Bringing past into present: Transitions, truth and reckoning with unmarked residential school graves

Bridging the gap with restorative justice responses to abuses in organisations: lessons from the Canadian Residential School’s transitional justice process Restorative justice and transitional justice are increasingly recognized as complementary approaches. While they have traditionally operated in different domains, restorative justice at the interpersonal and transitional justice in post-conflict or large-scale human rights violation contexts, their integration offers promising pathways for more holistic justice processes. This article contributes to the broader debate on their synergies by focusing specifically on the context of abuses in organisations. These abuses often reflect systemic and enduring patterns of harm that affect large numbers of victims, requiring justice responses that address not only micro-level interpersonal healing but also macro-level structural transformation. This makes it a particularly interesting context for examining how restorative and transitional justice can intersect. Using the Canadian case of residential schools as an example, the article explores how transitional justice practices and frameworks such as acknowledgement, truth-seeking, (symbolic) reparations, and guarantees of non-repetition, can deepen and extend restorative justice practices in institutional settings.

The recent flood of civil litigation suits filed against the federal government and four major Christian churches by former students of Canadian Native residential schools threatens to overwhelm the court system and bankrupt several of the Church organizations involved. Litigation has proved problematic as a mechanism through which to respond to the abuse and other harms experienced in, and by, the residential school system for all the parties involved. Dissatisfaction with the court process has led those involved to look to the mechanisms collected under the umbrella term ‘alternative dispute resolution’ (ADR) in order to find an alternative to litigation. This article suggests that an appropriate resolution to residential school claims cannot be found via the ADR mechanisms currently being suggested or utilized. These ADR mechanisms do not challenge those assumptions underlying the current tort litigation system that are most problematic as applied to the residential school situation. Specifically, they do not challenge the theory of justice animating the current tort law system. As a result, they cannot provide a meaningful alternative to litigation for the parties involved in the residential school cases. Instead, a genuine alternative to the current justice system requires a new lens through which to understand the nature of the conflicts and harms resulting from residential schools. Restorative justice offers just such a lens. In my previous work, I have developed a conceptual framework that views restorative justice as not simply alternative practice but, rather, a comprehensive theory of justice. I will draw upon this work to argue, in this article, that restorative justice provides a new lens through which to envision meaningful alternatives for dealing with the residential school situation in Canada. Grounding alternative dispute resolution mechanisms in this theory of justice would significantly alter their design, process, and purpose.

Proceedings of the 5th International Conference on Engaged Management Scholarship Baltimore, Maryland, September 10-13, 2015

Building upon previous research investigating discourses of legitimation informing restorative justice practices in educational contexts in Canada and the United Kingdom, the current study takes forward the same conceptual and analytic framework to engage a preliminary analysis of legitimation in the narrative of documents and testimonies found within the reports of the Truth and Reconciliation Commission of Canada (2015a, 2015b) or TRC. Shared philosophical principles emergent from Indigenous epistemologies are foundational to both restorative justice and truth and reconciliation proceedings and, accordingly, the current study drew upon insights from an original study epistemologically, analytically and methodologically (Clarysse & Moore, 2017). The conceptual framework guiding the analysis is shaped by van Leeuwen’s (2007) framework of four categories for analyzing processes that legitimate social practices in public communication, education, and everyday interaction. Findings indicate unrestricted and extensive use of legitimation within historical discourse related to the residential schooling system disclosed in Canada’s TRC. Subsequent current-day testimonies of the survivors of Canada’s residential schooling system and their ancestors articulate the lived experience and fallout from education related to this historical discourse legitimation. In contrast to text evidence from the Truth and Reconciliation Commission, a comparative analysis of text samples from contemporary restorative justice policy, law and practice documents found less pointed and more holistic application of discourses of legitimation to convey the merit of restorative justice practices in educational contexts. This study reinforces the important role of educational discourses in shaping critical awareness of discursive patterns of legitimation and the impact of these patterns of communication on notions of holism and community in educational contexts.

Introduction

Compensation for historic wrongs was once legally unthinkable. Now such claims are increasingly commonplace and count among law’s most difficult cases. This article tells the story of how historic wrongs became legal problems and seeks to provide the foundations for a more robust understanding of redress. To date, literature on historic injustice has tended to focus on threshold questions or on the relatively novel terrain of truth commissions, acknowledgement, and commemoration. The survivor’s quest for individual redress has, by contrast, garnered relatively little sustained attention even though such claims are among the most disruptive and challenging aspect of this ‘new’ problem of historic wrongs. This project aims to respond to that gap. It begins by seeking to better understand the problem, using three illustrative cases to help trace how historic wrongs came to be among law’s most vexing problems of responsibility. The UK decisions on the Mau Mau uprising highlight how claims that seek redress for historic wrongs often exhibit surprising force, capable of eroding the once-powerful procedural rules that used to protect the past from legal responsibility. Canada’s five-billion-dollar settlement of claims relating to the legacy of Indian residential school reminds us both of this force and of the challenges law faces when confronted by its own complicity in historic injustice. Finally, the US reparations for the slavery movement illuminates how, despite defeat in the courtroom, ‘reparative justice’ claims often possess a tenacious quality that makes them capable of moving powerful institutions. Tracing the role law has played in spurring the problem of the past helps to illuminate some of the key features of redress that have to date been all but ignored and provides the basis for developing more effective responses to historic wrongs.

