationship in this situation between the trial and the "appellate" judges, it is done extensively in the American Indian tribal courts. Only the Navajo and the Hopi appear to have full-time courts of appeal, although Indian tribes in South Dakota collectively have created an intertribal appellate court.100

The common law courts in the United Kingdom utilized this system for centuries. This would allow any applications for court orders or judicial reviews to be kept within the Aboriginal court system. Having a number of judges would reduce the likelihood of backlogs being created in caseloads.

Sharing the burden of office with colleagues also would be important on a personal level for judges and other court personnel. The pressures that will accompany this work will be enormous and the support of others who are experiencing the same thing will be vital to avoid the "burn-out" syndrome. It may assist judges further to share their ideas, information and expertise with each other when they meet.

In addition, the force of their numbers may foster greater awareness and respect for Aboriginal courts within the broader legal community in the province.

We recommend that:

 Regional Aboriginal justice systems establish an independent and separate appeal process which makes use of either separate appeal judges or other judges of the Aboriginal system as judges of appeal. TOP

 

 

 

 

Jurisdiction TOP

An important issue when it comes to the administration of justice is always the issue of jurisdiction. There are three constituent elements to jurisdiction: territorial jurisdiction, jurisdiction over the person, and subject matter jurisdiction.

Each will be dealt with separately, as they raise distinct problems even though they also interact closely.

Territory

We begin with the principle that an Aboriginal court system should function within each Aboriginal community in Manitoba, be it an Indian reserve or a Metis community. This suggests to us that where there is a community of Aboriginal people with a self-declared and recognizable collective identity distinct from that of the non-Aboriginal people surrounding them, then their "collective right" to govern themselves in accordance with their customs and traditions exists, as well. Their distinctiveness as a community assumes that they also have a distinctive geographical area dedicated or available to them for their use, not necessarily on an exclusive basis.

Many Aboriginal communities do not "own" or have a legal claim over the land they occupy. Again, that should not necessarily affect their status as an identifiable Aboriginal community. While territorial ownership would resolve many problematic issues surrounding jurisdiction, it is not necessary, in our opinion, for Aboriginal communities to "own" or have a valid legal claim to the land they occupy in order to be identified as Aboriginal communities for purposes of establishing Aboriginal justice systems.

Many examples of this principle arise in Manitoba. Almost no Metis community in the province has valid legal title to the land it occupies, yet its existence as a Metis community cannot be doubted. St. Laurent, Camperville and Duck Bay are Metis communities as distinctive culturally and geographically as any Indian reserve or municipality, yet without a legally defined title to their land. South Indian Lake, for example, is a distinct Aboriginal community although it has no legal title to the land which it occupies.

In fact, this principle points out, if anything, one of the fallacies which surrounds Aboriginal affairs in this country—that a land base is a prerequisite to the exercise of Aboriginal rights. One does not need to own land in order to assert jurisdiction over it. Legal ownership of the land is not to be equated with jurisdiction over it. Conversely, jurisdiction over land is not dependent upon first obtaining ownership of it. Section 35 of the Constitution Act, 1982, in its recognition of treaty and Aboriginal rights, does not limit those rights to geographically defined territories.

The government’s policy of equating legal title over land with jurisdiction over it, particularly by the Department of Indian Affairs, has been a source of much confusion. The provisions of the Indian Act dealing with surrenders of reserve land presume that the Indian interest in the land is one of ownership and not one of governance. The band’s surrender of its own legal interest in the land in favour of another party should not mean that it loses legal jurisdiction over the land, or that it cannot continue to exercise governmental powers over it, as would a provincial government who sold Crown land to an individual.

The legal system’s failure to recognize the difference between the Aboriginal peoples’ separate and distinct positions as land owners and as land governors has given rise to much misunderstanding in legal and political circles. It is also that failure which has given rise to the assertion that Aboriginal self-government is tied up inextricably with Aboriginal ownership of the land, and that the latter is a sine qua non of Aboriginal self-determination.

It is probable that the relationship between Aboriginal ownership and Aboriginal jurisdiction arose because of our legal system’s inability to accept that any entity other than the Crown could or should have an underlying title to land, different from or greater than the land’s owner. In fact, while our law asserts that the underlying title to all land in the country is vested in the Crown, it is clear that what is meant by this "underlying title" is jurisdiction, and not ownership in the real property law sense.

It is in that sense of the term, therefore, that we must approach the issue of jurisdiction of Aboriginal courts. We cannot allow the issue to be decided simply by a determination of the question of "who owns the land." What must be asked is whether the Aboriginal community in question enjoys, on the land where it resides, a collective Aboriginal right to self-determination within or over it. If so, then it is a matter of defining the area over which the community has jurisdiction.

For First Nations, the question of territory is relatively clear. They have and would continue to have jurisdiction over the land included within their reserve. For Metis communities, we believe that a process of Metis-provincial negotiations will have to take place to identify the area over which an Aboriginal justice system operational within a Metis community will have jurisdiction. If a First Nation and an adjacent Metis community establish a jointly managed Aboriginal justice system, then the territorial jurisdiction of that system will include the territories of both Aboriginal communities.

Clearly, an Aboriginal justice system should have jurisdiction over matters and people within the geographical territory of the Aboriginal community it serves. Examining the geographical scope of an Aboriginal justice system does raise the question of whether it should have jurisdiction outside the Aboriginal community’s boundaries or agreed-upon territory.

