Indigenous Courts Research Articles

Exploring the genesis & praxis of Restorative Justice in Alberta, Canada

ABSTRACT Alberta is located in Western Canada, and is bordered by British Columbia to the west, and Saskatchewan to the east. The province has a history of employing restorative justice practices that date back many years. Today, Alberta has many restorative justice platforms operating across the province. The present study sought to uncover the genesis of restorative justice in Alberta, and specifically, what has contributed to the growth of restorative justice in this province. To do this, we conducted a qualitative study, in which we interviewed 13 Key Informants from across Alberta. Responses to the question of what contributed to the growth of restorative justice in Alberta were coded and analyzed. The findings of this study are categorized into three major themes: Community, Justice System, and Government. Each of these themes explores several topics, such as community engagement and the push from grassroots organizations, the role of courts, RCMP, judges, and other leaders in the justice system, as well as government funding and programming. This presentation also explores the ‘restorativeness’ of specialized courts such as the Calgary Indigenous Court; a topic that is becoming especially important in recent years. This paper ends with limitations and areas for future research.

Children’s and Families’ Perspectives and Understanding of Children’s Court Criminal Processes and Consequences: A Scoping Review of Qualitative Grey Literature

This article presents findings from a scoping review of qualitative grey literature regarding children’s and families’ perspectives and understanding of Children’s Court criminal processes in which they are participants. Many children and families had difficulty understanding court proceedings, particularly formal and legal language, and fully appreciating the significant implications of decisions for their future lives. Professional support was often inconsistent and unreliable. One area where positive processes were experienced was in alternative courts, especially Indigenous courts. The findings support previous research and international law that recommends greater involvement of children and families in court processes to achieve fairer and better outcomes.

In support of free-standing Indigenous legal systems

Abstract US and Canadian approaches to tribal legal orders have taken different paths, and here I argue that the Canadian model should move towards free-standing Indigenous courts as they currently exist in the United States. The Canadian approach has focussed on the issue of over-incarceration of Indigenous prisoners, but even newer efforts have stopped short of recognising at least partial criminal and civil jurisdiction. The Canadian approach fails to support Indigenous jurisdiction and community rebuilding and leaves Indigenous peoples vulnerable to non-Indigenous judges, who fail to accommodate Indigenous approaches to justice. Early attempts at shared jurisdiction have been naïve regarding Indigenous internal social processes and the struggle over what constitutes proper cultural practices. My data come from my own work with Coast Salish tribes, where I have studied tribal histories and legal practices on both sides of the international border as well their views of federal policy in both Canada and the United States.

Specialised Indigenous divisions in Taiwan's high courts

Abstract This article incorporates judicial practice and related research to consider some of the shortcomings and issues relating to the goals of the specialised Indigenous court units. Specialised Indigenous court units, which have been in Taiwan's high courts since 2014, have lofty goals, but critical questions remain in terms of these expectations. Taiwan's high courts administer dozens of Indigenous cases annually, but few are related to Indigenous cultural issues. High court judges attend annual non-mandatory training programmes related to Indigenous people's issues; however, it is questionable whether judges are sufficiently knowledgeable in these fields. The toughest question many judges face is determining whether Indigenous practices are ‘facts’ or ‘customary laws’. If they are facts, then Indigenous defendants and their counsel must take the initiative to explain them; if they are customary laws, then judges must take the initiative to find and apply them. Other issues include how Indigenous cases are sometimes assigned to specialised military courts, a process in which defendants can lose their Indigenous status.

Courts of being and non-being

Abstract This article explores the challenges faced and practices developed by Taiwanese judges in cases involving Indigenous laws and lands to fulfil the objectives of Taiwan's Indigenous court units. Despite the official establishment of these units, local actors debated their real presences within Taiwan courts. Non-Indigenous actors administered proceedings, state laws and justice practices applied, the language of Han mainstream society dominated legal discourse, training for judges and prosecutors was minimal, and court unit proceedings generally replicated ordinary court procedures, rendering the units ambiguous as distinct institutions. While some judges ignored these ambiguities, other judges endeavoured to integrate Indigenous world views, ontologies and meanings into applications of new laws and procedures through varied strategies. In practice, these exploratory approaches constituted the Indigenous court units in Taiwan courts. While these strategies may, in certain circumstances, create possibilities for improving Indigenous recognition within the national court system, they could also work against Indigenous people in their bids for justice through the courts.

