Haslip, Susan --- "The (Re)Introduction of Restorative Justice in Kahnawake: 'Beyond Indigenization'" [2002] MurdochUeJlLaw 7; (2002) 9(1) Murdoch University Electronic Journal of Law

The (Re)Introduction of Restorative Justice in Kahnawake: "Beyond Indigenization"[1]

Author:	Susan Haslip BA, LLB University of Ottawa
Issue:	Volume 9, Number 1 (March 2002)

Contents:

• Foreword
• Introduction
• Part I Historic Overview - Governance and Conflict Resolution
• Overview of Kahnawake
• Pre-Contact
• Clan System
• Governance
• Conflict Resolution
• Post-Contact
• Governance
• Conflict Resolution
• Skenn:en A'onsonton
• Conclusion - Part I
• Part II - Critical Assessment of Skenn:en A'onsonton
• Conclusion - Part II
• Overall Conclusion
• Appendix A
• Bibliography
• Texts and Articles
• Agreements/Legislation
• Case Law
• Websites
• Notes

Foreword

While I am not an Onkwehonwe ('original being'), the injustices (in all of their manifestations) that continue to plague the Onkwehonwe of Turtle Island (Canada) and their descendants are of grave concern to me.[2] To date, my concern has, with few exceptions, focussed on critiquing the impact of legislative amendments to the Criminal Code of Canada[3] (Criminal Code) vis. a vis. sentencing and First Peoples and the judicial interpretations of those amendments.[4] In this paper I venture down a new path and consider 'Skenn:en A'onsonton' (pronounced 'Sken: na A oon soon dun' and to be said quickly,[5] translation from the Kanien'keha ('Mohawk') language meaning 'to become peaceful again'),[6] a contemporary restorative justice process based on traditional Rotinohshonni (or Haudenosaunee, 'Iroquois' or 'Six Nations') principles of conflict resolution being re-introduced by the Kahnawa'kehró:non (people who live by the rapids also known as Kahnawake 'Mohawks') to the Community of Kahnawake, Kanien'keha ('Mohawk') (Nation) Territory as an alternative to the Canadian criminal justice system.[7]

My goal in writing this paper is to promote understanding of Skenn:en A'onsonton both inside and outside of Kahnawake and, through a consideration of the strengths of and challenges faced by this initiative, to speculate on the likelihood that this initiative will re-root itself in Kahnawake.[8]

This paper is written with the outmost respect for the Kahnawa'kehró:non, the Community of Kahnawake, the Kanien'kehaka ('people of the flint or 'Mohawk' people) the Rotinohshonni ('people of the Longhouse or 'Iroquois' people) and the Onkwehonwe (or 'original beings') and their descendants and is offered as a tool to facilitate empowerment[9] in the hope that the Skenn:en A'onsonton initiative will empower the Kahnawa'kehró:non people and the Kahnawake community to find "the way to live most nicely together" again.[10]

Where possible I have incorporated Kanien'keha ('Mohawk') terminology throughout this article out of respect for the fact that "[n]ative languages embody indigenous peoples' identity and are the most important element in their culture. They must be revived and protected as both symbols and sources of nationhood."[11] The use of the past tense to describe historic governance and conflict resolution processes amongst the Rotinohshonni is not intended to suggest the extinction of such processes/aspects of such processes in contemporary Kahnawake. Any inaccuracy in this paper, whether with respect to the substantive content or (mis)use/(mis)understanding of the Kanien'keha ('Mohawk') language is solely my responsibility "as the one who has woven this article together."[12]

I wish to thank my professor, kawzi-Mgizi (Ronald C. George) (also known as 'Spike'), Ojibway member of the Anishinabek Nation, Kettle and Stony Point First Nation[13] (University of Ottawa) for encouraging me to explore this new path. Thanks also to Ron Skye (Kahnawake Justice Commission) for responding to my questions; Dale Dione (Karonhiahente, Kahnawake community member, Longhouse person, trained facilitator and co-ordinator of Skenn:en A'onsonton) and Coreen Harding of the National Institute for Conflict Resolution at the University of Waterloo for forwarding material to me; Professor Jane-Dickson Gilmore (Carleton University) for sharing her research materials with me on very short notice; my partner, Victoria Edwards (Métis), for being there, tracking down materials and reading earlier drafts of this paper; Professor Larry Chartrand (Métis) (University of Ottawa) for referring me to a number of sources, particularly Dr. Alfred's books; Jim Potts (Temiskaming First Nation and Inspector with the Ontario Provincial Police) for sharing his thoughts on a variety of issues and his re-telling of the Mukwa and Jay legend and to the Graduate Studies Office at the University of Ottawa for their flexibility and patience.

Introduction

1. By now (Spring 2002) it is trite to say that the Canadian criminal 'justice' system has failed/continues to fail First Peoples and that justice has been/continues to be denied to the Onkwehonwe and their descendants.[14] The Royal Commission on Aboriginal Peoples attributed this failure to the very different world views of the Onkwehonwe and non-Onkwehonwe and their descendants on such basic elements as the substantive content of justice, how justice is achieved and sentencing that does not respond to the realities of the Onkwehonwe, their descendants or their communities.[15] Denial of justice is evidenced by the fact that the criminal justice system, rather than "addressing the problems they [Aboriginal people] face in their nations, their communities, and their personal lives", was actually aggravating those problems." [16] Ironically, the problems being aggravated were, and are, largely the result of federal government legislative and policy initiatives designed to 'civilize' and assimilate the Onkwehonwe.[17]

2. The insidious effect of colonialism is responsible, in part, for the over-involvement and over-representation of the Onkwehonwe and their descendants in Canada's criminal justice system and in penal institutions. La Prairie, for example, in considering "why aboriginal people in Canada are so disproportionately involved in and vulnerable to the policies and practices of the criminal justice system" had occasion to consider the impact of colonization, particularly in relation to the creation of contemporary Aboriginal communities.[18] La Prairie writes, for example, that "[c]ontemporary aboriginal community structures are the products of historical processes, wherein colonization and the creation of the reserve system came about as a result of cultural conflict and conflict over land ownership and possession."[19] According to La Prairie, a "critical outcome" of such contemporary structures is marginalized "geographic, social and economic structures from which it is very difficult to escape."[20] Factors related to these contemporary communities that combine to create vulnerable conditions for the Onkwehonwe and their descendants include "geographic isolation, small size, poor land, lack of education, employment and other resources, differential access to community options and opportunities, and alienation from mainstream society."[21]

3. The over-representation of the Onkwehonwe in provincial and federal institutions is attributable in large part to systemic discrimination in the sentencing process[22] - systemic discrimination that is a manifestation of the insidious effects of colonialism.

4. Quigley, for example, writes that given "the unemployed, transients and the poorly educated are all better candidates for imprisonment[,]" where a society's social, political and economic aspects disproportionately places the Onkwehonwe and their descendants amongst that group, that society "literally sentences more of them to jail. This is systemic discrimination."[23]

5. Both the need for, and the right of, the Onkwehonwe to establish separate justice systems and, in particular, separate criminal justice systems reflective and respective of their cultural distinctiveness, has been identified in numerous reports.[24] While the benefits of separate justice systems for the Onkwehonwe are propounded, however, there is a paucity of information available on the format or function of a separate contemporary criminal justice process for the Onkwehonwe[25] and discussion to date concerning the existence of such a contemporary process has, for the most part, been 'more theoretical than real'.[26] This is not tantamount to saying that no progress has been made. Rather, it is to say that efforts to date have focused on making the existing non-Onkwehonwe system more 'inclusive' of the Onkwehonwe and their descendants.[27] Examples of such initiatives include police recruitment initiatives of the Onkwehonwe, court-worker programs for First Peoples and specific training for First Peoples to become Justices of the Peace.[28]

6. The current methodology of government appears to be to favour the indigenization of the non-Onkwehonwe justice system. While the "fragmentary programs" that are a product of such a methodology are designed to make the Canadian system "more responsive and appropriate to Native cultural values and Native needs", are not a substitute for a separate justice process.[29] While separate justice systems for the Onkwehonwe and their descendants are not a panacea, the (re)creation of justice systems by and for the Onkwehonwe and their descendants that are reflective and respective of their lived realities is integral to self-government and to the ultimate survival of the Onkwehonwe and their descendants.

7. In December 2000, however, the Kahnawake Justice Commission (re)-introduced 'Skenn:en A'onsonton', a contemporary restorative justice process based on traditional Rotinohshonni ('people of the Longhouse) principles of conflict resolution to the Kahnawake Community as an alternative process to the Canadian criminal justice system. In this paper I critically assess this new initiative with a view to speculating on the likelihood that it will re-root itself in the Kahnawake community.

8. Part I of this paper offers an overview of the basis for political and social order within the Community of Kahnawake pre- and post-contact (Part I, subsections i and ii respectively) and outlines the Skenn:en A'onsonton initiative and where this initiative fits/may fit in contemporary Kahnawake (Part I, subsection iii). A consideration of the strengths of this contemporary initiative as well as the challenges to its success gleaned from Part I forms the basis of a critical evaluation of the initiative's prospects for success in Part II. I conclude Part II by noting that while there are significant challenges to the program being able to successfully re-rooting itself in Kahnawake, these challenges also provide opportunities for the community to 'rebuild its foundations'[30] and, in so doing, increase the likelihood that this contemporary process will find the fertile ground it requires in which to survive. The requisite thinking, however, that needs to happen to enable this rebuilding to take place starts, and rests, with the Kahnawa'kehró:non (people who live by the rapids also known as Kahnawake 'Mohawks') and the Community of Kahnawake (Kanien'keha ('Mohawk') Nation).[31]

   Part I Historic Overview - Governance and Conflict Resolution

9. I commence Part I of this paper with a brief overview of the community and its placement within the Kanien'keha Nation and the Rotinohshonni Confederacy. I then provide a detailed historic overview of governance and conflict resolution within the Confederacy from the perspective of the community, Nation and Confederacy pre- and post-contact. Given the traditional importance of the Clan system as the infrastructure for governance and conflict resolution within the Confederacy, an outline of the Clan system is provided in the pre-contact section prior to embarking on an overview of governance. Where possible, I have made specific reference to Kahnawake by way of illustration. The post-contact section is followed by an outline of the Skenn:en A'onsonton initiative. The discussion in Part I provides the requisite background information necessary to meaningfully evaluate the strengths of, and challenges posed by, the Skenn:en A'onsonton process in Part II with a view to speculating on likelihood that this initiative will successfully re-root itself in Kahnawake.

   Overview of Kahnawake

10. The Community of Kahnawake is located approximately 15 kilometres south of downtown Montréal on the south shore of the St. Lawrence River and consists of approximately 12,000 acres of land known as the "Kahnawake Indian Reserve" in Kahnawake and the "Doncaster Indian Reserve" situated near Ste-Agathe-des-Monts via Québec.[32] The population of Kahnawake is approximately 8,585 people (4,069 men and 4,516 women). Of the 8,585 people living at Kahnawake, 6,957 live within Mohawk territory and 1,628 live outside the territory.[33] Kahnawake is one of eight communities/settlements that comprise the Kanien'keha ('Mohawk') Nation.[34] The Kanien'keha Nation, in turn, is one of the original Five Nations that comprise the Rotinohshonni ('Iroquois') Confederacy.[35] (Please see Figure 'A' for an overview of the Confederacy and Figure 'B' for an overview of the Communities Comprising the Kanien'keha ('Mohawk') Nation.)

    Figure A

    Figure B

    Pre-Contact

11. The Rotinohshonni (or Haudenosaunee) Confederacy, often referred to as the 'oldest living democracy in the world', dates to August 31, 1142 when the Seneca Nation agreed to join the other four Nations in a political union for peace.[36] The formation of the Confederacy was a pivotal point for the Rotinohshonni since up to that point extensive blood feuds between warring families, communities and Nations were common and the 'eye-for-an-eye' retaliatory approach to violations or perceived violations of a person, family or community had served to splinter communities.[37] The "intertwined" nature of Rotinohshonni families frequently saw retaliation increase to the level of "[b]lood feuds of many years' duration".[38]

12. The Rotinohshonni credit the Peacemaker (Skennenrahawi), who was sent by the Creator, with bringing peace to and amongst the Nations. The Peacekeeper's mission was to persuade the Rotinohshonni ('People of the Longhouse') to abandon their reliance on war as a method of dispute resolution, "adopt his teachings of reconciliation, reason, compromise, and consensus as disciplines leading to the development of [a] 'good mind,' a state of being from which peace would naturally follow"[39] (teachings stemming from his message of 'peace (Skennen), power (Kashastensera) and righteousness' (Kariwiio, the 'Good Message'))[40] and form a union - the Rotinohshonni Confederacy - for the sake of peace. The forming of the Confederacy is testimony to the Skennenrahawi's success.

13. Skennenrahawi's success is attributable to a number of factors, key among which was his awareness that in order for peace to be realized amongst the warring Nations an intricate infrastructure would need to be woven that intricately connected the Nations but also respected their individual autonomy. Skennenrahawi, for example, is described as having envisioned the Rotinohshonni as "one united Longhouse in which each nation had its own hearth."[41] With limited exceptions (i.e., war, land cession), each Nation (i.e., Kanien'keha ('Mohawk') Nation) had exclusive jurisdiction over its own territories.[42]

14. Just as each nation within the Confederacy was considered autonomous in its own right and dealt with its own internal affairs, the autonomy and independence of local settlements within the Nation (i.e., Kahnawake) was also respected. In turn, within each settlement, there was autonomy for the clan structure.[43] Indeed it was Skennenrahawi's realignment of the existing clan system that provided the infrastructure for peaceful governance and conflict resolution.

    Clan System

15. While Clans were already established amongst the Five Nations at the time of the Peacemaker's arrival, the clans appear to have been used predominantly to delineate family lines to avoid intermarriage.[44] The Peacemaker restructured the clan system (while retaining the rule against inter-marriage) placing within each of the settlements of their respective Nations thereby forming a more cohesive infrastructure amongst the Nations.[45]

16. The re-structured clan system formed the basis of social order in Rotinohshonni society pre-contact. Skennenrahawi's instructions concerning the structure of the clan system are detailed in the Kaienerekowa (Great Law of Peace), the 'Constitution' of the Rotinohshonni , that "defines the powers of each nation and guarantees certain freedoms for the people."[46]

17. There are nine clans amongst the Rotinohshonni however not all nine clans are represented within each of the Nations. Amongst the Kanien'keha (Mohawk) and Oneida Nations, for example, three of the nine clans (Bear (Rotiskerewake), Turtle (Rotiniahton) and Wolf (Ron'Thahonni))[47] are represented in the various settlements that comprise those respective nations. Amongst the Onondaga, Cayuga and Seneca Nations, all nine clans (the three clans previously mentioned plus the Snipe, Heron, Hawk, Beaver, Deer and Elk clans)[48] are represented in the various settlements comprising those Nations. (Please see Figure 'C' for an overview of the clans comprising the original Five Nations.) Since Rotinohshonni society is matrilineal and matriarchal family names and clans are passed through the women.[49] Since a child (boy or girl) belongs to the mother's clan, the men and women belong to the mother's clan. All people were considered equal within the clan system and each individual within the Confederacy belonged to or was protected by one of the nine clans.

18. The Clan system formed the infrastructure for governance and conflict resolution throughout the Confederacy. Each of the nine clans amongst the Five Nations comprising the Confederacy was represented by a specific number of 'Rotianer' (pronounced lo-di-ya-ne[50] roughly translated as 'chiefs') as determined by the Skennenrahawi (Peacemaker). The number of Rotianer per Nation was as follows: Kanien'keha ('Mohawk'), 9; Oneida, 9; Onondaga, 14; Cayuga, 10 and Seneca, 8.[51] All Rotianer had equal authority, sometimes described as "all of the Chiefs" being "of the same height[.]"[52] (Please see Figure 'D' for an overview of the Rotianer/Nation composition of the Grand Council of the Confederacy.) The choice of Rotianer was important not only since the Rotianer would be a life representative of the people but also since it was through the voice of the Rotianer that community members had input into the resolution of disputes by the Territory.[53] The selection process for a Rotianer has been described as akin to a "four-tiered leadership nomination review process".[54] The first of the four-step process required the Clanmother, a woman selected by members of her clan, to select a Rotianer from amongst the men of that clan.[55]

19. In the case of the Kanien'keha ('Mohawk') Nation there are three clans with three Clanmothers per clan who select a total of nine Rotianer. The second of the four-step process required the clan to accept the Clanmother's choice of Rotianer. Endorsement of the Rotianer by the Nation's Council of Chiefs and the leaders of the Confederacy comprised steps three and four respectively.[56]

20. The choice of Clanmother and Rotianer, indeed decisions made at all levels amongst the Rotinohshonni (people of the Longhouse), were made on a consensus basis. Consensus decision-making provided an opportunity for issues to be discussed from all angles with the result that a diverse range of viewpoints could be shared.[57] Dione, for example, writes that

    "[t]he final decision will be fully satisfactory to some, satisfactory to some others and relatively satisfactory to the rest, but will reflect elements from every group. All must have a complete understanding of the final decision."[58]

    Figure C

    Illustration: Victoria Edwards

    Figure D

    Illustration: Victoria Edwards

    Governance

21. The clan system as redesigned by the Skennenrahawi (Peacekeeper) provided the infrastructure for consensus-based governance and peaceful decision-making as outlined in the Kaienerekowa. Skennenrahawi's instructions concerning governance envisioned Five Nations and not the Six Nations that comprise the Confederacy today. Each of the Five Nations was considered autonomous in its own right and dealt with its own internal affairs[59] in a consensus-based manner through clan meetings.[60] Respect for the autonomy of individual Nations and settlements recognized the need for Nations to retain their sovereignty even though members of a collective.[61] The Rotianer represented the interests of their respective clans[62] however the Clanmothers served as a form of watchdog on the behaviour of the Rotianer in all matters, public and private, in order to ensure that decisions were made in accordance with the Kaienerekowa (Great Law of Peace) and that the Rotianer was acting responsibly.[63]

22. While governance matters would be resolved at the community level where possible, the Peacemaker also provided that the Five Nations would each have their own Nation Council comprised of Rotianer from the clans in that settlement to address matters of importance to that Nation.[64] In the case of the Kanien'keha ('Mohawk') Nation, there was a Kanien'keha ('Mohawk') National Council comprised of nine Rotianer from the three clans. The emphasis on consensus-based decision-making resulted in the National Chiefs being depicted as 'peace' leaders in that rather than simply voting their position on a given issue they were required to arrive at a peaceful reconciliation/consensus on matters that affected the settlements within their respective Nations.[65] When consensus was reached on the matter at hand following clan meetings, the Clanmother would inform the Rotianer of the clan's decision. The Rotianer would then take the people's decision reached via consensus to the National Council of Chiefs.[66] While the consensus-based approach could prove time-intensive, it also endeavoured to ensure that no one clan could dominate governance of the community, Nation or Confederacy.

23. At the National Council level, as at all levels, decision-making was based on consensus. The decision-making process to be followed by the Kanien'keha ('Mohawk') National Council is detailed in the 11th Wampum of the Kaienerekowa (Great Law Of Peace). This process envisioned the Rotianer from the three clans comprising the Kanien'keha ('Mohawk') Nation deliberating over an open fire pit in the Longhouse.[67] Not all matters that reached the National Council, however, would necessarily be heard by the Council and prior to deliberation on any matter a decision was required as to whether the proposed topic for debate was of sufficient importance to warrant the attention of the Council.[68] Assuming the matter before the National Council was of sufficient importance, the matter was first presented to the Turtle Clan (Rotiniahton) for deliberation and a consensus-based decision following which the matter was then handed to the Wolf Clan (Ron'Thahonni). The Ron'Thahonni would have the benefit of having heard the Rotiniahton debate the matter before the Council. Following deliberation, if the Ron'Thahonni (Wolf Clan) was in agreement with the decision of the Rotiniahton (Turtle Clan), the matter was returned to the latter clan who then handed the issue to the Bear Clan (Rotiskerewake) for deliberation. The Rotiskerewake would also have had the benefit of hearing earlier debate on the matter by the other two clans.. Assuming the Rotianer of the Rotiskerewake (Bear Clan) were in agreement with the decision, the solution was sanctioned by the Rotiskerewake.[69] Given the consensus-based approach to decision-making, there was no provision for minority opinion and thus no majority rule.[70] The Clanmothers would observe proceedings to make sure that what took place at the National Council level was in accordance with the Kaienerekowa (Great Law).