We have a long history of circumscribing the jurisdiction of courts through geographical means, such as with municipal courts in Quebec and county or district courts across most of the country. The courts of Canada, at present, generally are limited in their jurisdiction to considering only events that occur within the legal borders of their respective provinces or territories. However, there are matters over which a Canadian court has jurisdiction even if they occur outside the geographical boundaries of the country.

The jurisdiction within the boundaries of the community should be exclusive to the Aboriginal system, and there may be occasions when an Aboriginal system should be able to exercise jurisdiction over events or its citizenry outside its geographical boundaries.

The trend of registered Indians of moving to cities in search of employment, educational opportunities and better services is continuing and appears to be increasing. It is worth noting, as well, that a sizeable percentage of the Aboriginal inmate population has been incarcerated for crimes committed outside Aboriginal communities such as Indian reserves and that approximately one-half of all inmates were raised off-reserve.101

Person

Since the primary purpose underlying the establishment of a separate court system is to empower Aboriginal people to administer justice for themselves, it is obvious that the court should have authority regarding, at the least, Aboriginal litigants and offenders. Stating this basic premise, however, does not address the entire matter fully. The first issue that arises is whether the jurisdiction should be exclusive or concurrent. Although allowing people to have the maximum possible freedom of choice is attractive in principle, the effect of permitting litigants in all cases to be able to choose between the Aboriginal court and the regular provincial courts would encourage forum-shopping.

One might argue that an element of choice is a net benefit, as it will encourage the new court system to function efficiently and in a way that will encourage individuals to choose it over the status quo. The disadvantage of this approach likely would occur in criminal matters, as some Aboriginal communities have expressed complaints about the existing courts being too lenient and not imposing a form of punishment that both penalized the offender as well as encouraged a change from antisocial behaviour. It is quite possible, therefore, that some Aboriginal courts may reflect this sentiment in longer periods of incarceration or non-incarceral sentences that may be seen as imposing unattractive burdens.

It is our conclusion, nevertheless, that the jurisdiction over litigants and offenders for events arising within the territory of the court should be exclusive so as to eliminate any possible forum-shopping. Aboriginal courts will need the respect that emanates from exclusive jurisdiction and Aboriginal communities will want the certainty that their court system will not be avoided or ignored. This certainty will assist all parties in knowing precisely where and in which court the charge will be heard, or the case will be tried.

The situation of non-Aboriginal residents of Aboriginal lands may be different somewhat, as they do not share common cultural, linguistic and racial characteristics. On the other hand, if they have chosen to live, pass through or do business in an Aboriginal community, it can be assumed they recognize and accept its jurisdiction. It would not be cost-effective, especially in remote communities, to have the provincial courts be called upon to be responsible for the small number of non-Aboriginal people who are resident on reserves, or who are temporarily present when incidents occur that give rise to legal repercussions.

Although the provincial courts could be called upon to enforce the prevailing Canadian law in reference to non-Aboriginal people, this would generate unnecessary confusion as to the law that applied within the reserve and who would enforce it.

Dividing jurisdiction on racial grounds alone would engender complex jurisdictional and conflicts of laws questions when the event that gave rise to the litigation or the criminal charge involved both Aboriginal and non-Aboriginal parties. One clear lesson that can be learned from the American Indian tribal court experience is that the interjurisdictional quagmire prevalent there should be minimized, or avoided if at all possible.

Therefore, it would appear to be most efficacious and justifiable for Aboriginal justice systems to have exclusive, original jurisdiction over all persons when the event arises within the territorial limits of the court, regardless of the background or ancestry of the individual.

Probably the soundest reason for concluding that Aboriginal courts should have total jurisdiction over all persons, matters and offences within the geographical boundaries of the Aboriginal community is the fact that Aboriginal courts should not be considered subordinate to provincial courts. Clearly, they should not be seen as being under the jurisdiction or as being controlled by the orders of those courts. Jurisdictional neatness and a sense of propriety demand that Aboriginal courts be seen as being on a par with provincial courts in all respects.

We recommend that:

 All people, Aboriginal and non-Aboriginal, within the geographical boundaries of a reserve or Aboriginal community, be subject to the jurisdiction of the Aboriginal justice system in place within that community.

Subject Matter

The third prong of the judiciary’s authority also contains the recurring issues of the first two categories of jurisdiction: on and off Aboriginal lands, and Aboriginal and non-Aboriginal litigants. It is readily conceivable that the subject matter jurisdiction could differ, based on both the background of the litigant and the location of the incident. The section 107 Indian Act justice of the peace system makes both distinctions. All persons who violate that Act, regardless of race, are within its jurisdiction. However, violations of the Indian Act are restricted almost entirely to events that occur on reserves, thereby in practice largely limiting this court to band members in other than highway traffic offences. The limited Criminal Code jurisdiction is not tied to the borders of the reserve, but is restricted solely to incidents involving status Indians or those entitled to be registered.

The American Indian tribal courts also possess similar variations in the subject matters they can handle, as a result of legislation passed by Congress and the jurisprudence of the federal courts. The U.S. tribal courts have criminal jurisdiction only over Indians who are members of the tribe, rather than all persons, as they do in civil matters arising within Indian Country.

On the other hand, the Indian Child Welfare Act of 1978 extends extraterritorial jurisdiction to tribal courts over child welfare matters involving tribal members outside Indian reservations. This applies not only where the apprehension of children has occurred off the reservation, but even where it occurs in another state.