Legal Indigeneities: Identity, Authenticity, and Power in Taiwan’s Indigenous Courts

Abstract In this article I examine performances of Indigeneity in encounters between Indigenous people and the Taiwan legal system. Studying displays of Indigenous identities reveals the processes through which individuals and communities draw upon histories and practices to fashion themselves as Indigenous and engage with wider publics through performances and performative acts. Focusing on three encounters between Indigenous people and the Taiwan legal system, displays of Indigeneity in these encounters were multivalent and involved a repertoire of creative performative acts as Indigenous actors used court spaces, like the new ad hoc Chamber of Indigenous Courts, to perform identities that confounded essentialist conceptions of Indigeneity, introduced alternative ontological parameters, and assumed state governance responsibilities. These performances suggest a contextually situated engagement with the postcolonial state where Indigenous identities are anchored in the past and forward-looking, reinforce or challenge the category of Indigeneity, and themselves operate as techniques of power.

Security problems and afersata in Ethiopia: The case of Semen and Begemider Governorate-General (1941-1974)

ABSTRACT Academic literature gave less emphasis to the causes of insecurity of the society in Africa, and the role of the indigenous institutions to minimise the insecurity problems. Therefore, the purpose of this study was to examine the sources of insecurity and the roles of the afersata (indigenous communal court) in solving insecurity problems in Ethiopia focusing on the Semen and Begemider Governorate General. This Governorate General existed in Ethiopia from the periods 1941–1974 comprising various cultural groups within it. It included Amhara, Agaw, Kimant, Tigrie, Kunama, and Bete Israel groups. Qualitative methodology was employed for this research, in which archival sources available in the North Gondar Administrative Zone were significantly utilised. Besides, secondary and oral sources were thoroughly scrutinised. The finding shows that banditry, imposition of unfair taxes and fees, and mal-administration had threatened the security of human livelihood in Semen and Begemider Governorate General from the periods 1941–1974. Indigenous institutions such as Afersata played pivotal roles in minimising these security problems at least by identifying unknown offenders in the community.

Legal pluralism: an approach from the new latin american constitutionalism and the jury of the indigenous court

Through presented article we seek to analyze way Indigenous Peoples insert themselves in context of new Latin American constitutionalism, with a special focus on aspect of legal pluralism and on way Indigenous Peoples act towards Judiciary. For that, paradigmatic cases of Ecuadorian, Bolivian and also Brazilian constitutions are analyzed. From there, we go to concrete cases, where factual situations are verified, at least in theory, where natives had an active participation in judiciary criminal process in Brazil. The main goal of this article is to scrutinize how those cases configure what denominates as legal pluralism and in what standards Brazil differentiates from other Latin American countries on legal custody of indigenous rights and recognition and respect of the other, here understood as a native.

Contested Emotions: Adversarial Rituals in Non-Adversarial Justice Procedures

Non-adversarial justice theories and practices have developed in response to perceived failures of traditional western-style justice processes. However, we argue that while the operations of contemporary court processes might justly be criticised, the philosophical foundations of the common law can provide a framework for understanding nonadversarial justice procedures. Several key features of the adversarial system - lay participation in decision-making, confrontation and representation- are also at the core of many non-adversarial justice processes. This paper explores the ways that non-adversarial approaches, such as restorative justice conferences, indigenous courts and mental health tribunals, embody features of adversarialism in imaginative ways to create effective contemporary justice rituals.

A butterfly that thinks itself a bird: the identity of customary courts in Nigeria

Over the past 600 years, African states have been subjected to powerful influences of globalisation such as the slave trade, colonialism, transcultural exchange, and the law and development movement. These influences, which reflect in transplanted European laws masquerading as state laws, are steadily eroding the identity of indigenous African laws. So, to what extent do customary courts in Nigeria reflect indigenous law identity? This unexplored question is significant for scholarly and policy perceptions of legal pluralism in post-colonial states. These perceptions tend to favour conflict of laws, rather than the dialogue occurring between indigenous laws and state laws in intersectional social fields. Informed by case analysis, interviews, and archival searches, this article presents Nigerian customary courts as Anglicised courts pretending to be indigenous courts. It argues that customary courts illustrate indigenous law’s adaptation to socioeconomic changes. In exposing state laws as a key component of these changes, the article highlights the ways customary court actors engender behavioural changes that reveal the adaptive nature of normative interaction in post-colonial societies. It suggests that the adaptive interface of state laws and indigenous laws offers a theoretical platform for legal integration in sub-Saharan Africa.