24. Rotianer, in addition to serving as representatives of their respective clans in the community and at the National Council, also represented their respective Nations at the Grand Council of the Haudenosaunee Confederacy where they totaled 50 in number.[71] The Grand Council made decisions affecting the Confederacy at large or individual nations within the Confederacy where a specific Nation or Nations placed the Confederacy in peril by acting contrary to the welfare of the collective. The Grand Council was tasked with "maintain[ing] peace, protect[ing] the territory and provid[ing] for the long-term welfare of the people."[72] While the Confederacy was empowered to intervene, however, its powers of intervention were qualified by the need to avoid violence.[73]

25. Deliberation at the Grand Council level was similar to that at the National Council level.[74] The Onondaga Rotianer, seated at the east end of the Longhouse, served as 'Firekeepers' and determined whether a subject was suitable for debate by the Grand Council.[75] Rotianer from the Kanien'keha ('Mohawk') and Seneca Nations (also referred to as the 'elder brothers') sat on the north side while Rotianer from the Oneida and Cayuga Nations (the 'younger brothers') sat on the south side. The west side of the Longhouse accommodated members of the public wishing to observe the proceedings. The Clanmothers would observe proceedings to make sure that what took place at the Grand Council was in accordance with the Kaienerekowa (Great Law). Once a matter was approved for debate, the elder brothers debated the matter until consensus was reached, following which the matter was passed over the fire to the younger brothers for debate. The younger brothers's would benefit from having observed the debate amongst the elder brothers[76] and if the younger brothers agreed with the decision of their elder brothers, the matter would be returned to the elder brothers who would then formally announce the consensus-based decision of the four Nations to the Firekeepers.[77] The Firekeepers then deliberated on the matter and, as a general rule, and assuming the decision handed to the Firekeepers did not conflict with the Kaienerekowa,[78] would reaffirm the decision and then announce the law to the people, the decision then becoming a law of the Grand Council.[79]

    Conflict Resolution

26. While efforts were made to avoid conflict, conflict among the Rotinohshonni (whether of the 'civil' or 'criminal' type) did arise - albeit infrequently.[80] The reconfigured clan system, besides serving as the infrastructure for peaceful decision-making at the governance level also provided the infrastructure for conflict resolution. Jurisdiction for addressing all forms of wrongdoing, whether committed by Confederacy members or other the Onkwehonwe within the jurisdiction or protection of the Confederacy, rested with the Confederacy.[81] The actual body responsible for overseeing the resolution of the conflict depended upon where the wrongdoer and victim fit within the clan system. The nature of the wrongdoing complained of also factored into the determination of who would oversee the resolution of the conflict.

27. Amongst the Kanien'keha ('Mohawk') Nation, and presumably amongst other Nations within the Confederacy, the clan itself was the sole arbitrator of disputes involving members of the same clan; thus, by definition, other clans were prohibited from intervening in such disputes.[82] Public reputation was of importance to a clan and activity that might discredit the clan was not sanctioned.[83] Since the clan assumed responsibility for correcting anti-social behaviour, the reoccurrence of wrongdoing was problematic and resulted in the clan's loss of jurisdiction over the wrongdoer.[84] Where conflict occurred between members of different clans or Nations the approach followed to resolve the dispute was different. Deom writes, for example, that

    "[a]ll clans took an interest in the matter, sheltering the accused and his family from the vengeance of the victim's family, and in settling the matter expeditiously with the victim's family to heal the breach of social order. The whole community contributed to the injured person's family as a token replacement for what had been lost."[85]

    (Please refer to Table 1 for an overview of the dispute resolution process involving members of the Kanien'keha Nation.)

28. Depending upon the severity of the dispute, however, a matter might be turned over to the to the National Council or the Grand Council.[86] According to George-Kanentiio, amongst the Rotinohshonni (people of the Longhouse), specific types of wrongdoing were within the purview of a specific body. In the sphere of domestic relations, for example, the responsibility for arbitrating family disputes rested with the women "with the eldest female in a given family or clan having the power to adjudicate violations of the ancient laws."[87] Where the wrongdoing involved death, the victim's family and clan leaders determined the manner of death of their clan member. Where the clan leaders were of the opinion that a violent death had occurred, the decision with respect to punishment of the wrongdoer was within the purview of the offended family.[88]

    Table 1 [89]

    Dispute Resolution Process – Kanien’keha Nation *

    Disputants	Specifics	Resolved By
    individuals	intra-clan (same clan), same settlement/territory, same Nation	Clan
    individuals	inter-clan (different clans), same settlement/territory, same Nation	Community council
    	inter-clan (different clans), different settlements/territories, same Nation	National Council
    Nations	other Nations within Confederacy	Grand Council (Confederacy)
    	other Nations outside Confederacy	Grand Council (Confederacy)

    * subject to the nature of the conflict

29. Since wrongdoing would upset the peace and harmony within the community and behaviour that jeopardized the peace and harmony of the community needed to be addressed "quickly and firmly so as to discourage any further abuse to our society[,]"[90] all conflict was approached with a view to restoring harmony to the clans, family or community in a timely fashion regardless of the nature of the dispute, the disputants or the body responsible for the resolution of the conflict.

30. Regardless of the disputants or the nature of the conflict, however, the conflict resolution process was based on four principles that comprise(d) the Rotinohshonni concept of 'justice': reason, persuasion, satisfaction and compensation.[91] These four principles, as noted in Part I(i), stemmed from the Peacemaker's message of Skennen, Kashastensera and Kariwiio (peace, power and righteousness). The concept of peace, power and righteousness is also sometimes referred to as 'righteousness, health and power'.[92] The concept of 'peace' or 'health' is based on the understanding of what comprises a strong individual: "soundness of mind, body and spirit."[93] A strong individual will have a strong mind and a strong mind "uses its rational power to promote well-being between peoples [and] between nations."[94]

31. The concept of power is tied very closely to the Great Laws of Peace. The understanding with respect to this principle is that "[p]ower comes from the united actions of the people operating under one law, with one mind, one heart, and one body."[95] Under this concept of power the exercise of the minimal amount of power by people and nations necessary "to maintain the peace and well-being of the members of the Confederacy".[96]

32. The principal of righteousness is closely related to the concept of fairness, justice and rational thought. The need for everyone - - "the people, clans, Chiefs, Clan Mothers and the entire nation" to treat each other fairly was considered essential to the maintenance of stable communities since this would result in the maintenance of political and social justice and reduce the likelihood that violence would interfere with community stability.[97]

33. Integral to the concept of fairness was that each individual requires a strong notion of justice, enjoy the equal protection of the Great Law of Peace and treat people equally.[98]

34. Finally, the concept of righteousness contained the notion of rational thought. The use of rational thought is integral to the understanding that individuals "must be willing to use the power of reasonsable thinking to overcome problems and arrive at a mutually beneficial resolution" and "to shape their own personal conduct so as not to foster resentment or hatred[.]"[99]

35. The principles of power/health, power and righteousness were thought to result in peace amongst the Nations of the Haudenosaunee Confederacy as well as unite individuals. The four principles that comprise(d) the Rotinohshonni concept of 'justice' - reason, persuasion, satisfaction and compensation - stem from one or a combination of the three overarching principles. (See Figure 'E')

    Figure E

    Principles Comprising the Great Law of Peace and 'Justice'

    Illustration: Victoria Edwards

36. At the heart of the principle of reason was the belief that to resolve any matter through peaceful negotiation both parties to the conflict had to be capable of thinking rationally and of wanting to return to a peaceful state.[100] Integral to this principal was the understanding that "human beings should not abuse one another."[101] The principle of reason is an excellent illustration of the understanding that peace/health results when a an individual with a sound mind, body and spirit uses its reasoning capacity to promote well-being with others. The notion of not abusing one another reflects the strong sense of justice imbued in the overarching principle of righteousness.

37. The principle of persuasion provided that in order to reach a peaceful resolution the parties to the conflict had to be thinking clearly. Since emotions such as fear, hatred and revenge would clearly cloud this path the disputants had to be willing to set aside these emotions to move toward the resolution of the conflict.[102] The principle of persuasion illustrates the influence of the overarching principle of power/health in relation to a strong individual using his or her rational thought to promote well-being. The willingness to set aside emotions is illustrative of the influence of the overarching principle of justice and the importance placed on the use of rational thought with a view to guiding one's own conduct in a way that would not generate resentment or hatred. Since persuasion results in the unison of minds on a given issue, the concept of power that results from the united actions of people is also implicit in the principle of persuasion.

38. The principle of satisfaction described the community's response to knowing that "some measure of return to normality could be expected" - a knowledge attributable to the "rigid rules of protocol in place for the satisfaction of the injured parties."[103] The community's response to the return of normalcy reflects the broader concept of peace/health in that rational thought is being used to promote well-being - between individuals and nations. The concept of satisfaction also is informed by the concept of righteousness to the extent that rational thought has been employed to resolve a conflict and reach a solution satisfactory to the parties. The return to normalcy would also seek to restore a stable community, minimizing violence and emphasizing notions of political and social justice. The anticipated return to a sense of normalcy also suggests an implicit reference to the overarching principle of power. As noted earlier, power is the result of a people's united actions under one law, with one mind, heart and body. Anticipation of a return to normalcy suggests a community moving in one direction, and moving towards operating with one mind.

39. The principle of compensation envisioned the costs (not necessarily monetary) of redressing the harm caused. This principle is informed by the three overarching principles. A healthy individual would use their rational power towards the restoration of well-being and the concept of compensation is readily seen to work towards the restoration of well-being. The principle of compensation also reflects the exercise of rational thought to resolve problems and arrive at a satisfactory solution - concepts integral to the overarching principle of righteousness. In describing the principle of compensation in relation to the Kanien'keha Nation, Deom refers to the "financial and psychological burden on the community" resulting from the community's extensive involvement in addressing the wrongdoing.[104] Given the ripple effect of a wrongdoer's actions, it would be difficult for a wrongdoer to avoid seeing the impact of their wrongdoing and this ripple effect was thought to deter future behaviour.[105] The ripple effect of a wrongdoer's actions is a demonstration of the use of power that may serve to maintain community peace and well-being.

40. The application of these four principles within the clan infrastructure provided for the peaceful resolution of conflict. Where possible the resolution of disputes reflected as much input as possible from the wrongdoer and the victim however the wrongdoer was responsible for using their capacity to reason to repair the harm caused by the wrongdoing. The resolution of the matter hinged upon the exchange of "[d]ue compensation and condolence, and a promise of agreement".[106] Where the wrongdoer's proposal was accepted by the victim these three items "would have been exchanged at this time and the matter concluded."[107]

41. Where wrongdoing occurred within the Kanien'keha Nation, a wronged party would approach their clan leader who could be the Clanmother, Rotianer or a respected elder and describe the wrongdoing and the clan leader was required to listen to the complainant.[108] The clan leader then investigated the facts provided to him or her and determined the validity of the complaint and the seriousness of the conflict.[109] Following this investigation, the wrongdoer (in the case of an intra-clan conflict) or the wrongdoer's Clanleader (in the case of inter-clan conflict) was contacted and the wrongdoer was interviewed.[110] A meeting would be convened between the parties and their clan members. In the case of inter-clan conflict, members of both clans would attend.[111]

42. In the case of an intra-clan conflict the matter would usually be resolved at this level. Where the victim was not satisfied with the wrongdoer's proposed solution, however, the dispute could then go to the Community or National Council level.[112] A hearing at a higher level, however, was more formal (consisting of a forum moderated by the War Chief[113] and more time-intensive given the consensus-based decision-making approach involving a larger number of bodies than at the clan level. In view of the importance attached to the timely resolution of conflict and the "somb[r]e procedure and careful deliberation of issues and resolutions" required at the Community and National Council, where possible, "smaller disputes" would be addressed either within or between clans.[114]

43. Wrongdoing to be addressed before a Community or National Council within the Kanien'keha Nation commenced in a similar fashion to that outlined above concerning inter-clan conflict and an effort was made to resolve the conflict between the clans.[115] Where this effort was unsuccessful, however, the matter then went to the National Council and the process started anew. At the National Council level, another preliminary investigation was conducted, the testimony of any witnesses was entertained, the wrongdoer's clan leaders were contacted and a meeting was arranged between the leaders of the two clans to ascertain whether a resolution to the conflict could be reached.[116]

44. In the event there was still no resolution to the conflict, a hearing was held before the National Council where both the wrongdoer and the victim were provided with an opportunity to present their respective versions of the wrongdoing complained of along with any witnesses to the Chiefs in Council. After the presentations were concluded, the Rotianer deliberated within their clans as per the procedure set out above concerning governance at the National Council level on the following three matters and in the following order: the facts related to the innocence or guilt of the wrongdoer, the seriousness of the wrongdoing complained of and the degree of culpability of the wrongdoer.[117]

45. Where the facts were determined to be inconclusive deliberations would necessarily need to be discontinued pending receipt of further evidence.[118] Providing consensus was reached on all points, a resolution, based on consensus, would then be "brought forward and agreed upon" by the National Council of Chiefs.[119] The victim and wrongdoer then appeared before the Council to learn of the decision and were requested to provide the Council with feedback related to the fairness of the resolution.[120] The ultimate penalty would be agreed to by the accused and the Clan Chiefs.[121]

46. While the four traditional principles discussed above applied in all cases of wrongdoing, the principles of satisfaction and compensation were of particular significance to the successful resolution of conflict arising from criminal-type wrongdoing within the Kanien'keha Nation.[122] Amongst the Rotinohshonni a number of options related to compensation were available in the case of a violent death (or other serious offence). Compensation in the case of a violent death or other serious offence would often be 'permanent' in nature and entail compensating the victim's family in a way that was meaningful for the family.[123] Where the deceased person was the principal source of support for the family, for example, the wrongdoer could take on this role.[124]

47. Adoption of the wrongdoer by the victim's clan was a further option in the case of a violent death or serious offence and an offender could "be bound over to the clan to serve the needs of that clan for as long as they deemed proper."[125] It was then up to the clan to decide whether or not to adopt the offender (or, more accurately, whether or not to replace the deceased victim with the wrongdoer).[126] This option resulted in the offender losing his or her identity (i.e. name, clan affiliation, national and work status).[127] Banishment of the offender following a violent death was another option and a wrongdoer would be physically scarred prior to banishment from the community to ensure others knew to avoid the offender.[128]

    Post-Contact

48. According to Taiaiake Alfred, (Kanien'keha Nation Territory)

    "[a]ttempts to understand the community at any time during its history, especially in the contemporary era, must begin with a realization that the principles established in Mohawk society before contact with Europeans retain much of their saliency and power."[129]

49. Given that contemporary Kahnawake, is "a unique synthesis of tradition and modernity[,]"[130] the foregoing discussion concerning governance and conflict resolution processes pre-contact will provide a solid basis from which to consider the nature of these processes post-contact.

    Governance

50. In Kahnawake today there are at least two streams of governance. One stream is the traditional Rotinohshonni-style governance process outlined above (Part I(i)). Writing in 1995, Alfred described the existence of three such institutions "modelled on the traditional Iroquois model".[131] The existence of three such structures is owing in large part to disagreement concerning the interpretation of the Kaienerekowa (Great Law of Peace) and the Skennenrahawi's (Peacemaker's) instructions concerning the Kaienerekowa.[132]

51. The second stream of governance with Kahnawake territory is the Mohawk Council of Kahnawake.[133] The Mohawk Council of Kahnawake was created in 1894 and is the 'band council'-style of governance that traces its roots to the Indian Act.[134] This system of governance was imposed upon the Onkwehonwe (original beings) by the federal government with the goal of 'civilizing' and later assimilating the Onkwehonwe.[135] The Mohawk Council of Kahnawake consists of a grand chief and eleven chiefs elected every two years.[136]

52. The imposed model of governance differs from the traditional governance process in fundamental ways. Critical distinctions between the two models include (i) the band council system of governance is based on an elected format as opposed to the life nominations of Rotianer selected by Clanmothers from amongst their clan members via consensus; (ii) a distinction in level between the Grand Chief and the other chiefs under the band council system while the Rotianer were all at the same level; (iii) decision-making based on majority rule under the band council model versus consensus-based decision-making under the clan system infrastructure and (iv) the inverted structure of governance presented by the band council-style government when compared with the traditional governance process.[137] One Kanien'keha Trail Longhouse person described the difference in governance structure as follows:

    "[t]he structure of government that we operate is completely opposite to that of Canada in that we view it as an upside-down triangle. Our people are first and those that are chosen to represent them are at the bottom and become the workers for the people. It is not a top-down thing. It is in this sense that it comes from the people and we are the spokespeople."[138]

53. The band council system of governance imposed upon first peoples has been rejected by some Kahnawa'kehró:non (people of the flint or Kahnawake 'Mohawks') as it is viewed as "an administrative organ of the Canadian government and a creature of the Indian Act."[139] The fact that the band council-style government structure is the only structure recognized by the federal government in its dealings with First Peoples had the intended effect of community members turning to the band council system for their daily needs resulting in the "gradual and progressive disempowerment of [First Peoples'] government"[140] and the ripple effect of lessening the utility of the clan system infrastructure. Despite the existence of different Longhouses, and the fact that the Mohawk Council of Kahnawake "is not accepted as the legitimate governing institution by a significant number of Mohawks", the Mohawk Council of Kahnawake "claims the collective will of the people of Kahnawake as its source of authority and legitimacy."[141] The Council's ability to do so is attributed to its rejecting, "on principle ... the legal status of the Indian Act as a sponsoring institution."[142] As a result of this stance, "the majority of Kahnawake Mohawks consider the mck to be the legitimate governing authority in the community."[143]

    Conflict Resolution

54. As with the two streams of governance in operation in post-contact Kahnawake, there are two streams which purport to address wrongdoing. The traditional Rotinohshonni Longhouse system based on the four principles discussed in Part I(ii) has existed from "time immemorial".[144] Despite the existence of the traditional Rotinohshonni process for conflict resolution in contemporary Kahnawake, however, Canadian governments understand there to be only one 'legitimate' process for addressing 'criminal'-type wrongdoing, the Canadian criminal justice system, and has imposed this system on the Onkwehonwe across Canada.[145] The initial source of the imposition was statutory and common law offences however the statutory bases for such offences were repealed with the coming into force of the Criminal Code of Canada in 1892.[146]

55. The over-representation of Onkwehonwe in Canadian penal institutions demonstrates only too well the 'legitimacy' of the Canadian criminal justice system for the Onkwehonwe.[147] The fact that the criminal justice system has failed the Onkwehonwe and that justice has been denied to the Onkwehonwe by the justice system should, by now, be common knowledge.[148] A succinct reminder of the reasons for this failure and denial of justice is provided by Dale Dione, a Longhouse person and member of the Kahnawake Community:

    "[t]he people of Kahnawake have a long history of dissatisfaction with today's adversarial system of justice. Within that system, traditional values of restoring peace and harmony are neglected in favor of a system where punishment is the exclusive goal, primarily in the form of imprisonment. Victim satisfaction is not an issue in today's justice system, as the victim is generally unaware of what goes on behind the scenes. Within today's justice system, all offenses are considered acts against the state, where the victim's only role is to report the crime."[149]

56. The federal and provincial governments' passion for one 'legitimate' justice system for addressing criminal wrongdoing is, for the most part, not shared by Onkwehonwe. Within the Community of Kahnawake, for example, Longhouse followers embrace their traditional conflict resolution process and reject outright the Canadian judicial system. A visible example of such rejection occurred in Kahnawake in 1988 when three youths involved in wrongdoing in that community sought to have their wrongdoing addressed by the traditional system and specifically requested that occur without the benefit of interference from the Canadian criminal justice system.[150] The Attorney General of the province of Québec rejected the Longhouse process and the matter brought to the fore the autonomy of the Kanien'keha ('Mohawk') Nation, the application of the Criminal Code of Canada to the Kahnawake community and the survival and contemporary recognition of Kanien'keha law and values.[151]

57. Briefly stated, the Longhouse reached its decision on 25 February 1988 and released its decision on 26 February 1988. The day the decision was released, a Justice of the Peace in Longueuil, Québec issued arrest warrants at the request of the Kahnawake Peacekeepers (the community peacekeeping force in Kahnawake) for two of the three youths involved in wrongdoing on 17 February 1988: Sahkoianahawi (Jay) Diabo of the Snipe Clan and Onakarakete (Dean) Horne of the Bear Clan.[152]

58. On 18 March 1988 the Peacekeepers sought and obtained a further summons for a third youth, Karoniarahkwen (Ryan) Deer - Bear Clan, stemming from the 17 February 1988 wrongdoing.[153] Pursuant to the latter summons, the youth was required to appear in court on 19 April 1988 however this date was postponed until 29 September 1988.[154] Shortly before September 29th, the Attorney General of Québec, Mr. Gilles Rémillard, denied the request for a discretionary stay of proceedings, an option which counsel for the Longhouse had offered as a means by which both "the Mohawk Nation and the Canadian justice system" could "save face" while not necessarily establishing a precedent.[155] Dione attributes this denial to the province's fear that such agreement might be interpreted as Québec's recognition of the sovereignty of the Kanien'keha in judicial matters.[156] The youth chose not to appear in court on 29 September 1988 and a bench warrant was issued for his arrest.[157] At the end of the day, all three young men were subject to arrest as a result of the events of 17 February 1988.[158]

59. Despite the existence of a traditional conflict resolution process in contemporary Kahnawake, however, there are those Kahnawa'kehró:non (people who live by the rapids also known as Kahnawake 'Mohawks') who, while not necessarily satisfied with the Canadian justice system, are 'committed' to that system.[159] This commitment stems, in part, from federal government initiatives designed to attack the governance structures of the Onkwehonwe (i.e., the imposition of the band council system) resulting in diminished need for reliance upon the clan system as the infrastructure for governance and conflict resolution amongst the people and colonialist schemes that either directly or indirectly disrupted traditional methods by which conflict was addressed amongst the Onkwehonwe.[160]

60. Frustrated by a system that did not come remotely close to approximating 'justice' as understood by the Rotinoshonni and needing to assert some level of control over the administration of justice,[161] communities such as Kahnawake opted to use section 107 of the Indian Act to nominate community members as Justices of the Peace. In 1974, Justice Sharron was the first Rotinoshonni appointed to a section 107 court in Kahnawake.[162] A considerable portion of wrongdoer's appearing before this court are non-Onkwehonwe appearing in relation to highway traffic violations. The section 107 court in Kahnawake has been self-sustaining since its inception in 1974 owing, for the most part, to revenue generated from fines and court costs.[163]

61. Justices of the Peace appointed under section 107 of the Indian Act, in addition to having jurisdiction over offences under the Indian Act, also have jurisdiction vis.