Interestingly, proposals were before Congress in 1988 to expand this directed transfer of jurisdiction so as to apply as well to Canadian Aboriginal children, which would have resulted in Canadian Indians in the United States being dealt with in an Aboriginal court in Canada. The absence of Aboriginal courts was envisaged and the bill proposed that the case then would be referred to the relevant Indian government or Aboriginal organization where no Aboriginal court existed to accept jurisdiction.102

A further issue which requires resolution relates not to the field of law, but to the lawmaker. That is, whose law would an Aboriginal justice system in Canada apply? One obvious option is for the court to apply the existing law of the dominant society. An Australian scholar and barrister active in Aboriginal legal issues for a number of years, Bryan Keon-Cohen, framed the crucial questions raised through the alternatives posed by legal pluralism in this way:

In assessing social activity and the resolution of disputes, whose standards are to be applied, those of the Aboriginal community involved, or those of the majority community? When assessing what is right or wrong, condoned or condemned, humane or inhumane, legal or illegal, or just or unjust, should one be ethnocentric and apply Western notions; should one attempt to see things as Aboriginal people see them and judge accordingly; should one have “a bet each way” according to circumstances; or is the only realistic approach to accept that you have no choice in the matter? These are intransigent problems, but they are vital, for once a stance is adopted, all else follows.103

The last decade has witnessed a growing realization by Canadians generally, as well as by the federal, provincial and territorial governments, that Aboriginal people should regain their right to govern themselves. A unanimous report by a parliamentary committee104 advocated acceptance of Indian self-government and called for its implementation through administrative, legislative and constitutional means. That report specifically recommended that Indian First Nations receive authority to enact laws in a number of important areas, as well as to control their own justice systems.

Implicit within our recommendations is that the subject matter of the Indian justice system would consist, at least to a significant degree, of laws passed by the Indian governments. Although the Aboriginal constitutional conference process from 1983 to 1987 did not succeed in achieving sufficient support for a specific amendment on self-government, the first ministers who participated joined with Aboriginal and territorial leaders in endorsing the concept of Aboriginal self-government.

It would be, therefore, a regressive step to assert that the substantive law to be applied within Aboriginal communities by Aboriginal justice systems would come only from "foreign" sources. This approach would have the effect of undermining the limited and delegated spheres of law-making that are already in the hands of band councils.

We recommend that:

 Aboriginal communities be entitled to enact their own criminal, civil and family laws and to have those laws enforced by their own justice systems. If they wish they should also have the right to adopt any federal or provincial law and to apply or enforce that as well.

 Aboriginal traditions and customs be the basis upon which Aboriginal laws and Aboriginal justice systems are built.

This would reflect an appreciation for the unique nature of Aboriginal cultures, as well as the desire of Indian, Inuit and Metis peoples to restore to their communities a sense of harmony and respect for the teachings of elders.

Using customary law as the foundation for a legal system is not uncommon. Several African countries, along with Papua New Guinea, have constitutional provisions declaring that traditional law will have this status.105 Furthermore, the Canadian courts have given recognition, albeit quite sparingly, to the validity of Indian and Inuit customary law for well over a century.106 Our courts have done so, however, by incorporating aspects of traditional law into the common law, and giving it legal force and effect as part of the common law when not in conflict with federal or provincial legislation.

What we suggest is in keeping with the function served by the common law. Just as the English common law forms the backbone of the Canadian legal system, and is supplemented, modified or even overturned by express constitutionally valid legislation, the customary law of the particular Aboriginal nation or group could function in the same way.107

Aboriginal customary law has not been fixed in some static sense, but, instead, has continued to evolve slowly to meet the changing needs, values and circumstances present within Aboriginal communities. It has retained, however, a respect for the ways of the past, while being concerned about the interests of generations yet to be born. This philosophical orientation toward law and life has much to offer as the underpinnings for a system dedicated to the pursuit of justice.

Traditional law, then, would be subject to alteration by those express laws which are designed to preclude its operation through fully occupying the field or containing explicit provisions that contradict customary law. Aboriginal justice systems would also be free to foster the development of traditional law by further elaborating its terms in a fashion equivalent to the common law. In doing so, they would be reflecting the changes that have occurred within the communities, since the rules that govern daily life are the substance of customary law.

Declaring that customary law would form a foundation for the Aboriginal justice system does not determine the precise legal parameters of such a system. "Aboriginal customary law" is merely a label that describes a source of law, rather than a particular branch or field of law. Its status is similar to the "common law," except that the latter emanates from the jurisprudence pronounced by the courts, while traditional law flows from the customs of the people, practised over generations. Each tribe or Aboriginal community, if it chose to codify its traditional laws, would have to be satisfied that a particular custom or practice passed down from generation to generation is of sufficient import to become so enshrined, but we believe that each Aboriginal community is capable of reaching that decision on its own. If it chose not to codify its traditional laws, it would have to rely on each judge to apply traditional law ( or, more properly perhaps, "Aboriginal common law") as he or she understood it.

The customary law regimes of all Aboriginal nations in Canada with which we are familiar commonly contained rules that determined what constituted criminal activity, as well as appropriate sanctions for its infraction. Likewise, traditional law regulated marriage, divorce, adoption, responsibility to children, care for the elderly and infirm, private ownership of personal property, obligations to share food and other vital goods, hunting and fishing practices, inheritance of personalty, the mechanism of selecting leaders of the nations or government, and citizenship. Traditional law also dictated what was suitable behaviour regarding Mother Earth and all living things, which we might characterize in legal jargon as environmental protection and real property laws. The thrust of customary law, then, was to regulate interpersonal conflict, and to determine each person’s position within the clan, membership in the community, participation in governmental structure, and the relationship with the natural environment in which he or she lived.108

This approach requires that these courts have civil, family and criminal jurisdiction. The authority would include, but not necessarily be limited to, the following areas (when framed in Canadian legal terminology):

• Criminal law including procedure.