The Problem of the Past: How Historic Wrongs became Legal Problems

Proceedings of the 4th International Conference on Engaged Management Scholarship

Amidst the current proliferation of new struggles and the continuation of protracted conflicts between long-warring enemies, reconciliation has become a pressing concern for many (Barkan, 2000; Brooks, 2000; Dwyer, 1999; Tavuchis, 1991; Torpey, 2001). For those partial to the discourses of conflict and alternative dispute the goal is one of imagining creative new options for peace that allow those locked in a seemingly intractable dispute to make the transition to a new relationship. The South African Truth and Reconciliation Commission (TRC), for example, has provided both hope and a model for addressing interethnic conflict, demonstrating that a society rife with crimes against humanity and political and economic oppression can begin to emerge from these conditions by reckoning with its unsavory past (Minow, 1998; Tutu, 1999). As well, dispute resolution techniques such as mediation and restorative justice have developed a new language of peacemaking intended to encourage parties to move away from their hardened positional views toward malleable that can be made amenable to the equally flexible interests of opposing parties (Bush and Folger, 1994; Fisher and Ury, 1991; McEvoy and Mika, 2002). At this reconciliatory historical juncture, which overlaps with (and is perhaps in part a reaction to) what has been referred to as the age of genocide (Alvarez, 2001 ; Power, 2002) these processes are held up as examples of the human capacity to construct creative visions of Yet, despite our best efforts to create processes that allow human creativity to flourish, the project of historical repair is often circumscribed by the pragmatics of the present. (1) Indeed, the prevailing economic and political rationalities of those in possession of various forms of social power often permeate reparative discussions, and this presents strategic challenges for those demanding moral reckoning or material redistribution in the face of historical injustices. Such is the case in modern-day British Columbia, where a process to negotiate treaties between the First Nations of the region and the provincial and federal governments is underway, guided by the dual goals ofjustice and certainty--that is, justice in terms of addressing First Nations long-standing land claims, and certainty in terms of the desire to create political and economic stability within the province. This article provides examples of how these two discourses are mobilized within the British Columbia Treaty Process, and examines the symbolic violence enacted by the non-Aboriginal governments in attempt to forward a rigid notion of certainty that limits the possibilities for justice. (2) Based on this examination, an exploration of what a transformative justice might look like is initiated and contrasted with the current trajectory of the treaty process, which appears headed toward what will be described as, borrowing from Nancy Fraser (1997), a remedy of affirmative repair. (3) The B.C. Treaty Process Unlike other parts of Canada, the majority of the land in British Columbia was not obtained through treaty settlements that mark the transfer of Aboriginal lands to the Crown. (4) Because of this, the spectre of Aboriginal title has haunted the provincial government's claim to jurisdiction over B.C.'s lands and resources. (5) In addition to the expropriation of their lands, First Nations in B.C. also faced the same assimilative policies that were imposed on Aboriginal peoples all across Canada: the residential schools that forced Aboriginal children from their homes and into institutions in which their culture was trained out of them (see Haig-Brown, 1988); the laws prohibiting Aboriginal cultural practices such as the potlatch that were perceived to be a threat to civilization (see Cole and Chaikin, 1990); and the laws preventing them from taking legal actions to pursue their land claims (see Mathias and Yabsley, 1991). …

Introduction, Jo-Anne M. Wemmers Part 1. The Victims 1. Healing Aspects of Reparations for Victims of Crimes against Humanity, Yael Danieli 2. Reparation and Recovery in the Aftermath of Widespread Violence, Christophe Herbert, Charlie Rioux and Jo-Anne M. Wemmers 3. Restoring Justice for Victims of Crimes against Humanity, Jo-Anne M. Wemmers Part 2. Victims and the Law 4. Reparative Justice at the International Criminal Court: Best practice or tokenism?, Mariana Goetz 5. It Doesn't Go Away with Time: Victims' need for reparation following crimes against humanity, Amissi M. Manirabona and Jo-Anne M. Wemmers 6. The Prosecute of Expel Dilemma in Far-Away Lands: Alternative universal justice for victims of international crimes, Fannie Lafontaine Part 3. Victims and Society 7. Framing Reparation Claims for Crimes against Humanity: A social-psychological perspective, Katherine Starzyk, Danielle Gaucher, Gregory Boese and Katelin Neufeld 8. The Healing and State? Residential schools and reparations in Canada, Andrew Woolford 9. Transitional Justice in Bosnia-Herzegovina: Understanding accountability, reparation and justice for victims, Nicholas A. Jones, Stephan Parmentier and Elmar G. M. Weitekamp 10. The Art of Acknowledgement: Re-imagining relationships in Northern Ireland, Jill Strauss Part 4. Collective Reparation and the Law 11. The Case for Collective Reparations before the International Criminal Court, Frederic Megret 12. Land, Wars and Restoring Justice for Victims, Gabriela Manrique Rueda 13. Reparations Through Different Lenses: The culture, rights and politics of healing and empowerment after mass atrocities, Hugo Van Der Merwe Part 5. Conclusion 14. The Healing Role of Reparation, Jo-Anne M. Wemmers.