    "any offence under 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."[164]

62. The jurisdiction of this court over criminal offences is wider than it appears since it is not tied to specific offences under the Criminal Code but Criminal Code offences related to those four areas. The court's jurisdiction over criminal-type offences pursuant to subsection 107(b) of the Indian Act in Kahnawake has been described as including

    "many criminal offences punishable on summary conviction. The court has also dealt with hybrid offences under the Criminal Code, hearing them as summary conviction cases. Owing to the wording of some provisions of section 107, the court also has the jurisdiction to hear break and enter cases - cases classed as indictable in the Criminal Code."[165]

63. While the court's jurisdiction extends to vagrancy-type offences, this 'offence' stems from an earlier time period and is not currently a Criminal Code offence.[166] The wording of the provision relating to jurisdiction over Criminal Code offences extends the geographical jurisdiction of the section 107 court to outside the territory where the court is located.[167] This extended jurisdiction means that it is possible for offences falling within the section 107 court's jurisdiction committed outside the territory of the court (i.e., common assault) to be "transferred from provincial courts or initiated in the section 107 court."[168]

64. While the importance of section 107 courts to communities such as Kahnawake should not be underestimated, these courts have come under fire for a number of reasons. First, the section 107 Indian Act court serves as "vestige of the ignominious past of federal colonization and domination of reserve life."[169] For this reason, it is somewhat ironic that the tool of the Indian agent was reclaimed by the as a means by which to assert some leverage over the administration of justice,[170] an irony that is heightened when one considers that the Onkwehonwe were, for the most part, excluded from the position of Justice of the Peace.[171] This irony has not been lost on the Onkwehonwe.[172] Further, while the section 107 court was initially seen as a means by which Onkwehonwe could reclaim some manner of control over the administration of justice, the section 107 court is still premised upon the "application of existing federal and provincial laws rather than incorporating the traditional and contemporary laws of Aboriginal communities"[173] and thus serves to contain the involvement of Onkwehonwe "to a subordinate position within the general system in a way that is not in keeping with the professed desires of the Aboriginal peoples of Canada."[174] The capacity for such courts to incorporate traditional content into the court process has been questioned given the "limited role and jurisdiction of such courts".[175] This court could also be seen as an example of a "fragmentary program"[176] associated with efforts to make the western criminal justice system "more responsive and appropriate to Native cultural values and Native needs."[177] As at 1993, it seemed clear that the Kahnawake community was not satisfied with the Kahnawake Court. Grand Chief Norton, for example, stated that: "[e]ven our system, people are not satisfied with our court in Kahnawake. We know that. There is no question about that. They want something more. They want something better and they deserve it."[178]

    Skenn:en A'onsonton

65. The discussion concerning pre- and post-contact governance and conflict resolution processes amongst the Rotinoshonni is illustrative of the resilience of the Rotinoshonni and their systems of social order in the face of "the crushing weight of imposed foreign institutions"[,][179] the adaptability of the people and their processes as well as the challenges accompanying such adaptation. A contemporary example of such adaptation is found in the Skenn:en A'onsonton initiative, a contemporary alternative dispute resolution process based on traditional Rotinohshonni conflict resolution processes.

66. In response to Kahnawake's "long history of dissatisfaction" with the Canadian justice system, community consultations in 1999 explored "alternative justice methods" of interest to the Kahnawake community. It was within the context of these discussions that the concept of restorative justice was raised as a plausible alternative justice process to the Canadian system[180] and hence the birth of the Skenn:en A'onsonton program. In December 2000, the Mohawk Council of Kahnawake's Justice Committee, a committee connected to the Mohawk Council of Kahnawake (the band council-style government system), in conjunction with other community members,[181] formally re-introduced this process to the community. The process is presented as belonging to and being under "the jurisdiction of the Mohawks of Kahnawake and not the jurisdiction of Quebec or Canada"[182] The process is aimed at all members of the Kahnawake community, including youth, that have been involved in a non-violent incident in Kahnawake either as a victim or wrongdoer.[183] While the initiative is targeted at the community in general, Ron Skye of the Kahnawake Justice Commission states that "[w]e are non discriminatory when it comes to using our system of justice. As long as the individuals agree to voluntarily participate we are accommodating."[184]

67. On the surface, the Skenn:en A'onsonton program resembles a typical restorative justice process in that it is victim-focused, requires the victim's and offender's consent to participate,[185] requires a wrongdoer to be accountable and take responsibility for their actions in recognition of the wrongdoing that was committed and requires that arrangements be made in order address the harm done. The difference between the Skenn:en A'onsonton process and other restorative justice initiatives, however, stems from the underlying approach to conflict or principles of conflict resolution upon which such processes are constructed. The Skenn:en A'onsonton process is unique in that it is based on the principles inherent in "the kind of justice our ancestors practiced and passed down to us through our ceremonies and Kainekerasera"[186] reason, persuasion, satisfaction and compensation.[187]

68. As a result of its traditional roots, the Skenn:en A'onsonton initiative has been referred to by the co-ordinator as being re-introduced to the Kahnawake Community.[188] Dione notes that while "we did not have a name for it, it was part of the way we did things, how we dealt with conflict and brought harmony back to our clans, family or community."[189]

69. The process itself works through the convening of a forum that includes the parties in conflict as well as their respective supporters. There are also two trained neutral facilitators that co-facilitate the process that are selected by the parties in conflict.[190] Additional counselors and community workers are available as required.[191] The overarching goal of the process is to restore harmony within the group as well as to ensure that the needs of all the participants are met.[192]

70. The parties' involvement in this program enables them to work towards restoring harmony through dialoguing with the affected parties, accepting responsibility for past behaviours and facilitating/enabling the healing process that needs to be addressed following the wrongdoing.[193] The solution is designed by the parties to the conflict. The role of the co-facilitators is to work with the parties in conflict to "make things right".[194] The concept of 'making things right' includes the offender learning and acknowledging the impact of what he or she has done to the participants as well as making appropriate restitution to the victim.[195] Restitution may take a number of forms one of which may be monetary compensation.[196]

71. The personal situation of an offender is taken into account in so far as possible (i.e., in terms of any treatment the offender requires as well as the formulation of a workable arrangement for restitution).[197] In an effort to "restore/rehabilitate" youth in the community, the Skenn:en A'onsonton program plans on incorporating traditional healing with other treatments (i.e., medicines, sweats, fasts) and to provide access to "Native Seers".[198] If the wrongdoing is 'made right and the parties 'become peaceful again', a wrongdoer avoids having a criminal record and the consequences attached to such a record (i.e., in terms of employment and reintegration into society) and the wrongdoer is returned to the right path and "reintegrated into society as productive person.[199]

72. In order to be eligible to participate in the program the requisite forms requesting access to the program must be obtained from the Alternative Justice Co-ordinator at Kahnawake.[200] The program may be accessed either directly (through the offender or victim contacting the organization) or indirectly by referral from a variety of places including "community organizations, community members, Kateri Memorial Hospital, Peacekeepers, Kahnawake School Committee/Education, Courts [and] Kahnawake Sakotiia'takenhas Community."[201] Reference to 'court' here should be read as including the section 107 Indian Act court for despite community dissatisfaction with the section 107 Indian Act court, Ron Skye has indicated that the Skenn:en A'onsonton program and the section 107 court are parts of a whole system "to be developed."[202] Additional referrals may come through the Canadian criminal justice system at either of two points: pre-charge (i.e., by the police or Peacekeepers/Peacemakers) or post-charge (by the Crown Attorney).[203]

73. While the process is under the community's jurisdiction,[204] once a charge is laid, the community faces the prospect of a loss of jurisdiction reminiscent of the 1988 Longhouse case referred to above and detailed at Appendix 'A'. For this reason, the full-time program co-ordinator has stated that "[t]he most important step of the process is that this system is utilized before any charges are laid by police officers."[205] The process is currently funded by the Mohawk Council of Kahnawake (band council). As at October 2001, other funding sources were being pursued.[206]

    Conclusion - Part I

74. Part I of this paper offered an overview of political and social order within the Community of Kahnawake pre- and post-contact. The importance of the clan system as the infrastructure for a peaceful decision-making process amongst the Rotinohshonni was discussed. An understanding of the traditional principles that inform the Rotinohshonni concept of 'justice' and an illustration of how these traditional principles operated within the clan system infrastructure to effectively resolve conflicts arising from criminal wrongdoing was provided. The social control processes in contemporary Kahnawake were also canvassed. A consideration of the impact of colonialism on the Onkwehonwe and, in particular, the Kahnawa'kehró:non illustrated the adaptability of the people and their processes as well as the challenges that come with such adaptation. The Skenn:en A'onsonton initiative was outlined as a contemporary example of such adaptation and its fit within contemporary Kahnawake explored. This background provides the context for a critical assessment of the likelihood that this initiative will successfully re-root itself in Kahnawake in Part II.

    Part II - Critical Assessment of Skenn:en A'onsonton

75. The foregoing discussion of the pre- and post-contact governance and conflict resolution processes (Part I(i) and (ii) respectively) and the outline of the Skenn:en A'onsonton initiative (Part I(iii)) provides a comprehensive base from which to consider the strengths of and challenges faced by this initiative in re-rooting itself in Kahnawake. As will be seen, while the initiative has a number of strengths, it also faces a number of challenges from the impact of federal government initiatives aimed civilizing and later assimilating the Onkwehonwe. The complexity of the Community of Kahnawake itself presents very specific challenges to the initiatives success. These challenges however also provide opportunities for the community to empower itself and "assume a higher level of responsibility over its own justice system".[207]

76. One factor that strongly supports the Skenn:en A'onsonton being able to successfully re-establish itself in Kahnawake is the fact that the process is 'home grown' and is controlled by the community. The presentation of this initiative to the community as a joint venture of the Kahnawake Justice Commission (a body that is a creation of the Mohawk Council of Kahnawake which itself is a creature of the band council system under the Indian Act) and other community members that are traditional Longhouse people was astute given that politics within Kahnawake sometimes pit the band council government against Longhouse people.[208]

77. While the joint representation may not satisfy Longhouse 'purists', there are clearly some traditional people who are willing to entertain this contemporary process rather than reject it outright.[209] The fact that the community was consulted on alternative dispute resolution processes is also important in terms of obtaining community support for an alternative process that takes its legitimacy "from the collective will" of the Kahnawake community.[210]

78. Community ownership and control of this initiative is also important to the initiative's prospects for success for another reason. While there has been an increased interest and movement toward incorporating alternative justice processes within the context of the Canadian criminal justice system this movement has occurred from within that system. There are people within the Canadian justice system who perceive this movement towards alternative-type mechanisms as a movement "toward embracing Aboriginal reality, values, customs and perspectives."[211]

79. While it may appear that 'traditional' resolution methods of First Peoples fit within the 'conciliatory model' of social control, there are key differences that inform issues integral to the resolution of conflict (i.e., what is meant by harmony, interests of the individual versus those of the group)[212] that yield very different understandings of conflict resolution. First Peoples in contact with restorative justice processes originating from that system face the possibility that their experience of exclusion from the dominant legal system owing to will be replicated by exclusion from this alternative process.[213] Thus the fact that the Skenn:en A'onsonton process is home grown and controlled by the community of Kahnawake is of particular importance to its long-term success.

80. Another factor in favor of the Skenn:en A'onsonton process being able re-root itself in the Kahnawake community is the fact that it is self-sustaining thereby insulating itself from political whims of government.[214] Further, where restitution is paid, all monies paid would go to the victim and not court administration.[215] This being said, however, the requirement that this initiative be self-sustaining places a tremendous burden on the community and the community has applied for funding for this program. The availability of such an initiative would seemingly translate into at least some reduction of caseload within the provincial court system resulting in some cost savings to the province of Québec which should be transferred to the Kahnawake Community.[216]

81. The reality of such a proposal, however, is that it would likely become stuck within the jurisdictional quagmire that often attaches to matters involving Onkwehonwe. The province of Québec would likely adopt the position that the matter of funding for an alternative justice process for Onkwehonwe falls within the federal government's constitutional responsibility for "Indians, and [l]ands reserved for the Indians" pursuant to ss. 91(24) of the Constitution Act, 1867.[217] The federal government would presumably take the position that funding for a restorative justice process as an alternative to the existing court system is within the province's constitutional responsibility for the administration of justice in the province pursuant to subsection 92(14) of that Act and as a result if any funding is to be provided it ought to be coming from provincial government coffers.[218] The Onwehonwe would likely take the position that:

    "[t]he 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 M[é]tis people. The Province has constitutional responsibility for the administration of justice. Both have a fiduciary obligation to Aboriginal people."[219]

82. The geographical limitation posed by the requirement that wrongdoing must have occurred within Kahnawake in order to access the Skenn:en A'onsonton process may not be problematic in terms of the initiatives prospects for successfully re-rooting itself in Kahnawake but it does pose a problem in view of the trend towards movement away from Territories to cities "in search of employment, educational opportunities and better services is continuing and appears to be increasing."[220]

83. As the Aboriginal Justice Inquiry of Manitoba notes, "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."[221] This challenge, however, might be addressed in a post-charge context through resort to the section 107 Indian Act court. Offences falling within the court's jurisdiction at subsection 107(b) could either be "transferred from the provincial courts or initiated in the section 107 court."[222] Once the offence was transferred to that court, perhaps the offence could then be referred to the Skenn:en A'onsonton program although the offence itself did not occur within Kahnawake.

84. The importance of timing in the resolution of disputes amongst the Rotinohshonni was documented in the context of both pre- and post-contact Rotinohshonni society. While I am not familiar with the response time in relation to wrongdoing addressed by the Skenn:en A'onsonton initiative, a consideration of the timely response in the 1988 Longhouse decision is illustrative of the efficiency of an alternative process. A consideration of pre-contact conflict resolution within the Kanien'keha Nation revealed that the convening of a National Council to hear a matter is reserved for a serious offence and is a time intensive process. In the 1988 Longhouse decision, the wrongdoing was considered to be sufficiently serious that the Rotianer from other Kanien'keha communities were asked to help in adjudicating the matter and to sit in council.[223] Despite the nature of the wrongdoing and the need for consensus-based decision-making, a mere eight days passed between the commission of the wrongdoing on February 17th, 1988 and the Longhouse decision of February 25th, 1988. This short time period reflects the philosophy that behaviours that jeopardize the peace and harmony of the community must be dealt with quickly and firmly in order to discourage further abuses to the society.[224] By May 24, 1988 all restitution had been made to the victims of the wrongdoing.[225]

85. The decision of the Longhouse as detailed in Appendix 'A' reflects the importance of moving beyond past behaviour, looking forward, restoring equity and setting things right for the future through the crafting of clear and comprehensible future accords[226] - the philosophy which informs the Skenn:en A'onsonton process.

86. Another strength of the Skenn:en A'onsonton process is that it allows room for alternative understandings of dispute and wrongdoing. Monture-Okanee writes:

    "[t]he philosophy around which the Canadian system of criminal law is constructed is that there will be disputes among people. In other words, there will be conflict quite naturally arising in social relationships. The role of the law is to create mechanisms whereby these 'natural' human conflicts can be resolved. The form of social control that Canada has accepted is an externalized one. Social control is seen as a power of the state which rests fully outside of the individual. One Aboriginal interpretation of this recognition is that it is one of the ways which Canadian citizens have given up their sovereignty. I understand this form of sovereignty which Canadians have deferred to the state to be about individual responsibility. Aboriginal Peoples have maintained a desire to be sovereign (or self-governing) both as individuals and collectives. This means that we have not deferred either our individual or collective right(s) to be sovereign. This is a complex notion of government relations which many non-Aboriginal people have difficulty comprehending. It also significantly impacts on the way dispute resolution is constructed."[227]

87. The space created by the program for such alternative understanding occurs prior to the involvement of the Canadian criminal justice system. Referrals to the Skenn:en A'onsonton program come from a variety of sources including many points before the point where formal charges have been laid against a wrongdoer. Where wrongdoing has occurred within the Kahnawake community, and assuming the police/Peacekeepers have not entered the picture, this initiative provides the parties with the opportunity to label the wrongdoing and explore firsthand other wrongdoing that may have arisen that would not have been caught in the Canadian criminal justice paradigm. The 1988 Longhouse case in Kahnawake provides a useful illustration. In that case, the three young people involved had initially denied their involvement in stealing newspapers and setting fire to a number of buildings but later admitted their wrongdoing. The Longhouse system considered the deception of the youths to be very serious and the youths were required to apologize to the Longhouse for lying and each youth received his first warning under the System of Three Warnings discussed above.[228]

88. The Canadian justice system would likely have glossed over initial denial of guilt and, in fact, that is what the Canadian system is based on - innocence until proven guilty. The Skenn:en A'onsonton initiative would allow the parties to personalize the process of addressing wrongdoing and in so doing provides the parties with a "new and different choice"[229] to resolve disputes based on traditional principles that the parties can initiative on their own without the involvement of the criminal justice system.

89. In addition to these strengths, however, the Skenn:en A'onsonton program does face a number of significant challenges. As discussed above, one of the program's strengths was that it allowed for the recognition of different concepts of what is meant by 'dispute'. This strength, however, hinged on two factors (i) no charges having been laid and (ii) the co-operation of the Kahnawake peacekeepers and other community members that may challenge the acceptance of this contemporary initiative thereby compromising the initiative's ability to re-root itself in Kahnawake. While program co-ordinator Dione, for example, is correct in stating that "[t]he one issue that is clear is that if no charges are laid and the dispute or conflict is resolved internally, we are acting sovereign - We are taking care of our own problems"[230] it could also be argued that by not pushing the boundaries, the contemporary program traps the community within the existing Canadian criminal justice system paradigm and the dominant structure. To the extent that this is the case, this initiative is vulnerable to Monture-Okanee's criticism concerning the lack of a true alternative in alternative justice programs. Monture-Okanee, for example, argues that diversion programs operating within the "sanctuary of criminal law in Canada" (i.e., those programs where in exchange for an admission of culpability one receives the assurance that they do not have to appear in court or will not receive a criminal record) are not true alternatives but rather "merely options existing within the system[,]" "the same choice that is merely dressed differently."[231]

90. This leaves First Peoples in the position where they are perceived as "being 'different from,' 'lesser to,' 'accommodated in' or 'outside of' what is legitimate in Canadian society."[232] Monture-Okanee's point is not that these sort of diversion projects have no merit but that "many of these pilot projects are the smallest of the small steps in the dreams of Aboriginal Peoples and the maximum jurisdiction that the current legal system will allow Aboriginal Peoples to administer thereby serving to reinforce the status quo.[233] On the other hand, however, as Monture-Okanee suggests, that "[a]ny project which successfully keeps an Aboriginal person from a sentence of incarceration is laudable."[234]

91. A second challenge to the capacity of the Skenn:en A'onsonton process providing for the recognition of different understandings of 'dispute' is obtaining the co-operation of the Kahnawake peacekeepers and other community members. The Peacekeepers, for example, are empowered to directly affect the situation in terms of whether or not to refer a matter to the initiative pre-charge while community members exert their influence in terms of their instructions to the Peacekeepers, their willingness to refer wrongdoing, wrongdoers and victims to the program and their willingness to participate in the program. While it might be thought that the Canadian criminal justice system's failure of the Onkwehonwe would result in any alternative being embraced by the community, this perception would be naïve. In the 1988 arson case adjudicated by the Longhouse, for example, it was the Kahnawake Peacekeepers who took the matter outside of Kahnawake and requested the Québec Justice of the Peace to issue arrest warrants. In addition, one of the victims of the wrongdoing did not initially accept the traditional process for resolution of the wrongdoing but later changed his mind following the timely reparation made by the youth.