• Family law including child welfare, adoption, marriage solemnization, divorce, child custody, guardianship and matrimonial property distribution.

• Real property relating to interests in Aboriginal lands such as rights of occupancy, usage, easements, natural resource development, lease and sale.

• Personalty including the law regarding gifting, barter and sale.

• Estates in terms of inheritance by will or intestacy.

• Harvesting of fish, game, waterfowl, fur-bearing animals, wild rice and other foods as well as renewable natural resources.

• Membership within the community.

• The election or selection of government leaders in accordance with the procedure established by the community.

• The recognition and enforcement of the traditional laws and customs of the tribe or Aboriginal community.

• Environmental protection and management.

• Civil jurisdiction including civil suits and the enforcement of contracts between band members, and between band members and non-band members where the contract or matter occurred in Aboriginal lands.

• The enforcement and recognition of orders of courts from other jurisdictions.

The foregoing list would be limited most easily to territory that is exclusively in Aboriginal hands, such as reserves administered under the Indian Act. To do so, however, would be unduly restrictive for two reasons. First, some of these matters naturally extend beyond the boundaries of any one community. For example, the beneficiaries under a will may live throughout the province or further afield. While parents normally may be domiciled on a reserve, they could temporarily be present or resident in a town when their children are in need of protection. Drawing the territorial boundaries too tightly could preclude the Aboriginal courts from having authority in many cases in which there is a clear and pressing community interest. Likewise, it might encourage a flood of litigation centring on disputes between Aboriginal courts and the general system over who has jurisdiction, as has occurred in the United States. This would be a considerable waste of time, talent, energy and precious resources. Therefore, all possible efforts should be taken to avoid a similar result in Canada. As mentioned earlier, restricting the courts to Aboriginal territory also would exclude off-reserve Aboriginal people entirely.

Adopting the principle of following customary law to delineate subject jurisdiction as an initial step would mean that this court system should also have a mandate in the criminal law sphere. In some ways this reflects the history of the section 107 Indian Act justice of the peace experience. It also meets the particular needs of Aboriginal peoples to help reduce the level of conflict that exists between the original peoples and Canadian criminal law.

Another factor that must be considered is the capacity of the community to handle all forms of crime. Indian and Metis communities usually are small, with most containing less than 1,000 people. Acts of violence like murder and sexual assault are naturally very stressful for many people within the extended family constellation of these communities, and not just for the immediate families of the victim and the offender.

The responsibility to prosecute and judge the offence within these small groupings might impose a greater burden than the communities can or wish to bear. Although agreements can be reached for sentences of incarceration to be served in federal and/or provincial penitentiaries, some communities still may prefer to avoid the anguish of having to deal with the more serious crimes and the possibility of long sentences. If this proves to be true, then Aboriginal governments may wish to relinquish authority over violent crimes. We say, however, that this should be a decision for each Aboriginal community to make.

If they choose to do so, such a decision suggests that a division of jurisdiction be constructed in which some of the current indictable offences would remain within the existing court system. A further variation would be to develop a list of offences that could fall within the concurrent jurisdiction of Aboriginal and provincial courts. This would mean that the Aboriginal system could decline jurisdiction either in specific cases or with respect to certain offences for a period of time, leaving those offences to be prosecuted in the existing system.

The Aboriginal court then would have full authority over all other criminal matters, while having the opportunity to expand its mandate over time to assume jurisdiction over the entirety of the list of concurrent offences, if it so chose. The important point to keep in mind is that it would be up to the Aboriginal people and their governments to make those decisions.

We suggest that in the area of criminal law, Aboriginal justice systems begin with jurisdiction over summary conviction matters, and then acquire jurisdiction over some indictable matters and, ultimately, all matters. In our opinion, that is the most workable way to stage in jurisdiction and to enable the Aboriginal systems to become established.

Urban and Non-Aboriginal Communities

In considering the question of urban Aboriginal people, we recognize that the approach to Aboriginal justice inside and outside Aboriginal communities cannot be identical. That is, one must anticipate the creation of one type of Aboriginal justice approach in Aboriginal communities, and a different approach in urban and non-Aboriginal areas. On the other hand, as it is within the existing system, there likely will be situations where the court within an Aboriginal community should be able to have jurisdiction in a case involving a matter that occurs or arises elsewhere.

We recommend that:

 The jurisdiction of Aboriginal courts within Aboriginal lands be clear and paramount, and that in appropriate cases Aboriginal courts be recognized as having jurisdiction over some matters arising in places other than the Aboriginal community, such as:

• Child welfare cases in which the domicile of the child is the Aboriginal community over which the court has jurisdiction.

• Cases in which a member of an Aboriginal community breaches the laws of his or her community, such as where a First Nation member hunts in a manner that is contrary to a First Nation law or regulation enacted by the government of that First Nation.

• Cases in which an individual has breached a law of the Aboriginal community and has left the community to avoid detection or responsibility.

• Civil matters in which the parties have agreed to submit the matter to an Aboriginal court for determination.