Urban Indigenous Courts: Possibilities for Increasing Community Control Over Justice

The settler colonial justice system of the Canadian state continues to inflict immense harm on Indigenous people. One response to these harms could be the creation of urban Indigenous courts in line with the Truth and Reconciliation’s call for Indigenous justice systems that are expressions of self-determination. While any initiative that operates within the confines of the mainstream justice system has significant limitations, the practices of existing courts that avoid convictions, apply Indigenous legal principles, and cede genuine control to Indigenous people and communities demonstrate the potential for a meaningful break from the status quo. The creation of an urban court could facilitate a resurgence of Indigenous justice while mitigating the harm caused by the settler colonial justice system.

Rituals and spaces in innovative courts

ABSTRACTInnovative justice forums form a small but important part of the justice landscape in Australia and elsewhere. These include many civil and protective tribunals, local dispute centres, special purpose courts like drug or Indigenous courts, restorative justice conferences and – particularly relevant to this special issue –neighbourhood justice centres. Innovative forums like these are designed to be problem-solving: the focus is on achieving outcomes that resolve the underlying issues. While the substantive results of any legal process are obviously important, one of the most ‘innovative’ features of innovative forums is the way they carry out their tasks. This paper examines the rituals and spaces of three innovative forums, examining in detail one case study from each: a Koori court hearing in a suburban Melbourne court, a family group conference in a suburban house in Dunedin, and a youth court preliminary hearing in the chambers of a juge des enfants in Paris. A comparison of the three hearings allows us to analyse the way spaces are managed and furniture organised, how authority is symbolised, how opening, closing and transitional ceremonies are arranged, and what sort of subjects are produced in the process.

Indigenous Courts on the Territory of the KMAO-Yugra: Their Role and Importance

Indigenous Courts on the Territory of the KMAO-Yugra: Their Role and Importance

Courthouse Design Principles to Dignify Spaces for Indigenous Users: preliminary observations

Historically, Australian court architecture layout, design and details are intimately tied to the physical aspects of British imperial institutions. Displaying the visual features of the Empire’s institutions has the effect of alienating Indigenous people within courts. This is compounded by design that is oblivious to the needs of Indigenous users and consequently places these users in situations that threaten their privacy, safety and wellbeing. This article contends that architectural design that seeks to accommodate Indigenous cultural and socio- spatial needs brings into sharp relief the barriers and harms otherwise confronting Indigenous people in courts. This article discusses three court complexes designed in collaboration with Indigenous communities to accommodate Indigenous connections to the environment surrounding the courthouse and to enhance access to justice. Indigenous collaborations in the design of the Indigenous-inclusive court complexes at Port Augusta (South Australia), Kalgoorlie and Kununurra (Western Australia) produced spatially distinct courthouses that eschew some historical court design principles and attempt to introduce features relevant to local Indigenous nations. This illustration essay discusses the emergence of Indigenous design principles that may inform courthouse redesign, the application of some of these principles in new courthouse designs and the need for local Indigenous oversight in the design processes. It provides a framework for further research into how Indigenous architectural collaborations in courthouse designs may promote safer and fairer environments for Indigenous court users. It also raises some potential disjuncture between court design and use of court space that may undermine the vision embedded in cultural design principles.

Delivering Justice in Indigenous Sentencing Courts: What This Means for Judicial Officers, Elders, Community Representatives, and Indigenous Court Workers

Indigenous sentencing courts are now an established form of innovative justice practice in most Australian jurisdictions. Whether such processes, which involve the participation of local community elders or representatives in sentencing an offender, provide a “better” form of justice is still up for debate. Recidivism analyses have yet to find that these courts are more likely to reduce reoffending than their mainstream counterparts. Some scholars argue that this is not the sole purpose of the courts and that other measures of “success” should be utilised when evaluating their performance. This article uses interviews with judicial officers, elders, community representatives, and Indigenous and non-Indigenous court workers to explore what the courts are seeking to achieve and how that translates into a different form of doing justice.

Women’s Rights and Sovereignty/Autonomy

In recent years in both the United States and Latin America, indigenous peoples have taken increasing control over local justice, creating indigenous courts and asserting more autonomy in the administration of justice in their tribes, regions, or communities. New justice spaces, such as the Chickasaw District Courts in Oklahoma and the Zapatista Good Governance Councils in Chiapas, work to resolve conflict based largely on indigenous ‘customs and traditions.’ Many of the cases brought before these local legal bodies are domestic cases that directly involve issues of gender, women’s rights and culture. Yet the relationship between ‘indigenous traditions’ and women’s rights has been a fraught one. This forum article considers how these courts emerged in the context of neoliberalism and whether they provide new venues for indigenous women to pursue their rights and to challenge gendered social norms or practices that they find oppressive.