92. There are a number of possible reasons why Peacekeepers and community members may not embrace an alternative process. Police and community members, for example, may lack confidence in a program based upon traditional Rotinohshonni teachings with which they have grown increasingly unfamiliar owing to federal government attempts to civilize and assimilate the Onkwehonwe generally. There may be a perception that an alternative approach that would result in the absence of a criminal record is indicative of a 'soft' system. These concerns, however, are particularly problematic for youth since, according to the Skenn:en A'onsonton website, "youth offenders or youth charged with a crime in Kahnawake, MUST have their cases heard in outside courts under the Quebec Juvenile Justice system."[235] (Emphasis in italics mine, emphasis in capital letters in original) Since youth that are First Peoples are disproportionately likely to experience conflict with the Canadian criminal justice system[236] and the population growth in First Peoples community generally is higher than the rest of Canada, possible concerns with lack of confidence in an alternative process is cause for concern.

93. Both these possibilities, however, present the proponents of the Skenn:en A'onsonton program with an opportunity for the re-introduction to the community of the traditional Rotinohshonni principles upon which the Skenn:en A'onsonton program is based.[237] The re-introduction of these principles, however, creates its own challenges.

94. One challenge faced by the need to re-introduce traditional principles to contemporary Kahnawake is that these principles stem from the Kianerékowa (the Great Law of Peace), the contemporary interpretation of which is subject to multiple understandings thereby raising the issue of the 'purity' of the purity of what is being re-introduced and whether tradition can ever really be re-learned in a pure form. Concern with the 'purity' of what is being re-introduced may be of particular importance to some Longhouse people who may be reluctant to embrace a contemporary model based loosely on tenets of the Kianerékowa. As the discussion concerning post-contact governance outlined, one of the bases for the three Longhouses in contemporary Kahnawake is disputes over the interpretation of the Kianerékowa. The re-introduction of what may be seen as a less than authentic version of the Kianerékowa by members of a band-council government could be problematic and work against the initiative's success.[238]

95. The purity of what is being re-introduced to the community also raises the issue of language and, in particular, the distortion of meaning when the Kianerékowa is translated into English. As Ron George writes,

    "[t]he language is then a critical factor in not just applying the law, but in first understanding the law. Until the language is restored to its rightful place in the lives of Aboriginal people, understanding the nature of law from an Aboriginal perspective is impossible."[239]

96. The decimation of First Nations languages is attributable in large part to colonialism. The separation of children from their families and communities resulted in a distancing from language, culture, teachings and spiritual beliefs.[240]

97. Concern with the recovery of 'pure' tradition, however, may be offset somewhat by the reality that

    "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."[241]

    Moreover, there is support for the position that the hybridity/synthesis "of traditional Kanien'keha ('Mohawk') values with existing administrative structures" is essential to the "transition to independence."[242]

98. The need to re-introduce traditional conflict resolution principles in order to address concerns with lack of confidence in a contemporary alternative dispute resolution process and to convince community members that reliance on such an alternative process based on traditional Rotinohshonni principles is not a 'soft' system raises a further concern with the saliency and power[243] of traditional principles in contemporary society. While not all community members in Kahnawake follow traditional governance and conflict resolution processes taught by the Skennenrahawi and outlined in the Kaienerekowa (Great Law of Peace) the traditional system of governance and conflict resolution does exist in contemporary Kahnawake. While the existence of three Longhouses obviously limits the potential capacity of one larger Longhouse, the fact that three such Longhouses exist owing to disputes over the interpretation of the Kaienerekowa (Great Law of Peace) demonstrates the saliency and power of traditional principles. The customs and traditions of the Kanien'kehaka people have, "from time immemorial, dictated the procedure for administering justice" to the Kanien'kehaka "especially with respect to compensation for victims and their families."[244]

99. The existence of the Longhouse system to adjudicate matters of importance such as the 1988 arson case provides a similar illustration of such saliency and power. Moreover, the Longhouse system, for some community members, serves the same function today (i.e., the basis of "social, cultural and political activity") that it performed traditionally.[245]

100. A key challenge to the Skenn:en A'onsonton program's success is the infrastructure to support the process. Traditionally, the clan system infrastructure was integral to the maintenance of political and social order amongst the Rotinohshonni. Under the clan system, an act committed by one member against another had a ripple effect and touched the complex network of families, clans and Nations.[246] While the clan system is still in existence, it has been compromised by government initiatives aimed at destroying traditional governance structures of Onkwehonwe.[247] The forced removal of children from families and communities as part of this 'purification' process had, and continues to have, an impact on the clan system as it served to upset the harmony and balance within families and communities thereby distorting the responsibilities of family and community for their children and disrupting the egalitarian relationship that existed amongst First Nations men and women.[248]

101. This challenge, however, provides the community of Kahnawake with an opportunity to heal some of this damage. In the community of Kahnawake, for example,

     "[p]arents are reclaiming authority for the rearing of their children; roles which have been eroded through the non-Aboriginal system of welfare, Children's Aid, the Quebec Juvenile Protection Act, some educational programs and the influence of mainstream media."[249]

     The process itself is a reminder that:

     "[w]e must provide our children with something positive to grasp on to. They need to know that every person has worth and has a responsibility while they are on this earth. In the traditional naming ceremony, for instance, a new child is introduced to the clans and family and the people are told that they must help this person in life. If they are doing wrong, try to correct them in a good way and when they are doing good, encourage them. It is everyone's responsibility to shape our community members into productive human beings."[250]

102. Thus while the disruption of the clan system infrastructure does pose a serious challenge to Skenn:en A'onsonton's successfully re-rooting itself in Kahnawake, this problem may be more intense in the short-term than further down the road as the community of Kahnawake works to "rebuild its foundations" in order to support an approach to conflict resolution that aims to create harmony and restore peace, rather than taking an adversarial approach." [251]

     Conclusion - Part II

103. As discussed, many of the challenges facing this contemporary initiative stem from the impact of federal government initiatives aimed to civilize and later assimilate First Peoples outlined in Part I and do present as obstacles to the initiative successfully re-rooting itself in Kahnawake. These challenges, however, also present as opportunities for the community to 'return to the woods' (in a symbolic sense) and 'find themselves again'[252] and in so doing to 'rebuild its foundations' drawing on its own strengths and traditions[253] in order to provide the infrastructure necessary to facilitate the Skenn:en A'onsonton process re-rooting itself in Kahnawake. Viewed from this perspective, the Skenn:en A'onsonton process is a tool of empowerment that provides the community with a choice and encourages the community to take a chance. Existing dissatisfaction with the Canadian criminal justice system suggests that the community has nothing to lose by giving the initiative a chance.[254]

     Overall Conclusion

104. A parallel can be drawn between the Peacekeeper's mission to convince five warring Nations to abandon their reliance on war as a method of dispute resolution and adopt his teachings of reconciliation, reason, compromise, and consensus as disciplines leading to the development of a 'good mind,' a state of being from which peace would naturally follow[,]"[255] appears to parallel the efforts of the Kahnawake Justice Commission and others to persuade the community of Kahnawake to abandon their battle against the Canadian criminal justice system to address conflict that has caused such extensive harm to Kahnawa'kehró:non (and First Peoples generally) and adopt the principles of reason, satisfaction, persuasion and compensation[256] as a way 'to become peaceful again'. The formation of the Rotinohshonni Confederacy is illustrative that the Peacemaker's mission was a success. The success of the Kahnawake Justice Commission et al. in their mission will be measured by whether the Skenn:en A'onsonton process successfully re-roots itself in Kahnawake. The requisite thinking that needs to happen to enable this rebuilding and re-rooting to take place starts, and rests, with the Kahnawa'kehró:non and the Community of Kahnawake.

Appendix A

On 17 February 1988 three young men (Karoniarahkwen (Ryan) Deer - Bear Clan, Sahkoianahawi (Jay) Diabo - Snipe Clan and Onakarakete (Dean) Horne - Bear Clan), following a night of excessive alcohol consumption, drove while intoxicated, stole newspapers from two convenience stores and set fire to two abandoned buildings (one of which burned to the ground). The three young men then proceeded to mislead the Kahnawake community about their involvement in the incidents.[257] They then admitted their involvement to the Longhouse.

The three young persons were members of the Longhouse and wanted their wrongdoings addressed by the Longhouse. The Kahnawake Longhouse wanted the events handled exclusively by the Longhouse and made it quite clear that it did not need, require or want the involvement of the Canadian justice system. A letter dated 22 February 1988, for example, sent to the Chief of the Mohawk Council of Kahnawake (Chief Joseph Norton), the Chief of the Peacekeepers (Ronald Skye) and the Mohawk Council of Kahnawake's Justice Co-ordinator (Peggy Mayo) from Ahserekowa, War Chief (Allen Tekawerente Delaronde) and the Secretary of the Mohawk Nation (Marina Delaronde), read in part:

"... the undersigned [the three youths and their respective parents] wish that no interference to the process be made by an Peacekeepers, Band Council Justice System or any non-Indian agencies so as the peace that is in the process of being established among the people involved in this issue will not be disturbed."[258]

The day following the events, 18 February 1988, Karoniarahkwen (Ryan) Deer - (Bear Clan) was arrested by the Kahnawake Peacekeepers but released later that same day.[259] The Mohawk Nation Council pronounced its decision on 25 February 1988. On 26 February 1988 the Mohawk Nation Council sent a letter detailing the results of the proceedings and the Longhouse sentence to Chief of the Mohawk Council of Kahnawake (Chief Joseph Norton), the Chief of the Peacekeepers (Ronald Skye) and the Mohawk Council of Kahnawake's Justice Co-ordinator (Peggy Mayo).[260] A mere eight days passed between the night the wrongdoings and the date of the Longhouse decision. This short time period being illustrative of the need to address behaviours jeopardizing the peace and harmony of the community in a quick and firm manner to discourage further abuses of, and to, the society.[261]

In response to the wrongdoing of theft, the three offenders were required to reimburse the store owners twice the value of the goods taken. The offenders apologized to the store owners and on 9 March 1988 repaid double the amount of items taken.[262] With respect to the second wrongdoing, the abusive consumption of alcohol, the offenders were required to participate in an alcohol evaluation program.[263] The offenders completed a twenty hour program in May and June 1988.[264]

With respect to the third wrongdoing, deception of peers by lying about their involvement in the incidents of 17 February 1988, the offenders were required to apologize individually to the People of the Longhouse for lying and also received a first warning under the practice of the Three Warnings.[265] The youths apologized on 26 February 1988.[266]

With respect to the fourth wrongdoing of driving while under the influence of alcohol, the three youth were forbidden to drive a car for a one year period from sundown to sunrise. This prohibition was to be in place until 25 February 1989.[267]

With respect to the fifth and final wrongdoing, the commission of acts of arson, the offenders were required to justly compensate the victims for their losses. This was done sometime on or before 24 May 1988.[268]

The offenders were also ordered to participate in the Kahnawake Community volunteer fire department for a one year period. This requirement was to be in place until 29 March 1989.[269] In order to satisfy the requirements related to these wrongdoings, the three young men were required to live and work within Kahnawake Territory for a one year period.[270]

The same day the decision was released, 26 February 1988, a Longueuil, Québec Justice of the Peace, pursuant to the request of Kahnawake Peacekeepers, issued arrest warrants for the remaining two young men (Sahkoianahawi (Jay) Diabo - Snipe Clan and Onakarakete (Dean) Horne - Bear Clan) in relation to the three charges arising from the incidents of 17 February 1988 (conspiracy, arson and theft).[271]

On 18 March 1988 the Peacekeepers sought and obtained a third summons relating to those same three offences for the third youth, Karoniarahkwen (Ryan) Deer - Bear Clan, the youth originally arrested and released on 18 February 1988. Pursuant to the latter summons, the youth was required to appear in court on 19 April 1988.[272] The 19 April 1988 appearance was postponed until 29 September 1988.[273] Shortly before the 29 September date, the Attorney General of Québec, Mr. Gilles Rémillard, denied counsel for the Longhouse's request for a discretionary stay of proceedings.[274] The youth chose not to appear in court on 29 September 1988 and a bench warrant was issued for his arrest.[275] All three young men are subject to arrest as a result of the events of 17 February 1988.[276]

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Royal Commission on Aboriginal Peoples, For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples (Ottawa: Libraxus, 1997).
Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice In Canada (Ottawa: Supply and Services, 1996).
Royal Commission on Aboriginal Peoples, Aboriginal Peoples and the Justice System, Report of the National Round Table on Aboriginal Justice Issues (Ottawa: Supply and Services, 1993).
Royal Commission on Aboriginal Peoples, Final Report, Volume 1: Looking Forward, Looking Back Available online at <http://www.indigenous.ca/Links_Partnerships.htm>
Rudin, J., "Aboriginal Self-Government and Justice" in J.H. Hylton, Aboriiginal Self-Government in Canadda: Current Trends and Issues (2d ed.) (Saskatoon: Purich Publishing, 1994.
Silverman, R.A. and Nielsen, M.O., eds., Aboriginal Peoples and Canadian Criminal Justice (Toronto: Butterworths, 1992).
Starnes, S., "Mohawks stress healing in Akwesasne conflict resolution program" (Summer 1991) 3(2) Interaction 1.
Taylor, T., ed., How You Play the Game: Papers from the First International Conference on Sports and Human Rights (September 1-3, 1999) (Australia: Human Rights Council of Australia, 2000) (ISBN 1 8636 566 2).
Tehanetornes, Wampum Belts 3 (1993).
Wallace, P.A.W., White Roots of Peace, Port Washington, New York: I.J. friedman, 1968, c. 1946.
Yarrow, D., The Great Law of Peace: New World Roots of American Democracy" (1987) at <http://www.kahonwes.com/iroquois/document1.html>

Agreements/Legislation

An Act Respecting Offences Against Public Morals and Public Convenience (R.S.C. 1886, c. 157).
An Act to Amend the Indian Act, 1880 (S.C. 1881, c. 17 (44 Vict.).
An Act to Further Amend the Indian Act, 1880 (S.C. 1882, c. 30 (45 Vict.).
An Act to Further Amend the Indian Act, 1880 (S.C. 1884, c. 27 (47 Vict.).
An Act to Further Amend The Indian Act, Chapter Forty-three of the Revised Statutes (S.C. 1890, c. 29, s. 9).
An Act to Further Amend the Indian Act (S.C. 1895, c. 35, s. 7).
Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, formerly the British North America Act, 1867.
Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
Criminal Code of Canada (R.S.C. 1985, c. C-46).
Draft Umbrella Agreement With Respect To Canada/Kahnawake Intergovernmental Relations Act" dated January 17, 2001.
Indian Act (S.C. 1876, c. 18).
Indian Act (R.S.C. 1886, c. 43).
Indian Act (S.C. 1951, c. 29).
Indian Act (R.S.C. 1985, c. C-5).
Kaienerekowa (Great Law of Peace).
Skennen, Kashastensera and Kariwiio (Peace, Power and Righteousness).
The Criminal Code, 1892 (S.C. 1892, c. 29) (55-56 Vict.).
Two Row Wampum.

Case Law

R. v. David [2000] O.J. No. 561 (Court File No. 2070-98) (February 21, 2000) (Sup. Ct).
R. v. Deer (No. 505-01-000983-888) (Ct. of Sessions of Peace, District of Longueuil, Québec).
R. v. Gladue [1999] 1 S.C.R. 688 at 727.
R. v. Williams [1998] 1 S.C.R. 1128.

Websites

Aboriginal Justice Inquiry of Manitoba:
<http://www.ajic.mb.ca/reports/final_toc.html>
Gonzaga University, Spokane, Washington
<http://law.gonzaga.edu/borders/Articles/010501_haslip/index.htm>
Indian and Northern Affairs Canada
<http://www.ainc-inac.gc.ca/qc/gui/kahnawake_e.html
MikeTBen
<http://hometown.aol.com/miketben2/miktben7.htm
Mohawk Council of Kahnawake:
http://www.kahnawake.com/ckr/1812.htm>)
http://www.kahnawake.com/council/chiefs/tgilbert.htm
http://www.kahnawake.com/council/chiefs/index.htm>
http://www.kahnawake.com/council/index.htm>
http://www.kahnawake.com/justice>
http://www.kahnawake.com/justice/index.shtml>
http://www.kahnawake.com/justice/news1.htm>
http://www.kahnawake.com/justice/news2.htm>
http://www/kahnawake.com/justice/rjustice.htm>
http://www.kahnawake.com/justice/who.htm>
Murdoch, Australia
http://www.murdoch.edu.au/elaw/issues/v7n1/haslip71.html>
http://www.murdoch.edu.au/elaw/issues/v8n2/haslip82.html>
Miscellaneous
http://www.ofifc.org/Page/NewsOld.asp>
Nativenet:
http://www.nativenet.uthscsa.edu/archive/n1/9202/0247.html>
Ratical
http://www.ratical.com/many_worlds/6Nations/DatingIC.html>
Royal Commission on Aboriginal Peoples:
http://www.indigenous.bc.ca/v1/Vol1Ch9s9tos9.14.asp>
Schoolnet:
http://www.schoolnet.ca/aboriginal/issues/justice-e.html>
http://www.schoolnet.ca/aboriginal/7gen/confed-e.html>
Six Nations:
http://sixnations.buffnet.net/Great_Law_of_Peace/>
http://sixnations.buffnet.net/Great_Law_of_Peace/?article=how_does_grand_council_work>)
http://sixnations.buffnet.net/Great_Law_of_Peace/?article=three_principals>
http://sixnations.buffnet.net/Great_Law_of_Peace/?article=who_are_chiefs>
Tuscaroras:
http://www.tuscaroras.com/graydeer/influenc/page1.htm>
http://www.tuscaroras.com/jtlc/JTLC/Purpose_of_the_JTLC.html>
Tyendinaga:
http://www.tyendinaga.net/amsp/youth99/clan/>

---

Notes

[1] J. Rudin, "Aboriginal Self-Government and Justice" in J.H. Hylton, Aboriginal Self-Government in Canada: Current Trends and Issues (2d ed.) (Saskatchewan: Purich Publishing, 1999) 205-227 at 213.

[2] The first article I read in which Canada was referred to as 'Turtle Island' was P. Monture-Okanee (now Monture-Angus), "I Know My Name: First Nations Woman Speaks in G. Finn, ed., Limited Edition: voices of women, visions of feminism (Halifax: Fernwood Publishing, 1993) at 330. Patricia Monture Angus is and identifies as a member of the Mohawk Nation, Grand River Territory.

[3] R.S.C. 1985, c. C-46.

[4] S. Haslip, "Conditional Sentencing and the Overrepresentation of Aboriginal Offenders in Canadian Penal Institutions" (2000)

[4] Across Borders Int'l L. J. 1 (Gonzaga University, Spokane, Washington) <http://law.gonzaga.edu/borders/Articles/010501_haslip/index.htm> , S. Haslip, "Aboriginal Sentencing Reform in Canada - Prospects for Success" (March 2000) 7(1) University of Murdoch Law Review, Perth, Australia <http://www.murdoch.edu.au/elaw/issues/v7n1/haslip71.html> and S. Haslip,"Who's Zooming Who? R. v. Gladue: Sentencing Reform and Aboriginal Peoples" (Summer 2000) 5(2) Justice as Healing 1.

[5] Ron Skye, Kahnawake Justice Commission, personal correspondence, November 7th, 2001. (Copy on file with writer.)