Within their borders, the Aboriginal courts must have exclusive, original jurisdiction so as to avoid forum-shopping by litigants, to reduce the potential impact of possibly contradictory rulings between the Aboriginal and provincial courts, and to give proper recognition to the stature and importance of the new system.

At the same time, different, alternative approaches must be established in non-Aboriginal communities where the numbers of Aboriginal residents are sufficiently large. In this situation, the approach can involve alternative dispute resolution mechanisms and alternative measures attached to the existing court system, which take into account, or are based upon, the cultures of Aboriginal people.

The development of an Aboriginal alternative measures component of an existing non-Aboriginal justice system could include the development of a peacemaker program supervised by judges of Manitoba’s courts. In criminal, family and property disputes, where the parties are willing, they could agree to bring the complaint before a peacemaker, rather than initiating formal judicial proceedings. The peacemaker, who would have quasi-judicial status, would become seized of the case through the consent of the parties and would attempt to fashion a mutually acceptable resolution in accordance with provincial or federal law. Failure to reach agreement still would leave the parties able to pursue their civil remedies or proceed on the criminal charge in the existing system.

It also would be possible for the parties to agree to vest in the peacemaker the power to render binding decisions when mediation is unsuccessful. In this way, the peacemaker would change roles after the mediation stage and become an adjudicator, not unlike the very common way of resolving commercial and labour relations disputes. Drawing upon the employer-employee collective bargaining experience, the authority of the peacemaker, when acting as an adjudicator, could be clarified further through court rules or legislation.

Where the parties agree, the peacemaker could have the power to subpoena witnesses, to apply Aboriginal custom, and to render decisions that would be binding on the parties and that could be enforced as an order of the court. This variation could be especially attractive in the off-reserve context where the parties wish to avoid protracted and expensive litigation, yet are unable to reach consensus on an acceptable outcome through the intervention of the peacemaker as mediator.

The territorial jurisdiction for Aboriginal courts on lands declared to be for the use and benefit of individual First Nations, or for the Metis if that occurs in the future, is also not quite as clear-cut as it might appear on first impression. The Indian Act has allowed, and some might suggest it has fostered, the surrender of reserve lands to the Crown for alienation to non-Indians. It clearly is possible for this land to be considered as falling within the territorial jurisdiction of this special court system. On the other hand, non-Indian land users may assert that they would suffer a disadvantage if they were compelled to rely upon the Aboriginal justice system, rather than upon the provincial courts, as they would be a minority in the former, would not understand its underlying values or its substantive law, and would have no control over the government that operates the court. In other words, ironically, non-Indians might complain that this would put them in the same situation as Aboriginal people have been in relation to the Canadian legal system since the latter was imposed upon the original inhabitants of this land more than a century ago.

As is the case with those who move to another country, one could well assert that such people have emigrated to another legal regime to which they agree to be subject. That would appear to be the most logical and reasonable response to that issue.

Therefore, we conclude that all land totally surrounded by the external boundaries of an Indian reserve, whether included within the legal definition of the reserve or not, should be within the exclusive jurisdiction of the Aboriginal court in the following circumstances:

• Where surrendered land that was once part of an Indian reserve has been conditionally surrendered under the Indian Act for leasing purposes.109

• Where land within an Indian reserve has been leased or is subject to a certificate of possession or occupation without a surrender under the Indian Act.

• Where land within the external boundaries of an Indian reserve was unconditionally surrendered or conditionally surrendered for sale but never sold, such that it remains subject to an underlying Indian interest under the Indian Act.

• Where land within the external boundaries or contiguous to an Indian reserve was purchased in fee simple by the band, but has not received reserve status under the Indian Act.

• Where land within the external boundaries of an Indian reserve was formerly reserve land and remains surrounded by reserve land such that access is only possible through the reserve.110

• Where the land continues to be reserve land whether held for the benefit of the band as a whole or through allotments to individual band members.

We recommend that:

 The Manitoba Metis Federation and the government of Manitoba establish a forum of elected and technical representatives with a mandate to identify those Metis communities in the province where Metis justice systems can be established.

 Metis communities that are identified as such by agreement of the Manitoba Metis Federation and the government of Manitoba be defined geographically through negotiations between the government of Manitoba and the Metis people of each community for the purpose of establishing a Metis justice system.

 The presence of non-Aboriginal people within a Metis community should not prevent the community from being declared a Metis community, and the legitimate concerns of that minority should be respected.

 If, and to the extent, that juries are a part of Aboriginal justice systems, jury selection processes be implemented which permit non-Aboriginal persons to sit on juries, provided they comply with appropriate residential criteria established by the community. TOP

 

Court Facilities TOP

Courts already function in remote areas of Canada in conditions that differ dramatically from the oak-panelled courthouses of the cities. The fact that court is conducted in legion halls, laundromats, schools, gymnasiums, restaurants, community centres and the like may make the dispensation of justice more uncomfortable but not less fair. However, a suitable courtroom should be created in each community, along with an office to serve as the judge’s chambers and another to function as an interview room for clients with their counsel. In those communities with a resident court, there also will be a need for office space for the rest of the personnel (i.e., court clerk and prosecutor at a minimum as well as the staff defender if there is one). The accommodation does not have to be plush or immense to fulfil this need. As well, the possibility exists for the court or justice facility to be part of a larger complex, such as a band or community council office building. As a result, the capital cost does not have to be prohibitive and should be able to be readily met. TOP

 

Personnel TOP

Judges

The first issue that arises is eligibility for appointment to the bench. If a law degree and membership in the Law Society is a precondition, then very few Aboriginal people in the province would be eligible for selection. This would mean that most of the judges, in what is intended to be an Aboriginal justice system, would be non-Aboriginal lawyers. This is hardly a satisfactory result, even on a transitional basis.