This article is an extended invitation to readers to cut back the stories of separation, hierarchy, and supremacy that dominate Western society, in order to make room for other stories of who we are and who we can be. The author weaves her own stories of healing during the COVID-19 pandemic with critical insights from Asian American studies, history, restorative justice, Indigenous knowledge, anthropology, and animist and Buddhist frameworks. In so doing, the article illuminates the vital role Asian American racialization plays in upholding oppressive systems and begins to articulate a path toward untethering from it in order to make space for all of our truer selves to emerge.

Jennifer J. Llewellyn, Dealing with the Legacy of Native Residential School Abuse in Canada: Litigation, ADR, and Restorative Justice, The University of Toronto Law Journal, Vol. 52, No. 3 (Summer, 2002), pp. 253-300

References Cited

Three Comments on Anthropology and Science

American AnthropologistVolume 67, Issue 5 p. 1258-1277 Free Access Leslie Spier 1893–1961 Harry W. Basehart, Harry W. Basehart University of New Mexico, AlbuquerqueSearch for more papers by this authorW. W. Hill, W. W. Hill University of New Mexico, AlbuquerqueSearch for more papers by this author Harry W. Basehart, Harry W. Basehart University of New Mexico, AlbuquerqueSearch for more papers by this authorW. W. Hill, W. W. Hill University of New Mexico, AlbuquerqueSearch for more papers by this author First published: October 1965 https://doi.org/10.1525/aa.1965.67.5.02a00090Citations: 2AboutPDF ToolsExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL References Cited Dixon, Roland B. 1928 The building of cultures. New York, Charles Scribner's Sons. Bennett, John W. 1944 The development of ethnological theory as illustrated by studies of the Plains sun dance. American Anthropologist 46: 162– 181. Clements, Forrest 1931 Plains Indian tribal correlations with sun dance data. American Anthropologist 33: 216– 227. Driver, H. E. and A. L. Kroeber 1932 Quantitative expression of cultural relationships. University of California Publications in American Archaeology and Ethnology. Vol. 31. Forde, C. Daryll 1930 Review: Havasupai ethnography. American Anthropologist 32: 553– 556. Herskovits, Melville J. 1948 Man and his works: the science of cultural anthropology. New York, Alfred A. Knopf, Inc. Lowie, Robert H. 1920 Primitive society. New York, Boni and Liveright. Morgan, L. H. 1871 Systems of consanguinity and affinity of the human family. Smithsonian Contributions to Knowledge 17. Service, Elman 1947 Recent observations on Havasupai land tenure. Southwestern Journal of Anthropology 43: 360– 366. Spier, Leslie 1915 Blackfoot relationship terms. American Anthropologist 17: 581– 582. Spier, Leslie 1918 The Trenton Argillite Culture. Anthropological Papers, American Museum of Natural History 22: 167– 226. Spier, Leslie 1921 The sun dance of the Plains Indians: its development and diffusion. Anthropological Papers, American Museum of Natural History 16: 451– 527. Spier, Leslie 1922 A suggested origin for gentile organization. American Anthropologist 24: 487– 489. Spier, Leslie 1925 The distribution of kinship systems in North America. University of Washington Publications in Anthropology 1: 69– 88. Spier, Leslie 1928 Havasupai ethnography. Anthropological Papers, American Museum of Natural History 29: 81– 392. Spier, Leslie 1929a Review: The building of cultures. Roland B. Dixon. American Anthropologist 31: 140– 145. Spier, Leslie 1929b Problems arising from the cultural position of the Havasupai. American Anthropologist 31: 213– 222. Spier, Leslie 1930 Klamath ethnography. University of California Publications in American Archaeology and Ethnology 30: 1– 338. Spier, Leslie 1931 Historical interrelation of culture traits: Franz Boas' study of Tsimshian mythology. In Methods in social science, Stuart A. Rice, ed., Chicago, University of Chicago Press. Spier, Leslie 1933 Yuman tribes of the Gila river. Chicago, University of Chicago Press. Spier, Leslie 1935 The prophet dance of the northwest and its derivatives. General Series in Anthropology 1. Spier, Leslie 1936 Cultural relations of the Gila river and lower Colorado tribes. Yale University Publications in Anthropology 3: 1– 22. Spier, Leslie 1938 Preface. The Sinkaietk or southern Okanagon of Washington. Walter B. Cline and Others. General Series in Anthropology 6. Spier, Leslie 1954 Some aspects of the nature of culture. First annual research lecture, University of New Mexico 1– 21. Spier, Leslie 1959 Some central elements in the legacy. In The anthropology of Franz Boas, Walter Goldschmidt, ed. American Anthropological Association, Memoir 89: 148– 155. Wissler, Clark 1926 The relation of nature to man in aboriginal America. New York, Oxford University Press. Citing Literature Volume67, Issue5October 1965Pages 1258-1277 ReferencesRelatedInformation