[6] See, for example, Kahnawake Justice Commission, 'Back Cover' (Sekéha 2000) Vol. 1(1) Planting the Seeds of Peace. A copy of this document is available from the Community of Kahnawake's website at <www.kahnawake.com/justice> See also Kahnawake Justice Committee, "Traditional Justice Coming Back to Kahnawake" (July 2000) News Release. Available online at <http://www.kahnawake.com/justice/news1.htm> The address for contact information is: Sken:nen A'onsonton - To Become Peaceful Again, P.O. Box 1239 Kahnawake (via Québec) J0L 1B0. My understanding is that for the Kanienkehaka ('people of the flint' or 'Mohawk' people), the division of Canada into provinces and territories, and for that matter the Canada-United States border, is a matter of constitutional and jurisdictional convenience for the federal government of Canada. Since the Kanien'keha Nation's relationship with Canada is based on Nation to Nation relations stemming from the Kahswentha or Two Row Wampum, these boundaries are not recognized. Thus the Kahnawake Community takes the position that it does not 'belong' to the province of Québec, rather, it resides in Kanien'keha (Nation) territory accessible via Québec. (See, for example, G.R. Alfred, Heeding the Voices of Our Ancestors: Kahnawake Mohawk Politics and the Rise of Native Nationalism (Don Mill, Ontario: Oxford University Press, 1995) at 99.) (Heeding the Voices of Our Ancestors) The Two Row Wampum Treaty is an agreement between the Kanienkehaka ('Mohawks') and the Dutch dating to 1645. In 1666, following the defeat of the Dutch by the British, the Mohawks extended this same Treaty, under the name 'Silver Covenant Chain', to the British. (See, for example, G.R. Alfred, "The Meaning of Self-Government in Kahnawake", paper presented as part of the Research Program of the Royal Commission on Aboriginal Peoples, July 1994 and reproduced in Royal Commission on Aboriginal Peoples, "Research Reports - Governance Project Area 9: Aboriginal Government Case Studies" in For Seven Generations: An Information Legacy of the Royal Commission on Aboriginal Peoples (Ottawa: Libraxus, 1997) at 7.) (Alfred, "Meaning of Self-Government") and (Royal Commission on Aboriginal Peoples, For Seven Generations) In essence, this treaty "embod[ies] the ideal of mutual respect for the cultural and political autonomy of each society." (G.R. Alfred, Heeding the Voices of Our Ancestors, supra note 6 at 185.)

As Alfred writes,
"[t]he metaphor for this relationship - two vessels, each possessing its own integrity, travel[l]ing the river of time together - was conveyed visually on a wampum belt of two parallel purple lines (representing power) on a background of white beads (representing peace). In this respectful (co-equal) friendship and alliance, any interference with the other partner's autonomy, freedom, or powers was expressly forbidden. So long as these principles were respected, the relationship would be peaceful, harmonious and just." (T. Alfred, Peace, Power, Righteousness: An Indigenous Manifesto (Don Mills, Ontario: Oxford University Press, 1999) at 52.) (Peace, Power, Righteousness) Taiaiake Alfred and G.R. Alfred are the same person, 'Taiaiake' is Alfred's Kanien'keha ('Mohawk') name. Wampum is "a long cylinder shaped bead made from quahog clamshell (the purple beads) and Atlantic Whelk (the white beads)" and is used by the Rotinohshonni for recording the laws, religious ceremonies and other official purposes. (Kanatiyosh, "The Influence of the Great Law of Peace on the United States Constitution: An Haudenosaunee (Iroquois) Perspective" <http://www.tuscaroras.com/graydeer/influenc/page1.htm> ("Influence of the Great Law") citing Tehanetorens, Wampum Belts 3 (1993).) Kanatiyosh is a member of the Kanien'keha ('Mohawk') Nation, community of Akwesasne. (Kanatiyosh, "Influence of the Great Law", ibid.)

[7] A diverse range of source material has been relied upon in writing this paper in view of the limited information available on the Skenn:en A'onsonton process and other issues touched on in this paper

[8] It is acknowledged that the concept of a separate restorative justice process raises issues with respect to legal pluralism however this topic, however, is beyond the scope of this paper. For a discussion of the issue of legal pluralism and alternative processes for First Peoples please see B.B. Keon-Cohen, "Native Justice in Australia, Canada and the U.S.A.: A Comparative Analysis" (1986) Canadian Legal Aid Bulletin 186 at 189-190, Osnaburgh/Windigo Tribal Council Justice Review Committee, Report of the Osnaburgh/Windigo Tribal Council Justice Review Committee (1990) at 38-39.

[9] Don Burnstick, a Cree comedian, used this terminology in reference to the role of comedy in the healing process amongst the Onkwehonwe. See D. Burnstick in D. Hayden Taylor, director and S. Basmajian, producer, Redskins, Tricksters and Puppy Stew (Montréal: National Film Board, 2000).

[10] P.A. Monture-Okanee, "Alternative Dispute Resolution: A Bridge to Aboriginal Experience?" in C. Morris and A. Pirie, eds., Qualifications For Dispute Resolution: Perspectives on the Debate (Victoria, British Columbia: UVic Institute for Dispute Resolution, 1994) 131-140 at 131. ("Alternative Dispute Resolution") There is a misperception that the Kanien'keha word for 'law' translates as 'the great law of peace' in English. Monture-Okanee, however, points out that "[t]his is not precisely true. The word actually literally translates to 'the way to live most nicely together'." (Ibid. at 140) Monture-Okanee cites Tom Porter, Kanien'keha Nation, Community of Akwesasne, with this translation. (Ibid. at n29)

[11] T. Alfred, Peace, Power, Righteousness, supra note 6 at 136. With respect to terminology, please see G.R. Alfred, Heeding the Voices of Our Ancestors, supra note 6 at 19; T. Alfred, Peace, Power, Righteousness, supra note 6 at xxv; E.J. Dickson-Gilmore, "Resurrecting the Peace: Traditionalist Approaches to Separate Justice in the Kahnawake Mohawk Nation" ("Resurrecting the Peace") in R.A. Silverman and M.O. Nielsen, eds., Aboriginal Peoples and Canadian Criminal Justice (Toronto: Butterworths, 1992) 259-277 at 259 and 273-274 (Aboriginal Peoples and Canadian Criminal Justice) and Chief Tiorahkwáthe Gilbert <http://www.kahnawake.com/council/chiefs/tgilbert.htm> The term 'Mohawk' stems from "an anglicized version of an archaic Algonkian word meaning 'cannibal monster'" (T. Alfred, Peace, Power, Righteousness, supra note 6 at xxv) or '[m]an-eaters'. (E.J. Dickson-Gilmore, Resurrecting the Peace, supra note 11 at 259.) Alfred notes that while the "notoriety of the term" may be relished by some Kanien'kehaka ('people of the flint'), the translation of that term remains "an obvious derogation" that was incorporated into the "contemporary culture" of the Kanien'kehaka following the 'uncritical adoption of the English language and its accompanying prejudices'. (T. Alfred, Peace, Power, Righteousness, supra note 6 at xxv.) The term 'Mohawk', however, is in common parlance and used by the Kahnawa'kehró:non ('people of the flint' or 'Mohawks') themselves. This terminology is used in reference to 'people of the Longhouse'. The 'Longhouse' refers to the traditional style of government of the Rotinohshonni . (G.R. Alfred, "Meaning of Self-Government", supra note 6 at 3.) 'Rotinohshonni' is the Kanien'keha ('Mohawk') word for 'people of the longhouse' or 'Haudenosaunee' Confederacy. The French term 'Iroquois' and the English term 'Six Nations' are also commonly used to describe the Rotinohshonni.(or Haudenosaunee Confederacy) (B.E. Johnson, "Dating the Iroquois Confederacy" 1(3 & 4) (Fall: October/November/December 1995) 62-63. Also available online at http://www.ratical.com/many_worlds/6Nations/DatingIC.html>) See also Kanatiyosh, "Influence of the Great Law", supra note 6.

[12] P.A. Monture Okanee (now Monture-Angus) writing in S. O'Connor, P. Monture and N. O'Connor, "Grandmothers, Mothers and Daughters" (Summer/Fall 1989) 10(2,3) Canadian Woman Studies 38-39 at 38.

[13] The spelling of the word 'Stony' is subject to debate. According to professor kawzi-Mgizi (Ronald C. George) (also known as 'Spike'), Ojibway member of the Anishinabek Nation, Kettle and Stony Point First Nation (University of Ottawa) 'Stony' is "officially" spelt without the 'e'. In Professor George's community, however, there is debate over whether or not this should be the case. Individuals aligned with the 'legal' band system of governance spell the word without an 'e' while the 'radicals' spell the word with an 'e'. Professor George suggested I omit the 'e' and I have opted to do so for the purposes of this paper. (Personal correspondence with Professor George, November 23, 2001.) (copy on file with writer)

[14] . See, for example, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide: A Report on Aboriginal People and Criminal Justice In Canada (Ottawa: Supply and Services, 1996) at 310 (vis. failure of justice system) and xi and 7 (vis. denial of justice). (Bridging the Cultural Divide) See also the Law Reform Commission of Canada, Minister's Reference: Aboriginal Peoples and Criminal Justice (Ottawa: Law Reform Commission, 1991). (Minister's Reference) At a provincial level, see A.C. Hamilton and C.M. Sinclair, Report of the Aboriginal Justice Inquiry of Manitoba, Vol. 1, The Justice System and Aboriginal People (Winnipeg: Queen's Printer, 1991) at 1 (Aboriginal Justice Inquiry) Available online at <http://www.ajic.mb.ca/reports/final_toc.html> . For a comprehensive overview of reports and recommendations in relation to First Peoples and the criminal justice system, please see Royal Commission on Aboriginal Peoples, Aboriginal Peoples and the Justice System, Report of the National Round Table on Aboriginal Justice Issues (Ottawa: Supply and Services, 1993) at 15-35 (Report of the National Round Table on Aboriginal Justice Issues) and Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra note 1 at xi and 7 (references omitted).

[15] . Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra note 14 at 309. The Supreme Court of Canada has acknowledged that "for many, if not most [A]boriginal offenders, the current concepts of sentencing are inappropriate because they have frequently not responded to the needs, experiences, and perspectives of [A]boriginal people or [A]boriginal communities." (R. v. Gladue, [1999] 1 S.C.R. 688 at 727) (Gladue)

[16] . Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra note 14 at xi and 7 (references omitted).

[17] . Justice Mary Ellen Turpel, for example, writes that the "grinding poverty and economic destruction" experienced by many First Nations people, attributable almost exclusively to initiatives such as the federal government's residential school initiative and decades of dislocation attributed to forced government relocation and/or destruction of subsistence economies, has manifested itself in "family violence, depression and suicide.' (M.E. Turpel in O. Mercredi and M.E. Turpel, In the Rapids: Navigating the Future of First Nations (Toronto: Penguin Books, 1994) at 3. (In the Rapids) The Supreme Court of Canada in Gladue noted that the effect of federal government initiatives was apparent in "low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness and community fragmentation." (Gladue, supra note 2 at 742.)

[18] . C. LaPrairie, Examining Aboriginal Corrections in Canada (Ottawa: Supply and Serivces, 1996) at Part IV. Available online at <http://www.sgc.gc.ca/epub/abocor/e199614/e199614.htm> [19] . Ibid. at Part IV, section 2.

[20] . Ibid.

[21] . Ibid.

[22] With respect to the first two points, please see Gladue (supra note 15) and references cited therein; R. v. Williams [1998] 1 S.C.R. 1128; M. Jackson, "Locking Up Natives in Canada" (1989) 23 U.B.C. L. Rev. 215; A.C. Hamilton and C.M. Sinclair, eds., Aboriginal Justice Inquiry, supra note 14 and Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra note 14. With respect to systemic discrimination in the sentencing process, please see T. Quigley, "Some Issues in Sentencing of Aboriginal Offenders" in R. Gosse, J. Youngblood Henderson & R. Carter, compilers, Continuing Poundmaker and Riel's Quest: Presentations Made at a Conference on Aboriginal Peoples and Justice (Saskatoon: Purich Publishing, 1994) at 275-276. Rudin defines colonialism as "explicit government policies designed to weaken Aboriginal culture and traditions." J. Rudin, supra note 1 at 212.

[23] . Quigley, supra note 22 at 275-276. The quote in its entirety is as follows, "[s]ocioeconomic factors such as employment status, level of education, family situation, etc., appear on the surface as neutral criteria. They are considered as such by the legal system. Yet they can conceal an extremely strong bias in the sentencing process. Convicted persons with steady employment and stability in their lives, or at least prospects of same, are much less likely to be sent to jail for offences that are borderline imprisonment offences. The unemployed, transients, the poorly educated are all better candidates for imprisonment. When the social, political and economic aspects of our society place Aboriginal people disproportionately within the ranks of the latter, our society literally sentences more of them to jail. This is systemic discrimination." (Ibid.)

[24] See, for example, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra note 14 at 310 and 224. The inherent right to self-government, in turn, stems from a variety of sources including "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 [Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11]." (A.C. Hamilton and C.M. Sinclair, "Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court" Vol. 1, Chapter 7, Aboriginal Justice Inquiry <http://www.ajic.mb.ca/reports/final_toc.html> , supra note 14. See also Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra note 14 at 310 and Law Reform Commission of Canada, Minister's Reference, supra note 14.) For the Kanienkehaka (people who live by the flint or 'Mohawk' people, the key basis for a separate process is the Two Row Wampum Treaty is an agreement between the Kanienkehaka ('Mohawks') and the Dutch dating to 1645. In 1666, following the defeat of the Dutch by the British, the Mohawks extended this same Treaty, under the name 'Silver Covenant Chain', to the British. (See, for example, G.R. Alfred, "Meaning of Self-Government", supra note 6 at 7.) While these recommendations refer to separate justice systems, it needs to be borne in mind that
"the concept of a 'separate' justice system itself is itself a misnomer since 'justice' for Native peoples was not viewed as a separate institution. Rather, justice was "an integral part of the socialization process and the social, religious, economic and organizational functioning of the group." (M.O. Nielsen, "Criminal Justice and Native Self-Government" in R.A. Silverman and M.O. Nielsen, eds., Aboriginal Peoples and Canadian Criminal Justice, supra note 11 243-257 at 245) Nielsen understands the concept of a separate system to include a law code, police and a court. (Ibid. at 244) Further, as Patricia Monture-Okanee observed, "[j]ustice must be seen to be a process not a concept, and particularly not a concept that is once removed from the process of dispute resolution as it is currently known in Canadian law." (P.A. Monture-Okanee, "The Roles and Responsibilities of Aboriginal Women: Reclaiming Justice" (1992) 56 Sask. L. Rev. 237-266 at 265.) ("Roles and Responsibilities of Aboriginal Women")

[25] A.C. Hamilton and C.M. Sinclair, "Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court" Vol. 1, Chapter 7, Aboriginal Justice Inquiry <http://www.ajic.mb.ca/reports/final_toc.html> , supra note 14.

[26] I originally was planning on attributing the phrase 'more theoretical than real' to Nielsen in her article "Criminal Justice and Native Self-Government", supra note 24. After having read that article on numerous occasions, however, I have been unable to find reference to that phrase in Nielsen's article (or any other articles I read in completing research on this paper). While I myself have used the phrase in other contexts, I have not done so to date in the context of First Peoples and am uncomfortable attributing this phrase to myself so I have opted to place single quotation marks around it.

[27] The desire for increased inclusivity of First Peoples in the Canadian criminal justice system is particularly ironic given the over-representation and over-involvement of First People in that system and the federal government's assimilationist policies and legislation concerning First Peoples.

[28] Since the 1980's, for example, the Ontario government has had a special program for full- and -part-time Aboriginal justices of the peace. The establishment of elders' panels to advise the court on sentencing in non-jury cases was provided to both Sandy Lake and Attawapiskat First Nations by the Ontario provincial government. A similar initiative geared at young offenders has existed on Christian Island since the 1970s." (A.C. Hamilton and C.M. Sinclair, "Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court" Vol. 1, Chapter 7, Aboriginal Justice Inquiry <http://www.ajic.mb.ca/reports/final_toc.html> , supra note 14.) Please note that reference to this program for Ontario Justices of the Peace is not to be confused with discussion concerning section 107 Indian Act Justices of the Peace discussed later. (R.S.C. 1985, c. I-5)

[29] M.O. Nielsen, supra note 24 at 244, 256 n3 and at 243. This being said however, it is acknowledged that there is a concern amongst First Peoples with respect to their capacity (both human and financial) to support a truly independent criminal justice system. See, for example, A.C. Hamilton and C.M. Sinclair, "Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court" Vol. 1, Chapter 7, Aboriginal Justice Inquiry <http://www.ajic.mb.ca/reports/final_toc.html> , supra note 14. Moreover, since each community is unique and approaches to justice are informed by individual circumstances and capacities it is not necessarily the case that the right to the existence of a separate justice system and the promise offered by a separate system will necessarily translate into First Peoples wanting or needing "exclusive jurisdiction, or total control, over justice." ("Background, Aboriginal Peoples and the Administration of Justice" <http://www.schoolnet.ca/aboriginal/issues/justice-e.html> )

[30] Ontario Federation of Indian Friendship Centres, Breaking the Cycle: Community Youth Justice Alternatives (Toronto: Ontario Federation of Indian Friendship Centres, 2001) at 51. (Breaking the Cycle)

[31] The inspiration for this came after reading D. Yarrow, "The Great Law of Peace: New World Roots of American Democracy" (1987) available online at <http://www.kahonwes.com/iroquois/document1.html 1.html> [32] G.R. Alfred, Heeding the Voices of Our Ancestors, supra note 6 at 2. The Mohawks of Kahnawake share the latter territory with Mohawks of Kane(h)satake. (Ibid.) Alfred notes that the Kahnawa'kehró:non (people who live by the rapids also known as Kahnawake 'Mohawks') also
"claim ownership of the Seigneurie de Sault St-Louis, a 1680 seigniorial grant which includes the current Reserve as well as approximately 24,000 acres of additional land on the Reserve's eastern border, presently alienated from the Mohawks and occupied by a number of non-Indian municipalities." (Ibid.)

[33] Indian and Northern Affairs Canada, "The Mohawks of Kahnawake" <http://www.ainc-inac.gc.ca/qc/gui/kahnawake_e.html> ("Mohawks of Kahnawake") There was no date provided on the website by way of point of reference. Note, however, that George-Kanentiio estimates the population of Kahnawake at 7,878 (D. George-Kanentiio, Iroquois Culture & Commentary (Santa Fe, New Mexico: Clear Light Publishers, 2000) at 178). George-Kanentiio is a Kanienkehaka (people of the flint), born and raised in the Community of Akwesasne, now residing in Oneida Territory.

[34] Alfred, Heeding the Voices of Our Ancestors, supra note 6. Note that Indian and Northern Affairs Canada describes the community as being 10 kilometres southwest of Montréal on the south shore of Lake Saint-Louis. Indian and Northern Affairs Canada, "The Mohawks of Kahnawake", supra note 33. The other seven communities are Six Nations, Gibson, Tyendinaga, Kane(h)satake, Akwesasne, Kanatsoharake and Kanienkeh.("History and Culture of the Mohawks of Kahnawake <http://www.kahnawake.com/ckr/1812.htm> ) Please note the discrepancy between this information on the Mohawk Council of Kahnawake's website and Elliott's text which refers to seven and not eight communities. (D.W. Elliott, Chapter 11, Law and Aboriginal Peoples in Canada (4th ed.) (North York: Captus Press, 1992) 139-163 at 153.)

[35] The other four Nations comprising the original Five Nations are the Oneida, Onondaga, Cayuga and Seneca. (Alfred, Heeding the Voices of Our Ancestors, supra note 6 at 77.) As will be discussed later in the paper, the Tuscarora Nation joined the Five Nations resulting in the formation of the Six Nations Confederacy around 1714. (Kanatiyosh (Onondaga Mohawk), "Influence of the Great Law", Part 2, supra note 6. Dale Dione (Kahnawake, Kanien'keha (Mohawk) Nation) has noted the date as 1712, (Dale Dione, Presentation by Kahn-Tineta Horn and Karonhiahente Dale Dione in Round III of Public Hearings held at Kahnawake Territory (via Québec) on May 5, 1993 in Royal Commission on Aboriginal Peoples, For Seven Generations, supra note 6 at 159). Note that reference to the 'Six Nations Confederacy' is to be distinguished from reference to the 'Six Nations Territory' in Figure 'B'. The Six Nations Territory is one of eight Territories comprising the Kanien'keha (Mohawk) Nation. The Kanien'keha Nation, in turn, is one of the original five (and with the joining of the Tuscarora Nation, six) nations that formed the Iroquois Confederacy.