Communities could develop the standards that they believe are appropriate. These include minimum age, literacy level, language fluency (e.g., English and the Aboriginal language of the region), familiarity with traditional law, as well as suitable personal characteristics. Operating a short, intensive training course for Aboriginal applicants could be utilized as a screening process so that only candidates who successfully complete the program would be eligible for appointment to the bench.

A different strategy is to require prior experience in the legal system as a constable, court communicator or paralegal. The Americans have largely opted for having no official eligibility criteria and many judges have to learn on the job after their appointment. It would seem to be preferable, particularly in the complete absence of any experienced judges available as mentors, to favour a somewhat more rigorous approach.

There will still need to be a conscious effort devoted to developing training programs for the new judges. The Canadian Judicial Centre, the Centre for the Administration of Justice, the Western Judicial Education Centre and the provincial court judges’ associations all operate their own training sessions in recognition that even senior judges are in need of refreshers and of exposure to recent developments in the law. The same will hold true for any Aboriginal court judges who do not have a full legal education and likely will be more isolated from law libraries and experienced counsel.

Therefore, a special intensive program tailored specifically for these judges, that includes an overview of the relevant legal system, as well as basic criminal and civil law programs, should be regularly available with videotaped materials provided to all judges for their own personal use, both before and after training sessions. Videotapes and written materials should be provided to all judges upon their appointment.

As the American Indian tribal court experience demonstrates, there will be a need for periodic training sessions of a more advanced nature so that Aboriginal judges are able to continue their education. This would also provide an opportunity for Aboriginal court judges to meet together to share their experiences. An independent body under Aboriginal control should offer this service in collaboration with existing judicial education programs. Aboriginal judges, we are sure, will want to draw upon each other’s experience and expertise, as well. In another part of the report we recommend the establishment of an Aboriginal Justice College. That institution might deal best with Aboriginal judicial education.

A selection process will have to be determined. Many American tribes have opted for the electoral approach, which would be in keeping with the way a large number of First Nations choose their chiefs and councillors.

On the other hand, electing judges is neither the traditional Aboriginal nor Canadian way. It might leave judges vulnerable to local pressures from voters, or at least with a reasonable apprehension of such susceptibility. If an appointment is to be made, then one obvious choice is for it to emanate from a suitably representative Aboriginal organization. If our recommendation of an intertribal system is adopted, the system’s board of directors could seek out and appoint judges.

Another factor to consider is tenure. American tribal courts are plagued continually by high turnover, induced, in part, by the relatively short terms in office that are common. This result should be avoided, and especially so in the early days of a new court system. On the other hand, it will be hard to predict how Aboriginal people in Canada will enjoy this position and how they will perform in office. Some American tribes have developed a probationary scheme in which the judges initially receive a short-term appointment of one or two years. If their performance is found to be satisfactory, then they are confirmed in office for a longer period (e.g., 10 years or life). We would suggest this approach be tried.

A further common problem with tribal courts in the United States has been the rather poor remuneration. While the inclination will be to establish a salary scale different from that associated with the general court system, every effort should be made to avoid that. Judicial independence and status demand that there be some consistent recognition of the importance that we place on the position of the judiciary in our society.

We recognize once again that the matter will have to be left to each Aboriginal community to resolve, but Aboriginal communities should be forewarned that judicial independence is essential to the operation of a court system and salaries should be paid which will allow judges to be free to devote their full time and effort to their judicial functions.

Therefore, the salary of a judge should be commensurate with the position. As well, a judge should be entitled to a full benefits package, including a pension plan, so that the position truly can become a career.

One aspect of this issue is civil liability. Aboriginal judges should be as free from liability as are other judicial officers within existing systems. This naturally follows upon the principle that members of the judiciary require freedom from liability so that they may exercise their authority without fear or favour. Judges require protection from unwarranted attacks by disgruntled litigants.

There must be, however, a quid pro quo to this exemption. That is, there will need to be a public complaint mechanism whereby allegations of improper judicial behaviour can be raised and pursued. The Aboriginal Judicial Council could be accorded the capacity and authority to meet this objective. As with the Canadian Judicial Council, it would be preferable that this council merely investigate and report with its recommendations, rather than be empowered to dismiss the offending judge itself. Therefore, the group making the initial appointment would receive a report and recommendation, and be free to adopt, alter or reject it.

We recommend that:

 Aboriginal judges be exempt from all civil liability in reference to actions or omissions while in the exercise of their judicial capacity.

 Through appropriate Aboriginal legislation, an Aboriginal Judicial Council be established to which any person can complain of judicial misconduct on the part of an Aboriginal judicial officer.

 The same principles of judicial conduct be applied to Aboriginal judges as apply to other members of the judiciary.

Administrative Staff

Aboriginal courts will need staff in order to function. Court staff will be necessary to manage the court office, operate recording devices during proceedings, prepare case dockets, dispense court forms, keep court files and records, provide summary explanations of the court system, assist parties to complete court forms properly, prepare court orders for signature and generally manage the court. Police, probation and parole officers also will be required.

Lawyers

Aboriginal justice systems will require personnel to prosecute criminal charges. These could be either lawyers or paralegals. If the system depends upon paralegals to do this work, then lawyers will have to be engaged, we suspect, to assist them, or people with some legal experience will have to be sought.