[36] B.E. Johansen, "Dating the Iroquois Confederacy" 1 (3 & 4) (Fall: October/November/December 1995) Akwesasne Notes New Series 62-63 reproduced with permission at http://www.ratical.com/many_worlds/6Nations/DatingIC.html IC.html>). ("Dating the Iroquois Confederacy") The 1142 date is some 300 plus years earlier than the previous date of 1451 upon which there is currently scholarly consensus. (Ibid.) The latter date was proposed by Paul A.W. Wallace in White Roots of Peace. (Ibid.) (P.A.W. Wallace, White Roots of Peace, Port Washington, New York: I.J. friedman, 1968, c. 1946) (White Roots of Peace). The earlier date is attributable to the work of Barbara Mann (then a doctoral student in American Studies at Toledo University) and Jerry Fields (an astronomer described as an "expert in the history of solar eclipses"), both researchers at Toledo University in Toledo, Ohio (U.S.A.). (B.E. Johansen, "Dating the Iroquois Confederacy", supra note 36) According to Johansen, the researchers are the "first scholars to combine documentary history with oral accounts and precise solar data in an attempt to date the origin of the Iroquois League." (Ibid.) The Mann and Fields article is published in 21(2) American Indian Culture and Research Journal. (George-Kanentiio, supra note 33 at 27.)

[37] George-Kanentiio, supra note 33 at 98-99. The Kaienerekowa expressly forbid Rotinoshonni to submit to any external authority and if they opted to do so they were then considered to be outside the Confederacy. This prohibition was used as a basis to challenge the authority of an Ontario Superior Court in R. v. David [2000] O.J. No. 561 (Court File No. 2070-98) (February 21, 2000) (Sup. Ct). (R. v. David)

[38] George-Kanentiio, supra note 33 at 99.

[39] Ibid. at 10.

[40] Great Law of Peace: The Three Principles of the Great Law: <http://sixnations.buffnet.net/Great_Law_of_Peace/?article =three_principals> The Peacemaker travelled amongst the Five Nations and brought his message of peace, power and righteousness in an effort to persuade the Nations to adopt his teachings. He commenced with the Kanien'keha Nation in the east and ended with the Seneca. (MikeTBen, "The Founding of the Kahniakehaka (Mohawk) Nation Council" <http://members.aol.com/_ht_a.miketben2/miktben7.htm?mtbrand =AOL_US> ) ("The Founding of the Kahniakehake (Mohawk) Nation Council") According to the latter website, the article contained therein was provided using the knowledge of Chief John Arthur Gibson, Concerning the League: The Iroquois League Tradition As Dictated in Onondaga by John Arthur Gibson, ed. and trans. H. Woodbury (Winnipeg: Algonquian and Iroquoian Linguistics, 1992). The interpretation of the article appearing on the website was provided by the "Mohawk Nation Council in collaboration with the Circle of Knowledge and Traditional Iroquoian Orator's Society." (MikeTBen, "The Founding of the Kahniakehaka (Mohawk) Nation Council", supra note 40.) The Hiawatha Belt named after the Peacemaker's spokesperson, Hiawatha, details the union of the Five Nations. The belt contains symbols that appear as interlocking squares, two squares on either side of the tree depicting the Great Law of Peace. The belt is read from right to left. The first two squares starting from the right symbolize the Kanien'keha and Oneida Nations. The tree in the middle represents the Onondaga Nation. Continuing from right to left, the third and fourth squares represent that Cayuga and Seneca Nations respectively. The white lines that lead away from the extreme right and left boxes illustrate the paths by which others are welcomed to join the Confederacy. (Kanatiyosh, "Influence of the Great Law", supra note 6) The tree referred to was a great white pine tree given by the Peacemaker as a symbol of the Great Law of Peace (Kaienerekowa). The Nations buried their arms in a hole in the ground in which the white pine tree was planted. The boughs of the pine tree shelter those Nations "willing to commit themselves to Peace." (Yarrow, supra note 31) On top of the pine tree is an eagle. The tree has four long roots - known as the 'white roots of peace' that "stretch out in the four sacred directions." (Ibid.)

[41] Kanatiyosh, "Influence of the Great Law", supra note 6.

[42] George-Kanentiio, supra note 33 at 114.

[43] "The Six Nations Confederacy: The Organization of the Confederacy" <http://www.schoolnet.ca/aboriginal/7gen/confed-e/html> [44] <http://www.tyendinaga.net/amsp/youth99/clan/> A 'clan' is understood as a "group of families that share a common female ancestry." "Great Law of Peace: What is the Great Law of Peace? <http://sixnations.buffnet.net/Great_Law_of_Peace/> Clan members are understood to be relatives of each other hence the prohibition against intermarriage within the same clan. (Ibid.)

[45] MikeTBen, "The Founding of the Kahniakehaka (Mohawk) Nation Council", supra note 40. See also "Great Law of Peace: The Three Principles of the Great Law", supra note 40 and Alfred, "Meaning of Self-Government", supra note 6 at 6-7.

[46] George-Kanentiio, supra note 33 at 105. The Kaienerekowa (Great Law of Peace), however, did not exist in isolation since its acceptance by the Five Nations and it is one of three traditional bases of social order amongst the Rotinohshonni. In addition to the Kaienerekowa there is the 'Handsome Lake Code' named after Seneca Chief Skaniatariio (Handsome Lake). This 'Code' consisted of a set of rules that "defined communal relationships and provide standards for ethical behaviour." (Ibid.) George-Kanentiio writes that "[c]ontroversy surrounded his teaching during his lifetime and after his death in 1815." (Ibid.) In addition there was customary or common law that did not appear in codified form but was "handed down across the generations." (Ibid.)

[47] "The Six Nations Confederacy: The Organization of the Confederacy" <http://www.schoolnet.ca/aboriginal/7gen/confed-e.html> supra note 43 and <http://www.tyendinaga.net/amsp/youth99/clan/> , supra note 44.

[48] George-Kanentiio, supra note 33 at 70.

[49] . S. Newhouse, The Constitution of the Confederacy by the Peacemaker, rev. by Chief Jacob E. Thomas (Teiohonwé:thon) 16th February 1989 (Wilsonville, Ontario: Sandpiper Press, 1989) at 24 referring to the 40th wampum. (The Constitution of the Confederacy by the Peacemaker) Chief Thomas was a Six Nations Elder and Cayuga Grand Chief who died at the age of 76 (August 16, 1998). Grand Chief Thomas was born into the Snipe clan and was "one of the few people capable of reciting the entire Kaianerenko:wa (Great Law) and among the first, if not the very first to do so in English." <http://www.ofifc.org/Page/NewsOld.asp> He was fluent in five of six "Iroquoian languages" and was known as "keeper of Indian language and culture." (Ibid.) Chief Thomas was scheduled to give "a complete recitation of the Great Code in Mohawk in a traditional setting, to be filmed by a production crew from California" in September 1998 and "[t]he end result was to be complete with simultaneous translation into the other Iroquoian languages and English." (Ibid.) Additional information on Jake Thomas is available through the Jake Thomas Learning Centre, founded in 1993 "as an independent experiential learning centre for the conservation of traditional Iroquoian culture." <http://www.tuscaroras.com/jtlc/JTLC/Purpose_of_the_JTLC.html> The Jake Thomas Learning Centre is located at , RR #1 Wilsonville, Ontario N0E 1Z0 [phone].

[50] George-Kanentiio, supra note 33 at 25

[51] The Chiefs of the Grand Council are also known as Council Lords of the Confederate Council (See, for example, S. Newhouse, The Constitution of the Confederacy by the Peacemaker, supra note 49 at 4.)

[52] Great Law of Peace: How Does the Grand Council Work <http://sixnations.buffnet.net/Great_Law_of_Peace/?article-how_does_grand_council_work> )

[53] A Rotianer, however, could be 'dehorned' by the Clanmothers or upon the direction of their clan (Dione, supra note 35 at 162) following the violation of the peoples' trust. (George-Kanentiio, supra note 33 at 131). 'Dehorned' refers to the removal of the deer antlers worn on the headdresses of chiefs to illustrate their status as chiefs. (See, for example, Great Law of Peace: How Does the Grand Council Work, supra note 52) According to George-Kanentiio, the removal of the antlers was the greatest shame in Iroquois society. The symbolism inherent in the removal of the antlers is that the former chief would "figuratively bleed from his forehead until the day he dies. The disgrace is so severe that the ousted man is shunned by all Iroquois and considered the 'walking dead'." (George-Kanentiio, supra note 33 at 131)

[54] George-Kanentiio, ibid. at 95.

[55] Ibid. at 25. The power given to women by the Peacekeeper in the position of Clanmother is attributed to the Peacekeeper's appreciation of the help provided to him by Jikohnsaseh, a woman credited with having rejuvenated the Peacekeeper's spirit following initial skepticism he encountered in his travels espousing his message of peace, power and righteousness, after which "he continued and was able to persuade fifty leaders to receive his message." ("Great Law of Peace: The Three Principles of the Great Law", supra note 40)

[56] George-Kanentiio, supra note 33 at 96.

[57] "Great Law of Peace: How Does the Grand Council Work?", supra note 52.

[58] Dione, supra note 35 at 163.

[59] "The Six Nations Confederacy: The Organization of the Confederacy", supra note 43.

[60] Dione, supra note 35 at 162.

[61] Patricia Monture-Okanee explains her understanding that First Peoples have a different understanding of sovereignty than Canadians in general:
"[t]he form of social control that Canada has accepted is an externalized one. Social control is seen as a power of the state which rests fully outside of the individual. One Aboriginal interpretation of this recognition is that it is one of the ways in which Canadian citizens have given up their sovereignty. I understand this form of sovereignty which Canadians have deferred to the state to be about individual responsibility. Aboriginal Peoples have maintained a desire to be sovereign (or self-governing) both as individuals and collectives. This means that we have not deferred either our individual or collective right(s) to be sovereign. This is a complex notion of government relations which many non-Aboriginal people have difficulty comprehending. It also significantly impacts on the way dispute resolution is constructed." (Monture-Okanee. "Alternative Dispute Resolution", supra note 10 at 137-138.)

[62] George-Kanentiio, supra note 33 at 131.

[63] See, for example, George-Kanentiio, ibid. at 55

[64] "Great Law of Peace: The Three Principles of the Great Law", supra note 40.

[65] "Great Law of Peace: How Does the Grand Council Work?", supra note 52. Absent clan approval, a Rotianer is not permitted to sign or do anything on behalf of the clan. (George-Kanentiio, supra note 33 at 131)

[66] "Great Law of Peace: How Does the Grand Council Work?", supra note 52.

[67] The Longhouse was viewed as the basis of "social, cultural and political activity". (Alfred, Meaning of Self-Government, supra note 6 at 3. The term 'Longhouse' also describes the traditional Iroquois-style government. (Ibid.)

[68] Kanatiyosh, "Influence of the Great Law", supra note 6.

[69] Ibid.

[70] "Great Law of Peace: How Does the Grand Council Work?", supra note 52.

[71] "Great Law of Peace: The Three Principles of the Great Law", supra note 40.

[72] "Great Law of Peace: How Does the Grand Council Work?", supra note 52.

[73] George-Kanentiio, supra note 33 at 113.

[74] The Longhouse has been likened to "a two-house congress in one body". )Kanatiyosh, "Influence of the Great Law", supra note 6)

[75] Dickson-Gilmore, 'Resurrecting the Peace", supra note 11 at 265.

[76] . After the Tuscarora Nation joined the Confederacy in the early 1700s they were considered 'younger brothers' and were represented at the Grand Council by the Rotianer from the Cayuga and Seneca Nations. The Tuscarora, however, do have access to "Chieftainship titles". See, for example, "Great Law of Peace: Who are the Chiefs of the Confederacy?" <http://sixnations.buffnet.net/Great_Law_of_Peace/?article-who_are_chiefs> [77] Kanatiyosh, "Influence of the Great Law", supra note 6.

[78] "Great Law of Peace: How Does the Grand Council Work?", supra note 52

[79] Ibid. On occasion, even where consensus was reached, the Onondaga could request that the matter be reconsidered and return the matter back to the elder brothers for further deliberation. Where, however, the elder and younger brothers could not reach consensus, Rotianer from the Kanien'keha Nation would present the matter to the Firekeepers to render a binding decision or the Onondagas could decide to postpone their decision to a later meeting. (Ibid.) After such an intensive consensus-based deliberation process, however, there would need to be a strong reason for doing so failing which the Clan Mothers would address the matter.

[80] See, for example, C. Deom, "The Traditional Justice System of the Kanienkehaka With A Historical Background to Certain Crimes and Their Punishment" (June 30, 1988) [unpublished] (copy on file with writer) at 1 citing J. Lafitau, Customs of the American Indians, 1974-77 ed., I at 299-300 concerning the rarity of civil disputes and C. Deom, supra note

[80] at 9 concerning the rarity of criminal disputes. Deom's paper is based on research material compiled by A. Brian Deer. At the time Deom wrote her paper she was with the Kanien'keha Nation Office, Kahnawake Branch.

[81] C. Deom, supra note 80 at 4.

[82] Ibid.

[83] Ibid. at 5.

[84] Ibid.

[85] Ibid. at 4.

[86] By way of a contemporary illustration, in 1988 three youth from two different clans Karoniarahkwen (Ryan) Deer and Onakarakete (Dean) Horne of the Bear Clan and Sahkoianahawi (Jay) Diabo of the Snipe Clan were involved in wrongdoing in Kahnawake. The Kanien'keha ('Mohawk') Nation Council ended up adjudicating the wrongdoing in view of the seriousness of the wrongdoing. (See, for example, M. David, "Two Justice Systems For One Nation?" 6/4 Tribune Fuive 16, C. Deom, supra note 80 at 16 and the decision of the Longhouse in the matter of Karoniarahkwen (Ryan) Deer of the Bear Clan, Sahkoianahawi (Jay) Diabo of the Snipe Clan and Onakarakete (Dean) Horne of the Bear Clan dated February 25, 1988.) The wrongdoing included theft of newspapers, use of an alcohol substance, deception, driving while intoxicated and arson. The Longhouse decision is detailed at Appendix 'A'. The wrongdoers received a number of sanctions. In addition to being required to publicly apologize to the people in the Longhouse for deception also received their first warning under the custom and practice of the Three Warnings System. (Decision of the Longhouse in the matter of Karoniarahkwen (Ryan) Deer of the Bear Clan, Sahkoianahawi (Jay) Diabo of the Snipe Clan and Onakarakete (Dean) Horne of the Bear Clan dated February 25, 1988.) (copy on file with writer.)

[87] George-Kanentiio, supra note 33 at 102.

[88] Ibid. at 99.

[89] Source: "The Six Nations Confederacy: The Organization of the Confederacy", supra note 43.

[90] Letter dated 26 February 1988 from Marina Delaronde, Secretary, Kanien'keha ('Mohawk') Nation Kahnawake Branch to Chief of the Mohawk Council of Kahnawake (Chief Joseph Norton), the Chief of the Peacekeepers (Ronald Skye) and the Mohawk Council of Kahnawake's Justice Co-ordinator (Peggy Mayo). (Copy on file with writer) The Kahnawake Peacekeepers are a community police force that have existed since 1979-1980. According to Phil Schneider, legal advisor of the Mohawk Council of Kahnawake, the Mohawk Peacekeepers are:
"..an independent policing force and peace-keeping force in the community of Kahnawake. By 'independent' I mean not answerable directly to the provincial or the federal government. Since 1979-80 they have been carrying out all typical policing functions in this community, both in terms of applying those functions to the people of the community and those non-Natives going through the community on the various highways and coming into the community for various purposes." (Phil Schneider, Legal Advisor, Mohawk Council of Kahnawake in Round III of Public Hearings held at Kahnawake Territory (via Québec) on May 6, 1993 in Royal Commission on Aboriginal Peoples, For Seven Generations, supra note 6 at 534.)

[91] C. Deom, supra note 80 at 1-4.

[92] . "Great Law of Peace: What are the values and traditions of the founding constitution of the Iroquois Confederacy?" http://sixnations.buffnet.net/Great_Law_of_Peace/?article=three_principals

[93] . Ibid.

[94] . Ibid.

[95] . Ibid.

[96] . Ibid.

[97] . Ibid.

[98] . Ibid.

[99] . Ibid. An additional point related to rational thought is that "[p]eople must be willing to enforce a civil government to oversee that righteousness is enjoyed by all[.]" (Ibid.)

[100] C. Deom, supra note 80 at 2 citing Wallace, supra note 36.

[101] C. Deom, supra note 80 at 1-2.

[102] Ibid. at 2. Prior to reading Deom's paper, my understanding of persuasion in the context of conflict resolution was external rather than internal, i.e., I understood the principle of persuasion in terms of my capacity to persuade another party to act in a certain way and did not apply that principle to myself. This experience is indicative of the very different understandings that the Onkwehonwe (original beings) and non-Onkwehonwe bring to dispute resolution. (See, for example, Monture-Okanee, "Alternative Dispute Resolution", supra note 10 at 137-138.)

[103] C. Deom, supra note 80 at 2.

[104] Ibid. at 3.

[105] Ibid..

[106] Ibid. at 13.

[107] Ibid.

[108] Ibid. at 12-13.

[109] Ibid. at 13.

[110] Ibid.

[111] Ibid.

[112] Ibid.

[113] Ibid. at 14.

[114] Ibid. at 15.

[115] Ibid. at 13.

[116] Ibid. at 14 and 12-13.

[117] Ibid. at 14.

[118] Ibid. at 14-15.

[119] Ibid. at 15.

[120] Ibid.

[121] Ibid. A sanction that could be handed out by the Kanien'keha Nation Council was a warning to a wrongdoer that followed that person for life pursuant to the 'System of the Three Warnings'.The System of the Three Warnings was given to the Rotinohshonni by the Skennenrahawi (Peacemaker) as a non-violent means to address the situation where a community member posed a risk to the peace and security of the community. In essence the three warnings provided the community with a way to determine "when an individual or individuals can no longer co-exist in our society and still have peace and security [in the society]." (Decision of the Kahnawake Longhouse, supra note 86.) The first warning reminded a wrongdoer of the duties and obligations owed to the people and was accompanied by a penalty. The message accompanying the second warning was the same as the first but the accompanying penalty was more severe. The third warning was "the last and final chance for someone to correct their erring ways." (Ibid.) Failure to heed the third warning resulted in banishment for life.(Ibid.)

[122] C. Deom, supra note 80 at 1 citing Wallace, supra note 36 and C. Deom, supra note 80 at 6.

[123] George-Kanentiio, supra note 33 at 99. It was permissible to obtain redress through the execution of the wrongdoer or a member of the wrongdoer's family or clan. The Peacemaker, however, encouraged the Haudenosaunee to trade the 'eye for an eye' approach with an approach that championed compensation and endeavoured to restore balance amongst the clans. (Ibid.)

[124] Ibid.

[125] Ibid. at 100.

[126] Ibid.

[127] Ibid.

[128] Ibid.

[129] Alfred, "Meaning of Self-Government", supra note 6 at 6.

[130] Ibid. at 5.

[131] Ibid. at 3. The largest of the three Longhouse groups operates the "Mohawk Nation Office" that operates in parallel to the 'Mohawk Council of Kahnawake'. (Alfred, "Heeding the Voices of Our Ancestors, supra note 6 at 138.

[132] Alfred writes, for example,
"[i]n contrast to the mck [Mohawk Council of Kahnawake] the longhouses are guided exclusively by the principles laid out in the Kaienerekowa. Although there is agreement among the longhouses that the Great Law of Peace is the sole legitimate constitution and body of law for Mohawk people, there remains some disparity in the interpretation of the Law. This disparity of opinion with regard to the application of the Law in the contemporary era and the recreation of formal structures of governance accounts for the existence of different longhouses." (Alfred, "Meaning of Self-Government", supra note 6 at 12)

[133] According to Alfred, the Mohawk Council of Kahnawake is "generally accepted by the community as being the legitimate legislative and administrative authority, as well as representing the community in relations with outside governments." (Ibid. at 13)

[134] Ibid. The band council system in general dates to 1890 pursuant to the Indian Advancement Act of 1889. (J.S. Frideres, Aboriginal Peoples in Canada: Contemporary Conflicts (5th ed.) (Scarborough: Prentice-Hall, 1998) at 347) The administration of the band council system started in the 1930's and was consolidated with the 1951 amendments to the Indian Act. (Alfred, "Meaning of Self-Government", supra note 6 at 9)
Section 74 of the Indian Act provides for the election of a chief and band councillors. The Canadian government does recognize some custom band systems where the band in question has opted out of section 74 of the Indian Act . (See, for example, J. Woodward, Native Law (Scarborough: Carswell, [loose-leaf], section 7.5.) For greater certainty, the Mohawk Council of Kahnawake is not a 'custom election band'. (Personal correspondence, Dr. Taiaiake Alfred (G.A. Alfred), April 2002. Copy on file with writer.)

[135] Evidence of this imposition within the Kanien'keha ('Mohawk') Nation, Community of Akwesasne, is succinctly captured by George-Kanentiio: "[a]t dawn on May 1, 1899, under cover of fog, a small contingent of Mounties entered Akwesasne to apprehend the chiefs [Rotianer]. They had called the Mohawks to a meeting in the local council house, under the pretext of looking for workers for a bridge construction project.
When the chiefs entered the building, the Mounties moved To make them prisoners only to be met by John Fire- Saiewisakeron (also known as Jake Ice), a brother of one of the chiefs. In the ensuing scuffle, Fire was shot and killed by Lt. Colonel Sherwood, the officer in charge. The chiefs were taken to jail, where some of them remained imprisoned for over a year for no other reason than that they opposed the new 'Indian Act' government." (George-Kanentiio, supra note 33 at 180) Pursuant to powers rooted at subsection 91(24) of the Constitution Act, 1867, the Parliament of Canada, and thus the federal government, has jurisdiction over "Indians and land reserved to the Indians." (S. Imai, Aboriginal Law Handbook (2d ed.) (Scarborough: Carswell, 1999) at 10) The government exercises this authority through various policies and through various versions of what is now the Indian Act (R.S.C. 1985, c. I-5)

[136] See, for example, the overview of the structure of the Mohawk Council of Kahnawake and the description of the functions of the Grand Chief and Council on the Mohawk Council of Kahnawake website <http://www.kahnawake.com/council/index.htm> and <http://www.kahnawake.com/council/chiefs/index.htm> respectively.

[137] After having researched the pre- and post-contact processes extensively, these distinctions are visibly evident.

[138] Mr. Patton (Mohawk Trail Longhouse), Presentation by the Mohawk Trail Longhouse and the Kanesatake Longhouse, Mr. Patton (Mohawk Trail Longhouse) and Curtis Nelson (Kanesatake Longhouse) in Round III of Public Hearings held at Kahnawake Territory (via Québec) on May 6th, 1993 in Royal Commission on Aboriginal Peoples, For Seven Generations, supra note 6 at 364

[139] Alfred, "Meaning of Self-Government, supra note 6 at 16. As a result, the band council system is rejected as a governance mechanism based on "Euro-American laws and principles." (Ibid.)

[140] Mr. Nelson (Kanesatake Longhouse), Presentation by the Mohawk Trail Longhouse and the Kanesatake Longhouse, Mr. Patton (Mohawk Trail Longhouse) and Curtis Nelson (Kanesatake Longhouse), supra note 138 at 348.

[141] Alfred, "Meaning of Self-Government, supra note 6 at 12.

[142] Ibid.

[143] According to Alfred,
"[t]his fact has much to do with the efforts the mck has made to distance itself from the Indian Act and establish an independent source of legitimacy. Although still saddled with the philosophical and administrative burden of its creation under the Indian Act and forceful imposition by federal authorities, the mck has been largely successful in shifting the locus of its legitimacy from Ottawa to Kahnawake. The mck at present is an elected and representative body that is accountable, along with the subsidiary institutions it has created [such as the Kahnawake Justice Commission], to the community." (Ibid.)

[144] Letter of February 26, 1988, supra note 90.

[145] In Canada, legislative powers are distributed between the Parliament of Canada and the legislatures of the provinces (ss. 91 and 92 respectively, Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, formerly the British North America Act, 1867. Pursuant to powers rooted at subsection 91(24) of the Constitution Act, 1867, the Parliament of Canada, and thus the federal government, has jurisdiction over "Indians and land reserved to the Indians." Parliament also has jurisdiction over the criminal law including criminal law procedure but excluding the constitution of courts of criminal jurisdiction while provincial legislatures have responsibility for "[t]he [a]dministration of [j]ustice in the Province, including the [c]onstitution, [m]aintenance, and [o]rganization of Provincial Courts, both of [c]ivil and of [c]riminal [j]urisdiction, and including [p]rocedure in [c]ivil [m]atters in those Courts" (ss. 91(27) and 92(14) respectively). Parliament is also responsible for "[t]he [e]stablishment, [m]aintenance and [m]anagement of [p]enetentiaries" while provincial legislatures have this same responsibility in relation to "[p]ublic and [r]eformatory [p]risons in and for the Province." (ss. 91(28) and 92(6) respectively). (emphasis added)

[146] According to the Aboriginal Justice Inquiry of Manitoba, an Indian agent when sitting as a Justice of the Peace likely "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" owing to the agent's expanded jurisdiction and their authority over "any other matter affecting Indians". (An Act to Further Amend the Indian Act, 1880 (S.C. 1884, c. 27 (47 Vict.) s. 23) The Indian agent was a creature of the Indian Act. In 1881, the Agent also became a Justice of the Peace. (An Act to Amend the Indian Act, 1880, (S.C. 1881, c. 17 (44 Vict.) s. 12) The 'expanded jurisdiction' refers to the agent's acquisition of the powers of a "police or stipendiary magistrate" in 1882 (An Act to Further Amend the Indian Act, 1880 (S.C. 1882, c. 30 (45 Vict.) s. 3) followed by the acquisition in 1884 of the ability to conduct trials wherever the agent considered it to be "conductive to the ends of justice."(An Act to Further Amend the Indian Act, 1880 (S.C. 1884, c. 27 (47 Vict.) ss. 22 and 23) Implicit here is the understanding that such trials could occur outside the Territory. (B.W. Morse, "A Unique Court: S. 107 Indian Act Justices of the Peace" (1982) C.L.A.B. Nos. 2 & 3 131-150 at 133) According to the Aboriginal Justice Inquiry of Manitoba, as at 1884
"[t]hese 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." ("Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court" <http://www.ajic.mb.ca/reports/final_toc.html> , supra note 14) In 1886 the jurisdiction of an Indian agent was limited to violations under the Indian Act but the agent's jurisdiction over all offenders remained unchanged. (Indian Act (R.S.C. 1886, c. 43, s. 117) The agent's jurisdiction was expanded again in 1890 to include offences within An Act Respecting Offences against Public Morals and Public Convenience (R.S.C. 1886, c. 157) however this time the jurisdiction extended only to 'Indian' offenders. (An Act to Further Amend The Indian Act, Chapter Forty-three of the Revised Statutes (S.C. 1890, c. 29, s. 9) With the coming into force of the Criminal Code of Canada in 1892 resulted in the loss of jurisdiction over sex offences as these statutes/statutory provisions were repealed. (The Criminal Code, 1892 (S.C. 1892, c. 29 (55-56 Vict.)) Two years later, however, jurisdiction over these offences was returned to Indian agents. (An Act to Further Amend The Indian Act, Chapter Forty-three of the Revised Statutes (S.C. 1890, c. 29, s. 9) Concurrent jurisdiction was extended to Indian Agents acting as justices of the peace in three other areas: (i) prostitution in 1894 pursuant to An Act to Further Amend The Indian Act, Chapter Forty-three of the Revised Statutes (S.C. 1890, c. 29, s. 9) (see also The Criminal Code, 1892 (S.C. 1892, c. 29 (55-56 Vict.), s. 190); (ii) the incitement of "Indians to riotous acts' in 1894 (The Criminal Code, 1892 (S.C. 1892, c. 29) (55-56 Vict.) s. 98) and (iii) vagrancy in 1895 pursuant to An Act to Further Amend the Indian Act (S.C. 1895, c. 35, s. 7) ("Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court" <http://www.ajic.mb.ca/reports/final_toc.html> , supra note 14)

[147] In S. Haslip, "Aboriginal Sentencing Reform in Canada - Prospects for Success", supra note 4, for example, I wrote:
"[d]isproportionately high numbers of Canadian Aboriginal peoples are warehoused in federal and provincial jails. In the mid-1980s, for example, while Canada's Aboriginal peoples comprised approximately two percent of the Canadian population, 10.6% of the federal penitentiary male population was Aboriginal, while 13% of the federal penitentiary female population was Aboriginal. By 1997, Aboriginal peoples represented approximately three percent of the Canadian population and 12% of the federal male penitentiary population. At the provincial level, the trend towards the over- incarceration of Aboriginal offenders is even more pronounced, particularly in the western provinces." (para. 3, references omitted)

[148] See references supra notes 14 and 15.

[149] D. Dione, "Introduction" in Kahnawake Justice Commission (Sekéha 2000) Vol. 1(1) Planting the Seeds of Peace, supra note 6.

[150] See, for example, the Decision of the Longhouse in the matter of Karoniarahkwen (Ryan) Deer of the Bear Clan, Sahkoianahawi (Jay) Diabo of the Snipe Clan and Onakarakete (Dean) Horne of the Bear Clan dated February 25, 1988), supra note 86 and David, "Two Justice Systems For One Nation?" supra note 86 at 18 However, as David points out, it is necessary not to lose sight of the fact that, "in its simplest form, it [the case] deals with the welfare of three young individuals." (Ibid.) An overview of the facts in the case and the resulting decision of the Longhouse can be found at Appendix 'A'.

[151] I acknowledge that similar phraseology exists but I am at a loss to cite its source.

[152] The charges concerned conspiracy, arson and theft. (David, "Two Justice Systems For One Nation?" supra note 86 at 18) The respective Criminal Code provisions at the time of the offence were 423(d), 389(1)(a) and 283. (Ibid.) (Criminal Code of Canada, R.S.C. 1985, c. C-46.)

[153] Decision of the Kahnawake Longhouse, supra note 86. The third summons referenced the same three charges (Ibid.) The third youth was originally arrested and released on 18 February 1988 in relation to the wrongdoing of 17 February 1988..

[154] Court file no 505-01-000983-888. (Copy on file with writer)

[155] David, supra note 86 at 18.

[156] D. Dione, "Alternative Dispute Resolution: 'Planting Seeds of Peace" in Kahnawake Justice Commission, (Sekéha 2000) Vol. 1(1) Planting the Seeds of Peace. Supra note 6.

[157] David, supra note 86 at 18.

[158] Ibid. at 19. At the time of writing this article, the status of the outstanding warrants remained undetermined. The decision in R. v. David (supra note 37) illustrates a recent attempt by to rely upon traditional Rotinohshonni governance and conflict resolution processes to resolve a conflict with the law. In that case, Mr. David brought a motion to quash proceedings on the grounds that the Ontario Court of Justice lacked jurisdiction. This case involved offences under the Customs Act and Excise Act and additional counts of failing to report and failure to attend court as required under section 145 of the Criminal Code. Mr. David based his argument on the fact that he was a member of the Longhouse, he argued that he had the right to be tried by the Kanien'keha nation pursuant to the sovereignty and jurisdiction of the Mohawk nation. He relied on the Kaienerekowa (Great Law of Peace) which "explicitly forbids our submission to any type of foreign law or authority." (Ibid. at para. 10) He also relied on the Albany Treaty of 1664 (Two Row Wampum), particularly the provision that provides for the extradition of 'Indians' charged under "Canadian/British law" to their own people to be tried by their own people. (Ibid.) Justice Rutherford dismissed his application and in so doing rejected outright these claims, noting that the
"claim for full aboriginal Mohawk sovereignty, is not a novel one. It is a proposition that has been considered by Canadian courts on numerous occasions. It has never been accepted and I am certainly bound to reject it as well." (Ibid. at para. 14)

[159] The matter of why some community members choose to follow the traditional system and others have opted not to is beyond the scope of this paper.

[160] Whether designed to civilize or oppress or both, Indian Act prohibitions against participation or attendance at "ceremonials", for example, served to prevent the transfer of oral history, values, respect for government, respect for each other and ways in which to deal with disputes. (Justice Scow of the British Columbia Provincial Court, as reported in Royal Commission on Aboriginal Peoples, Final Report, Volume 1 - Looking Forward, Looking Back Available online at ( <http://www.indigenous.bc.ca/v1/Vol1Ch9s9tos9.14.asp> ) As Justice Scow observes, "... it was deemed illegal for our people to practice our ways." (Ibid.) Prohibitions against participation in and/or attendance at ceremonies, festivals and dances also had an indirect impact on participation in sport events that sometimes accompanied those events. (See, for example, S. Haslip, "A Treaty Right to Sport?" (June 2001) 8(2) Murdoch University Law Review (Perth, Australia) <http://www.murdoch.edu.au/elaw/issues/v8n2/haslip82.html> ) An activity such as lacrosse "while understood as a traditional Indian sport, was used as a mechanism to resolve disputes between communities[.] "(Ibid.) Morris, for example, writes that lacrosse also served as a 'place for spiritual recognition, as a place of spiritual gatherings and as a place of emotional celebration' (A. Morris, "The Olympic Experience: An Aboriginal Perspective" 9-11 at 9 in T. Taylor, ed., How You Play the Game: Papers from the First International Conference on Sports and Human Rights (September 1 - 3, 1999) (Australia: Human Rights Council of Australia, 2000) (ISBN 1 8636 566 2)

[161] Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court" <http://www.ajic.mb.ca/reports/final_toc.html> , supra note 14. The Community of Kahnawake is unique in that it is one of only three Territories that have a section 107 'Indian Act court' resided over by Justices of the Peace who are First Peoples. The other two Nations are Akwesasne and Pointe Bleu. (Ibid.)

[162] Ibid. Prior to this, on 23 November 1972, Justice Sharron was the first Onkwehonwe appointed as a member of a section 107 court in Akwesasne. (Ibid.) Subsequent appointments have included Winona Diabo and Joyce King Mitchell (Royal Commission on Aboriginal Peoples, Report of the National Round Table, supra note 14 at 403) as well as Stephanie Cross, Josie Currotte, Mike Diabo and Sam Kirby. (Kahnawake Justice Commission, "People Involved - The Kahnawake Justice Commission" <http://www.kahnawake.com/justice/who.htm> ) Limited information was available on the Pointe Bleu court other than that it has, according to the Manitoba Justice Inquiry, been in operation for some time. (Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court" <http://www.ajic.mb.ca/reports/final_toc.html> , supra note 14)

[163] See, for example, Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra note 14 at 103

[164] R.S.C. 1985, c. I-5, subsections 107(a) and (b) respectively. Section 107 provides
"[t]he Governor in Council may appoint persons to be, for the purposes of this Act, justices of the peace and those persons have the powers and authority of two justices of the peace with regard to
(a) any offence under this Act; and (b) any offence under 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." An 'Indian' is defined at subsection 2(1) of that Act as "a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian[.]" The provisions concerning cruelty to animals, common assault and breaking and entering stem from the 1951 amendments to the Indian Act. (The Indian Act (S.C. 1951, c. 29)) The vagrancy provision stems from the provision in An Act to Further Amend the Indian Act (S.C. 1895, c. 35, s. 7) which itself stems from An Act Respecting Offences Against Public Morals and Public Convenience (R.S.C. 1886, c. 157)

[165] Royal Commission on Aboriginal Peoples, Bridging the Cultural Divide, supra note 14 at 103.

[166] An Act to Further Amend the Indian Act (S.C. 1895, c. 35, s. 7) which itself stems from An Act Respecting Offences Against Public Morals and Public Convenience (R.S.C. 1886, c. 157).

[167] While the wrongdoing complained of in cases heard by the section 107 court are most likely alleged to have been committed within the territory where the court is situated, the court's jurisdiction extends to offences committed outside that territory. This external jurisdiction stems from the 1894 amendment to the Indian Act that expanded the Indian agent's jurisdiction to "anywhere in the country." (Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court, supra note 14)
The court's jurisdiction over offences under the Indian Act at subsection 107(a) is limited to offences committed under the Indian Act. Unlike subsection 107(b), subsection 107(a) makes no reference to the "race of the accused or his or her entitlement to registration". (Ibid.) Generally speaking, a person alleged to have violated an offence under the Indian Act would be an Onkwehonwe living within the Territory where the court was located although there is no stipulation that a wrongdoer must reside within the territory or be a member of the Nation where the court is situated. Similarly, there is no such residency restriction at subsection 107(b). (Ibid.) Unlike subsection 107(a), subsection 107(b), does restrict its application to 'Indians' or an offence relating to 'the person or property of an Indian' invoking the definition of 'Indian' at subsection 2(1) of the Indian Act (R.S.C. 1985, c. I-5). The Aboriginal Justice Inquiry of Manitoba notes the potential 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." (Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court", supra note 14)

[168] Ibid.

[169] Ibid.

[170] For this reason, the Aboriginal Justice Inquiry of Manitoba suggested that the section 107 court "should be considered more properly as an 'Indian Agent's Court'." (Ibid.)

[171] The strategy used by the Kahnawa'kehró:non of nominating Kahnawa'kehró:non for Justices of the Peace for the section 107 Indian Act in Kahnawake as a means by which to assert some measure of control over the Canadian criminal justice system is particularly ironic given that in the United States the Court of Indian Offences used "Indian judges to obliterate traditional law and means for dispute resolution, which were to be replaced by an Anglo-American system of justice so as to 'civilize' the Indian 'savages'." (Morse, supra note 146 at 134) The American Bureau of Indian Affairs started imposing Courts of Indian Offences in 1883 while an 1881 amendment to Canada's federal Indian Act resulted in a "similar objective." ("Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court", supra note 14.) When the Indian Act was amended in 1881 to provide for Indian Agents also being Justices of the Peace (An Act to Amend the Indian Act, 1880 (S.C. 1881, c. 17 (44 Vict.) s. 12) the only persons who could serve as Justices of the Peace under the Indian Act were Indian agents or their superiors. (Morse, supra note 146 at 134) This meant that the position was confined to employees of the Department of Indian Affairs who were "predominantly people without any Aboriginal ancestry." (Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court", supra note 14) The 1951 overhaul of the Indian Act saw this limited category opened to "persons". (Indian Act (S.C. 1951, c. 29, s. 105) This expanded jurisdiction did not preclude those Indian agents who were also recognized as Justices of the Peace from continuing to serve in that capacity (Ibid., s. 106) nor did it preclude the appointment of future Indian agents. (Morse, supra note 146 at 136) This expansion in scope coincided with the repeal of the definition of 'person' from under the Indian Act which from 1876 until the Indian Act was overhauled in 1951 had excluded Indians. (Indian Act, S.C. 1951, c. 29, s. 123. See also H. Foster, "Forgotten Arguments: Aboriginal Title and Sovereignty in Canada Jurisdiction Act Cases (1992) 21 Mta. L.J. 343 at 370.) Subsection 3(3) of the Indian Act (S.C. 1876, c. 18) defined a "person" as "an individual other than an Indian, unless the context clearly requires another construction". (S.C. 1876, c. 18, ss. 3(3), (12))

[172] The Aboriginal Justice Inquiry of Manitoba, for example, observed that "[w]ith the elimination of Indian agents, starting with the Walpole Island First Nation in 1965, the policy basis for the section 107 court system seemingly had disappeared." The court's ongoing active use today, however, is owing to "different reasons." (Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court", supra note 14)

[173] Ibid.

[174] Ibid.

[175] M.O. Nielsen, supra note 24 at 244 and 256 n3.

[176] Ibid. at 243

[177] "Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court", supra note 14

[178] Chief Joseph T. Norton in Round III of Public Hearings held at Kahnawake Territory (via Québec) on May 6th, 1993 in Royal Commission on Aboriginal Peoples, For Seven Generations, supra note 6 at 588-590.

[179] Alfred, "Meaning of Self-Government, supra note 6 at 6.

[180] Kahnawake Justice Committee, News Release: "Traditional Justice Coming Back to Kahnawake"(July 2000), <http://www.kahnawake.com/justice/news1.htm> , Kahnawake Justice Commission, "Introduction" <http://www.kahnawake.com/justice/index.shtml> ) The concept of 'alternative dispute resolution' suggests a number of initiatives including mediation, arbitration, restorative justice and resort to ombudspersons. See, for example, Kahnawake Justice Commission, Vol. 1(1) (Sekéha 2000) Planting the Seeds of Peace, supra note 6 at 2. See also Kahnawake Justice Committee, "Traditional Justice Coming Back to Kahnawake" (July 2000) News Release, supra note 6.Each such initiative encompasses a myriad of processes or programs that share, at minimum, the desire to resolve conflict outside of traditional channels. As at November 7, 2001, both restorative justice and mediation programs were in operation at Kahnawake. (Ibid.) Ron Skye of the Kahnawake Justice Commission confirms notes that the position of ombudsperson is being addressed. (Ron Skye, Kahnawake Justice Commission, personal correspondence, supra note 5) Ron also notes that since the arbitration option is "a bit more judicial by nature" this option needs to be addressed at the federal/provincial government level. (Ibid.)

[181] The Mohawk Council of Kahnawake structural chart on the Council's website does not include reference to the Kahnawake Justice Commission. According to Ron Skye, "[t]he Justice Commission was purposely left out of the diagram as it's function may be elevated to a more governmental level than an administrative one. However, there are administrative links to the operational aspects of the organization." (Ibid.)