There also will be a need for defence counsel. We suggest that as a general principle, Aboriginal courts permit any person with whom an accused feels comfortable to represent the accused. Appearing by agent is already permitted in summary conviction matters in our courts, but it could be expanded to permit such representation for all matters. Presumably, Aboriginal courts will also wish to permit non-Aboriginal lawyers to assist their citizens.

It is important to reduce the likelihood of Aboriginal courts becoming too similar to the general regime, both in terms of style as well as in the substance of the law, so as to become distant from the communities that they are created to serve. This can be minimized by fostering the development of Aboriginal paralegals with full rights of appearance akin to the tribal advocates in the United States. The experience in the American tribal court system has been that Aboriginal people who have worked in a variety of fields outside their reservations have been attracted to return to their home communities to seek judicial appointment, or to work in some capacity within the tribal court system. We believe that we would see a similar trend in Manitoba. We believe that there are a variety of well-qualified Aboriginal people who are available to fill the various personnel positions that will become available.

As to any alleged misconduct on the part of a prosecutor or a defender, judges of the Aboriginal courts could be authorized to discipline any prosecutor or defence counsel who appears in this system. The appropriate chief judge of an Aboriginal court could sanction counsel financially for improper or unprofessional conduct, or suspend the person’s right to practise in that court. TOP

 

Resources TOP

Aboriginal courts will require financial resources in addition to human resources. A few may be able to become self-sufficient in a sense by providing enough revenue through the imposition of fines and court costs to cover the budgetary needs of the courts. Nevertheless, this is unlikely for the vast majority of Aboriginal communities. Furthermore, it is inappropriate to place this burden on a court system, as it creates the image that there is a personal incentive for the judge to make use of heavy fines as a sentencing option rather than other alternatives, so as to pay for his or her salary. This is not an image that should be fostered.

Therefore, a budget is required of sufficient magnitude to meet salaries, office costs, travel expenses and training needs. The overwhelming majority of First Nations and other Aboriginal groups simply do not at present have this capacity from internal revenue. Therefore, if Aboriginal courts are to become a reality, there will need to be a system of transfer payments between federal and provincial governments and Aboriginal systems.

The financial responsibility appears to be a joint one between those two levels of government, as we see it. The federal government has constitutional jurisdiction for Indian, Inuit and Metis people. The Province has constitutional responsibility for the administration of justice. Both have a fiduciary obligation to Aboriginal people.111

It is a fair assumption that creating Aboriginal courts will lead to significant reductions in caseloads within the provincial system which, when combined with the elimination of the need to continue providing court services in Aboriginal communities, should translate into noticeable cost savings to the Province, which it can pass along to the Aboriginal systems. TOP

 

 

 

 

The Charter of Rights and Freedoms TOP

One of the major challenges that will confront the establishment of an Aboriginal justice system in Canada is resolving the tension between individual and collective rights. The bias of the common law system in favour of the concept of due process and regard for the rights of the individual has been buttressed in recent decades by the Canadian Bill of Rights and the Charter of Rights and Freedoms. It is natural to ask whether the Charter would apply in an Aboriginal court.

The answer is unclear because it depends, in part, on how the Aboriginal courts are created. If they were to be established or recognized by federal or provincial legislation, or some combination thereof, then that legislation would be subject, of course, to the Charter. If the new court system is a function of the "existing aboriginal and treaty rights of the aboriginal peoples of Canada" within the meaning of subsection 35(1) of the Constitution Act, 1982, then the courts would be outside Charter scrutiny, as the foundation for the courts would emanate from Part II (i.e., section 35) of the Constitution rather than Part I (i.e., the Charter of Rights and Freedoms).

In addition, section 25 of the Charter is designed to serve as a shield for "aboriginal, treaty or other rights and freedoms of the aboriginal peoples" from any challenge based on the Charter. It should be noted, however, that the Charter’s concern with sexual discrimination is adhered to as an amendment to section 35 which came into force in 1984, guaranteeing all Aboriginal and treaty rights "equally to male and female persons." (35(4))

What may be more important than the application of the Charter to the court system itself is the relevance of the Charter to the law administered by these new courts. Here again, the current state of the jurisprudence is unclear. Where the law being applied is a by-law enacted pursuant to sections 81, 83 or 85.1 of the Indian Act, one would presume that the Charter would apply from the beginning, as this would represent the exercise of powers delegated by Parliament to a subordinate government. Not only does subsection 32(1) of the Charter make it clear that it applies to all federal legislation, thereby including the Indian Act and any regulations or by-laws passed pursuant to it, but the courts also have been interpreting this provision broadly so as to apply it to a wide range of entities exercising statutory powers, such as municipalities, school boards, universities and administrative tribunals. Section 25 might mean, however, that some of these laws cannot be challenged for certain reasons, such as distinguishing on the basis of race contrary to subsection 15(1).

The situation could well be different, however, where the law has been enacted by virtue of a sovereign power held by an Aboriginal government. This point reflects the debate vigorously raised by Aboriginal organizations since 1983 that they already possess a right of self-government, or self-determination, by virtue of their inherent sovereign status since time immemorial, and that this right now is protected by section 35. The so-called "full box" argument has received considerable support by the recent decision of the Supreme Court of Canada in the Sparrow case.112

One can reasonably expect the matter to continue to receive the attention of courts in the future. It is not possible at this time to predict the outcome of future cases. It can be said, though, that if the Canadian courts conclude that exercising legislative powers over internal matters is an Aboriginal or treaty right, creating a result analogous to the domestic dependent nationhood status of Indian tribes in the United States, then it would follow logically that the laws so enacted are outside the Charter, just as American Indian tribal law is unaffected by the American Bill of Rights.