[182] Kahnawake Justice Commission, "Restorative Justice: One Form of Alternative Dispute Resolution" <http://www/kahnawake.com/justice/rjustice.htm> [183] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 50 and 51. While this initiative is general in scope, it appears directed at youth. (Ibid. at 50-52, esp. 50-51)

[184] Personal correspondence, Ron Skye, supra note 5.

[185] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 50. One of the roles of the Alternative Justice Co-ordinator prior to the commencement of this process is to ensure that both the victim and offender have consented to participate in the restorative process. The parties also receive an orientation program with respect to the restorative justice process and are able to ask questions concerning the process. (Ibid. at 51)

[186] D. Dione/Karonhiahente, "Alternative Dispute Resolution: 'Planting Seeds of Peace' A Perspective by a Trained Facilitator" <http://www.kahnawake.com/justice/news2.htm> [187] Deom, supra note 80 at 1.

[188] Kahnawake Justice Commission, "Introduction", supra note 180.

[189] D. Dione/Karonhiahente, "Alternative Dispute Resolution: 'Planting Seeds of Peace' A Perspective by a Trained Facilitator", supra note 186.

[190] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 50 and 51.

[191] Ibid. at 51. According to Ron Skye of the Kahnawake Justice Commission, there are 35 members of the Kahnawake community that are trained in family group conferencing and mediation. Three of those community members are with the Kahnawake Justice Commission and these three persons are also on the ADR Working Group. (Personal correspondence, Ron Skye, supra note 5.)

[192] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 51.

[193] Ibid. at 50.

[194] Ibid.

[195] Ibid. at 51.

[196] Kahnawake Justice Commission, "Introduction", supra note 180.

[197] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 51.

[198] Ibid.

[199] D. Dione/Karonhiahente, "Alternative Dispute Resolution: 'Planting Seeds of Peace' A Perspective by a Trained Facilitator", supra note 186.

[200] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 51. Dale Dione is the current Alternative Justice Co-ordinator. The program consists of one full-time co-ordinator and extensive community volunteers trained to assist with restorative justice forums. Youth from the Kahnawake community are also asked to participate. The ADR office is located in the Courthouse of Kahnawake. (Ibid.)

[201] Ibid.

[202] The results showed that an alternative to the present adversarial system was needed but that the 'regular court' [s. 107 court] would still be needed." (Personal correspondence, Ron Skye, supra note 5) The section 107 court plays a key revenue generating role and would be of use to the community despite its limitations. My understanding is that both processes are needed pursuant to the community of Kahnawake's plans in relation to the Canada Kahnawake Relations process that lays the groundwork for negotiations between the federal government and the Mohawks of Kahnawake in a number of different areas including justice. Details concerning the proposed arrangement are outlined in the "Draft Umbrella Agreement With Respect To Canada/Kahnawake Intergovernmental Relations Act" dated January 17, 2001 that will form the basis for consultations by the parties. The document is available online at <http://www.kahnawake.com/ckr/default.htm> )

[203] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 50.

[204] Kahnawake Justice Commission, "Restorative Justice: One Form of Alternative Dispute Resolution", supra note 182.

[205] D. Dione/Karonhiahente, "Alternative Dispute Resolution: 'Planting Seeds of Peace' A Perspective by a Trained Facilitator", supra note 186.

[206] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 51.

[207] Dione, "Introduction", supra note 149..

[208] As mentioned earlier, for example, the co-ordinator of the Skenn:en A'onsonton initiative is herself a Longhouse member.

[209] An example of such a person is Dale Dione, the program's co-ordinator. This being said, however, there is support for the position that the hybridity/synthesis "of traditional Kanien'keha ('Mohawk') values with existing administrative structures" is essential to the "transition to independence." (Alfred, "Meaning of Self-Government", supra note 6 at 2). The Council fulfills its mandate as "community advocate, a defender of Mohawk rights and a protector of Mohawk jurisdiction from external interference" ( <http://www.kahnawake.com/council/chiefs/index.htm> ) through the provision of policies, programs, resource management and legislation in accordance with the principles of the Great Law of Peace (Kianerékowa). (Ibid.) The ideals and principles of the Great Law "bind council members and dictate their actions." (Ibid.)

[210] Alfred, "Meaning of Self-Government", supra note 6 at 1. Community support for this initiative is of particular importance given that a possible referral source, the section 107 Indian Act court, is a creature of the Mohawk Council of Kahnawake - the imposed governance structure/band council system. (Indian Act, R.S.C. 1985, c. I-5)

[211] P.A. Monture-Okanee, "Alternative Dispute Resolution", supra note 10 at 132. This was the case, for example, with A.R.A. Consultants in their report to the Aboriginal Justice Inquiry of Manitoba entitled, "Feasibility of Alternative Dispute Mechanisms for Aboriginal People in Manitoba." (A.R.A. Consultants and McMahon J., "Feasibility Study of Alternative Dispute Mechanisms for Aboriginal People in Manitoba. Manitoba Aboriginal Justice Inquiry, Research Papers, Vol. II (4)-(7) 1989-1991) In that Report, A.R.A. Consultants posited that
"since western society's version of mediation is highly consistent with the traditional practices of social control and justice of native populations, then the imposition of western society's version of mediation upon native communities will facilitate the reclaiming of native traditions." (Ibid.) (For a critique of the A.R.A,. Consultants position on this point please see S. Haslip, "A Consideration of the Value of Mediation in Relations between First Nations and Western Societies" (paper prepared for course 53-472 Sociology of Antagonism and Mediation Carleton University Summer 1992. [unpublished]) (copy on file with writer)

[212] Nielsen, supra note 24 at 247.

[213] P.A. Monture-Okanee, "Alternative Dispute Resolution: A Bridge to Aboriginal Experience?", supra note 10 at 132

[214] A similar program, Sken nen Kowa (Great Peace), established in Akwesasne following the Oka crisis, was vulnerable to federal government funding decisions. The Akwesasne Community, for example, introduced the program in 1990 and main purpose of the program was to "promote peace by creating a climate where individuals can resolve disputes using culturally based methods." (S. Starnes, "Mohawks stress healing in Akwesasne conflict resolution program" (Summer 1991) 3(2) Interaction 1-2 at 1 and 2) The basis of this program was the medicine wheel. (At 2) The impetus for this program were the 12 jurisdictions within Akwesasne territory and "deep divisions within the community following the Oka crisis." (Ibid.) The Community saw the need for a method of conflict resolution to assist in the healing process that used traditional methods. (Ibid.) The program obtained a one-year grant from the federal government. The funding, however, stopped after the first year "just as the program was becoming well known and gaining momentum." (Ibid.) Within the first year the program had handled a number of conflicts including schools, work, land, neighbours, families, parents and children. The program also handled referrals received from courts, social services and individuals. (Ibid.) See also M. Jackson, "In Search of the Pathways to Justice: Alternative Dispute Resolution in Aboriginal Communities" (1992) 147 U.B.C.L. Rev. 147-238 at 220.

[215] "Example of Restorative Justice, Planting the Seeds of Peace", supra note 6.

[216] "Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court", supra note 14. This is particularly the case when one considers that the section 107 Indian Act court already takes some burden off that provincial system

[217] Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, formerly the British North America Act, 1867.

[218] In Canada, legislative powers are distributed between the Parliament of Canada and the legislatures of the provinces (ss. 91 and 92 respectively, Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3, reprinted in R.S.C. 1985, App. II, No. 5, formerly the British North America Act, 1867. Parliament has jurisdiction over the criminal law including criminal law procedure but excluding the constitution of courts of criminal jurisdiction while provincial legislatures have responsibility for "[t]he [a]dministration of [j]ustice in the Province, including the [c]onstitution, [m]aintenance, and [o]rganization of Provincial Courts, both of [c]ivil and of [c]riminal [j]urisdiction, and including [p]rocedure in [c]ivil [m]atters in those Courts" (ss. 91(27) and 92(14) respectively). (emphasis added)

[219] Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court", supra note 14. A further argument that may be advanced by the federal and/or provincial governments (notwithstanding how illogical it may sound) that in the absence of quantifiable data to support the need for funding - there is no need for funding. This lack of data would be attributable to the fact that since the wrongdoing is resolved within the community it does not become the subject of an actual offence that can be diverted and therefore cannot be quantified. Depending upon the source of referrals to this system, however, the issue of quantifiable data may be more or less problematic.

[220] Ibid.

[221] Ibid.

[222] Ibid. It is acknowledged that the example used in relation to this quote concerned assault and that since assault would be considered a violent offence it would not qualify for referral to the Skenn:en A'onsonton program.

[223] Deom, supra note 80 at 16.

[224] Letter dated February 26, 1988, supra note 90.

[225] This is not to suggest that the matter was over at this point since the three youth were subject to other conditions (i.e., prohibition against driving). Please see Appendix 'A'' for specifics.

[226] See, for example, Kahnawake Justice Commission, "Restorative Justice: One Form of Alternative Dispute Resolution", supra note 182.

[227] Monture-Okanee, supra note 10 at 137-138.

[228] All three offenders, for example, received a first warning under the System of the Three Warnings. (Decision of Longhouse, supra note 86. See also David, supra note 86 at 17.

[229] Monture-Okanee, supra note 10 at 135.

[230] D. Dione/Karonhiahente, "Alternative Dispute Resolution: 'Planting Seeds of Peace' A Perspective by a Trained Facilitator", supra note 186.

[231] Monture-Okanee, supra note 10 at 135.

[232] Ibid.

[233] Ibid. at 135-136.

[234] Ibid. at 135.

[235] <http://www.kahnawake.com/justice/index.shtml> [236] In Saskatchewan, for example."prison has become for young native men, the promise of a just society which high school and college represent for the rest of us. (M. Jackson, "Locking Up Natives in Canada", supra note 22 at 216) Jackson writes that when this reality is placed in historical context "prison has become for many young native people the contemporary equivalent of what the Indian residential school represented for their parents." (Ibid.)

[237] George-Kanentiio, supra note 33 at 108.

[238] According to Chief Jacob E. Thomas (Teiohonwé:thon), Six Nations Elder and Cayuga Grand Chief (deceased), the interpretation of the Kianerékowa Great Law was the source of a considerable amount of confusion:
"[w]ell, that's where I think there's a lot of confusion for many people today. When the Great Law of Peace is told orally - as it should always be told - things change so much: It isn't the way it's recorded in this text. The first thing I ever tell people is how hard it is to reword to translate anything into English and still preserve the meanings that you have when it is said in the native language. Things get so condensed [in English], and some of it has a much different meaning." (Chief Jacob E. Thomas, as reported by Brian Wiles-Heape, Introduction: An Interview With Chief Jacob E. Thomas, Friday April 14th, 1989 in S. Newhouse, The Constitution of the Confederacy by the Peacemaker), supra note 49 at i) Pursuant to the 45th Wampum of the Great Law of Peace, "[i]t is necessary to recite the Great Laws of Peace every two years or less" however it is unclear whether or not this occurs in the Kahnawake community. (S. Newhouse, ibid. at 58 ) Johansen writes that Jake Thomas recited the Great Law of Peace every five years at the central council fire of the Confederacy at Onondaga, New York. (Johansen, supra note 36) According to Chief Jacob E. Thomas, the interpretation of the Great Law was the source of a considerable amount of confusion:
"[n]owadays, everybody is so confused. They will sit and argue about the Great Law, and cite 'Wampum Number Ten' or 'Wampum Number Twenty', and they have written it down and made it into a book for lawyers. But it was never ever numbered and argued like that. That takes away from it. So what I'm trying to say is how confused everybody is today, about the Great Laws of Peace and what it really means." (Chief Jacob E. Thomas, as reported by Wiles-Heape, Introduction: An Interview With Chief Jacob E. Thomas, Friday April 14th, 1989 in S. Newhouse, The Constitution of the Confederacy by the Peacemaker, supra note 49 at vi)
One consideration that may impact upon a discussion of the 'purity' of what is being recovered is the fact that the Great Law did not exist in a vacuum. The Kaienerekowa (Great Law of Peace), was only one of three traditional bases of social order amongst the Rotinoshonni. In addition to the Kaienerekowa there was the 'Handsome Lake Code'. The Handsome Lake Code was named after Seneca Chief Skaniatariio (Handsome Lake). George-Kanentiio writes that "[c]ontroversy surrounded his teaching during his lifetime and after his death in 1815." (George-Kanentiio, supra note 33 at 105.) This 'Code' consisted of a set of rules that "defined communal relationships and provide standards for ethical behaviour." In addition there was customary or common law that did not appear in codified form but was "handed down across the generations." (Ibid.)

[239] R.C. George, "The Indigenous Law of Aboriginal People: Restoring the Foundation of Justice" (paper submitted in final completion of LL.M. studies at the University of Ottawa, Faculty of Law, Common Law Section at 13. (copy on file with writer)

[240] The residential school system, for example, a product of the patriarchal Indian Act, has been described as "the Canadian government's most destructive and blatant tool of cultural genocide perpetrated against Aboriginal people in Canada's 125-year history". (Cariboo Tribal Council, "Faith Misplaced: Lasting Effects of Abuse in a First Nations Community" 8(2) Canadian Journal of Native Education as cited in Canadian Panel on Violence Against Women, Final Report of the Canadian Panel on Violence Against Women: Changing the Landscape: Ending Violence-Achieving Equality viz. a viz. Aboriginal Women (Ottawa: Ministry of Supply and Services Canada, 1993) at 154. See also J.R. Miller, Shingwauk's Vision: a history of residential schools in Canada (Toronto: University of Toronto Press, 1996). See also J.S. Milloy, A National Crime: The Canadian Government and the Residential School System, 1879 to 1986 (Winnipeg: University of Manitoba Press, 1999).Between 1867 and 1967 First Nations children were forcibly uprooted from their families, elders and communities in an effort to 'purify' these children for entry into mainstream society. (Hamilton and Sinclair, Aboriginal Justice Inquiry, supra note 1 at 478. Children were prevented from contacting their families for years and siblings attending the same school were prohibited from speaking to one another. 481 (Hamilton and Sinclair, Aboriginal Justice Inquiry, supra note 14 at 481)

[241] "Aboriginal Justice Systems - Relevant Canadian Experience: The History of the Indian Act Court", supra note 14.

[242] Alfred, "Meaning of Self-Government", supra note 6 at 2.

[243] Ibid. at 6.

[244] Letter dated February 26, 1988, supra note 90.

[245] Curtis Nelson, for example, of the Kahnawake Longhouse stated that "... we have a process and a custom that we do in the Longhouse when we name our children, when we marry our people in the Longhouse and when we bury our dead." (Mr. Nelson (Kanesatake Longhouse), Presentation by the Mohawk Trail Longhouse and the Kanesatake Longhouse, Mr. Patton (Mohawk Trail Longhouse) and Curtis Nelson (Kanesatake Longhouse), supra note 140 at 364)

[246] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 50.

[247] One effect of this is the emphasis on individualism versus collectivity. Chief Jacob E. Thomas, for example, stated:
"[s]o this is the way everything was balanced among the Iroquois people. Everybody had his own role, and they divided the work up among themselves, so that nobody did all the work, because that was the only was to get along and have unity. And they all helped one another. So I guess it was really nice in those days - more than today. Today it's so different. Now nobody wants to help others. Everybody's for himself. That's the way they're educated: The whiteman says, 'Now you be self-sufficient, you don't depend on anybody, just depend on yourself. And what you make is all your own. Don't share.' That's the way it is today." (Chief Jacob E. Thomas, as reported by Wiles-Heape, Introduction: An Interview With Chief Jacob E. Thomas, Friday April 14th, 1989 in S. Newhouse, The Constitution of the Confederacy by the Peacemaker, supra note 49 at v.)

[248] An effect of the role distortion resulting from a disruption of this egalitarian relationship is the abuse of women. As Rudin writes,
"Aboriginal justice projects have been under particular scrutiny by Aboriginal women. Although Aboriginal women see a potential for success in these projects, they also see a danger that offenders may be able to evade responsibility for offences such as family violence, spousal abuse, and sexual assault. These concerns are not simply theoretical. Some justice projects have failed because they were perceived to be re-victimizing women rather than working towards healing for victims." (Rudin, supra note 1 at 217)

[249] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 51.

[250] D. Dione/Karonhiahente, "Alternative Dispute Resolution: 'Planting Seeds of Peace' A Perspective by a Trained Facilitator", supra note 186. Alfred writes that
"[t]he central irony of Kahnawake lies in the important role the Mohawk people have played in the story of the most powerful symbolic Aboriginal alternative to Euro- American cultural and political dominance in North America. The Mohawks were central to the formation of the Iroquois Confederacy, an institution that presented Euro-Americans with such a formidable challenge on every level of interaction for such a long period of time. And yet it was the Mohawks, in their symbolic withdrawal from the centre of the Confederacy to Kahnawake, who were so pivotal in destroying its unity, which led in turn to the diminution of the Confederacy's military and political power. The ancestors of the Kahnawake Mohawks were an integral part of the Iroquois Confederacy and were, until the eighteenth century,
"firmly rooted ... in the culture and traditions of the Iroquois Confederacy." (Alfred, "Meaning of Self-Government", supra note 6 at 5)

[251] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 51. Another possible strength presented by this initiative is the possibility that it could work in conjunction with the Longhouse system. Since the National Council level is generally reserved for the more 'serious' offences given "[t]he somber procedure and careful deliberation of issues and resolutions" (as in the 1988 arson case) the Skenn:en A'onsonton process could fill the role of addressing conflict at the intra- and inter-clan levels while the National Council could be reserved for those matters deemed serious enough to warrant the holding of a more formal adjudication. (Deom, supra note 80 at 15)

[252] Alfred, Peace, Power, Righteousness, supra note 6 at xviii. Alfred writes that "[i]n the Rotinohshonni tradition, when the people have become confused, we are told to go symbolically 'back to the woods' and find ourselves again." (Ibid.)

[253] "Justice must be seen to be a process not a concept, and particularly not a concept that is once removed from the process of dispute resolution as it is currently known in Canadian law." (Monture-Okanee, "Roles and Responsibilities of Aboriginal Women", supra note 24 at 265)

[254] This phrase was used by Professor George when referring to the Inaaknigewin and the Ojibways of Kettle & Stony Point First Nation:
"[a]fter centuries of applying law and systems based on European principles that have clearly failed Aboriginal people, the answer appears obvious, change laws and systems to incorporate the principles and views of Aboriginal people. In so doing the Aboriginal community appears to have nothing to lose. For my part the pursuit of understanding the Inaaknigewin has just begun." (R.C. George, supra note 234 at 63. Professor George writes that 'Inaaknigewin' (pronounced in-knock-nih-gay-win) "is interpreted to men the rules or instructions for life." (as explained to Profession George by Douglas George and Robert George) (Ibid. at 8) The Skennn:en A'onsonton initiative may also encourage other Kanien'keha ('Mohawk') communities to do the same. Given the unique nature of First Peoples communities it would be imprudent to suggest this initiative as the model for other communities. To the extent that the Skenn:en A'onsonton process is inclusive and based on the traditional principles, however, it is a model worthy of consideration by other communities. (J.B. Litwak, "Mohawk community established innovative peacemaking center" (October 1991) 12 Consensus, reproduced by G.S. Trujillo on 28 Feb. 1992 for Native-L available online at <http://www.nativenet.uthscsa.edu/archive/n1/9202/0247.html> [255] George-Kanentiio, supra note 33 at 10.

[256] Ontario Federation of Indian Friendship Centres, Breaking the Cycle, supra note 30 at 50.

[257] See, for example, David, supra note 86 at 16-17.

[258] Ibid. at 16.

[259] Ibid.

[260] Letter dated 26 February 1988, supra note 90.

[261] Ibid.

[262] Decision of Longhouse, supra note 86. See also David, supra note 86 at 18.

[263] Decision of Longhouse, supra note 86. See also David, supra note 86 at 18.

[264] David, supra note 86 at 18.

[265] Decision of Longhouse, supra note 86. See also David, supra note 86 at 17.

[266] Signed statement of Allen Takawerente Delaronde, War chief Kahnawake dated April 5, 1988. (Copy on file with writer.)

[267] Decision of Longhouse, supra note 86. See also David, supra note 86 at 18.

[268] Copy of official receipt. See also David, supra note 86 at 18.

[269] Decision of Longhouse, supra note 86.

[270] Ibid.

[271] David, supra note 86 at 18.

[272] Ibid. Court file no 505-01-000983-888.

[273] Ibid.

[274] Ibid.

[275] Ibid.

[276] Ibid. at 19.