A related issue is the position of the traditional or customary law of the Aboriginal nations that could be applied by this new court system. Aboriginal courts must be free to establish and develop their own rules and procedures in a way that is culturally compatible with their history and community. To do so they will have to draw upon their traditions and customs. Their situation is akin to the common law. What if there were a conflict between a particular customary law and the Charter?

For example, the Charter in paragraph 11(c) guarantees that an alleged offender is not a compellable witness in proceedings against himself or herself. This may conflict with some traditional laws that expect people to answer the complaints that have been lodged against them as part of the process of finding the truth and of healing the conflict within the community. Upholding the Charter principle of protecting the individual’s rights could well be seen as violating the more accepted and long-standing primary law of that nation.

If traditional law is also viewed as part of Aboriginal and treaty rights, then it could gain the same exemption previously discussed regarding the import of sections 25 and 35 of the Constitution Act, 1982. Furthermore, if the Aboriginal court were to choose the Charter over the customary law of the people, the judiciary might find itself in the position of operating contrary to the spirit and rationale underlying the establishment of the court in the first place.

This issue is not a simple one, particularly as a growing number of Aboriginal people have come to accept the attractions of an emphasis on individual rights and liberties.

In addressing this issue before the Inquiry, the Assembly of Manitoba Chiefs stated:

The Charter of Rights and Freedoms is a recent measure, but an old concept. Furthermore, it contains some universally recognized principles that should never be violated by any government.

If we as First Nations espouse our self-determination, we realize and accept responsibilities and obligations that accompanies that maturity. We can assure you that we are not displeased by the prospect that we have to accommodate basic and fundamental rights and freedoms within an Aboriginal justice system.

It is important to remember that traditional systems of justice have not been based on the adversarial approach to arrive at this position. We believe that the adversarial approach does put rights and freedoms at risk.

There is likely less danger of rights violations in a system that has a mediation orientation. The decision by individual communities as to the nature of our system of justice will determine how extensive and specific the elaboration and observation of rights shall be.

We started this particular discussion on the Charter by pointing out how recent it really is. No meaningful consideration has taken place of the significance of section 25 of the Charter, which many writers and interested observers have described as a shield against potential prejudice that may be visited upon the collective interest of Aboriginal people.

If indeed that was the intent, we would have to say that any attempt by federal or provincial authorities to extract a promise by Aboriginal peoples, that we would ensure full compliance by Aboriginal justice systems of the Charter of Rights and Freedoms, would amount to nothing less than blackmail and hypocrisy.

The reality is federal and provincial authorities have two important shields of their own against the prospect that the Charter will completely handcuff their power and procedures.

The very first section of the Charter subjects all of the rights and freedoms enumerated thereunder to reasonable limitations as may be determined in the interests of Canadian society. As well, the notwithstanding clause appearing as Section 33, is a complete and powerful tool for government to utilize as they so choose.

We would again close our commentary on this part by cautioning those concerned against presuming that accommodation with respect to the Charter would not be forthcoming from an Aboriginal justice system.

A preferable resolution would be to seriously examine the position raised by the national Aboriginal organizations from time to time during the Aboriginal constitutional reform process from 1982 to 1987, of developing an Aboriginal Charter of Rights and Freedoms. That is, to create a tailor-made Charter that incorporates only those fundamental freedoms and civil liberties that do not violate the beliefs and paramount collective rights of the Aboriginal peoples. We would suggest that there is a need to explore the American experience in this regard so as to avoid some of the difficulties that have been created by the imposition of the Indian Civil Rights Act and to realize that there would be significant resource implications for Aboriginal justice systems.

Aboriginal governments would be well advised to give this matter careful consideration as part of the exercise of establishing their own court system. They may wish to consider enacting their own bill of rights and human rights laws to forestall external intervention and to address the valid interests that may be voiced by their own constituents. This would be a strategy in keeping with the objective of Aboriginal self-determination, while also responding to the concerns that likely will be expressed by the broader Canadian population. This is an especially meaningful issue in those Aboriginal communities that contain a number of non-Aboriginal residents and employees who will be worried about how this system and its laws will affect them.

We recommend that:

 First Nation governments draft a charter of rights and freedoms which reflects Aboriginal customs and values. TOP

 

Conclusion TOP

There is no question in our minds that jurisdiction to operate a court system should be accorded to Aboriginal people. The extent of jurisdiction initially should be a matter of decision by each community, and then should be a matter of negotiation and legislation with the federal and provincial governments. Most Aboriginal communities probably would wish to deal initially with a limited number of matters and to progress at their own pace. We encourage that thinking, particularly in light of the inexperience prevalent within Aboriginal communities.

We believe that incremental changes in the justice system cannot adequately address the problems that exist. We believe that the establishment of Aboriginal justice systems is the only appropriate response to the systemic problems inherent in the existing system that have given rise to extraordinarily high rates of Aboriginal people in the courts and in jail in recent years. It offers the logic of redressing in a significant way the wrongs inflicted on Aboriginal people by a foreign, unknowledgeable and insensitive system.

We believe an Aboriginal justice system will deal with legal matters affecting Aboriginal people in more appropriate ways. We are convinced the result will be of substantial benefit not only to Aboriginal people, but to all Manitobans. TOP

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