Evaluating the Performance of Indigenous Sentencing Courts

Critics argue that the very existence of Indigenous courts constitute an unacceptable legal dualism and a breach of the rule of law. This is refelcted in inappropriatelty shallow schemes for the assessment and evaluation of these courts. Efficiency and effectiveness are often conflated. This paper explores a range of techniques and contexts in which these specialist courts could be evaluated to give a more nuanced and realistic understanding of what they can and could achieve.

Royal accommodations: pilgrim rest houses in early colonial South India

PurposeThis article provides background on the historical development of royal hospitality in India before the advent of commercial hospitality in the twentieth century. The aim of the paper is to insert into the historiography of commercial hospitality the ancient Indian practice of endowing pilgrim rest houses, or chattrams (choultry) for the temporary housing and feeding of travelers, religious mendicants, and other groups in Indian society. As a case study, the article focuses on the chattrams of the Maratha Kings of Tanjavur (Tanjore) in South India, especially during the reign of Raja Serfoji II (r. 1798‐1832). Serfoji, working from the palette of past practices of his forebears, expanded these practices of traditional Hindu religious hospitality to include more progressive and inclusive charity, education and hospitality during the late eighteenth and early nineteenth centuries. Serfoji's munificent activities in his chattrams pose a challenge to any characterization that royal elites adapted historically dormant or static institutions to practical usage in the twentieth century.Design/methodology/approachThis article is based on archival research into the role of institution building in strategies of indigenous kingship in early colonial India. The primary methodology used is content and descriptive analyses of archival documents in the Tamil language related to chattrams constructed by the Maratha court of Tanjavur between 1739 and 1855 CE.FindingsThe archival data show that the Maratha court of Tanjavur, particularly under Raja Serfoji II (r. 1798‐1832), incorporated through the chattram institution a greater variety of social groups in its charitable mandate by expanding the traditional forms of pious and ceremonial hospitality of the court to include not only religious mendicants and pilgrims, but also students, staff and European guests as well. The article reveals the manner in which such practices could sustain aspects of the traditional relationship between ruler and subject while creating newly responsive forms of social outreach to wider constituencies by an indigenous court that had been reduced to titular status under the rise of the British East India Company after 1798.Originality/valueAs yet, there has been no systematic survey of the evolution of commercial hospitality in India, nor particularly one that includes the practice of charitable rest houses in pre‐modern India. This article focuses attention on the diversified social functions of these institutions in the early colonial period in south India, and introduces these institutions as a potential precedent of later forms of commercial hospitality.

To Dream the Impossible Dream? Therapeutic Jurisprudence in Mainstream Courts

In the 1980s Professor David Wexler and Professor Bruce Winick introduced the concept of therapeutic jurisprudence. Therapeutic jurisprudence explores how the law and legal process can result in either therapeutic or anti-therapeutic consequences for people. Therapeutic approaches have emerged in a range of jurisdictions. Therapeutic approaches are referred to as non-adversarial, problem solving or solution-focused approaches. They have been implemented in specialist or problem-solving courts including community courts, drug courts, mental health courts, indigenous courts and family violence courts. Specialist courts are characterised by legislative reform, specialist staff and judiciary, multi-disciplinary teams, tailor made processes and additional resources. While specialist courts are common in a range of countries, the majority of cases continue to be dealt with in mainstream court settings. Mainstream courts are often characterised by large caseloads, limited time, backlogs, scarce resources and generalist staff and judiciary. This paper proposes that given the proven effectiveness of therapeutic approaches they should not only be applied in specialist courts but also in mainstream courts where the vast majority of cases are heard. It suggests that it is possible for such approaches to be applied in mainstream settings in a number of ways. Approaches can be applied within the current court process and without the need for system changes or additional resources. Approaches can also be developed at a local level through reorganising and optimising the use of existing resources. The challenge then is to institutionalise and sustain therapeutic approaches across mainstream courts and over time. The paper explores what systemic changes are needed to support broader and deeper application of therapeutic jurisprudence in mainstream courts.

Indigenous Sentencing Courts and Partner Violence: What Happens to Gender Power Imbalances During the Sentence Hearing?

This paper goes some way in mapping and assessing the processes of Indigenous sentencing courts when dealing with family violence offences. In particular this research focuses on intimate partner violence (rather than other forms of family violence) since it is the most frequent form of family violence in Indigenous communities. Rates of intimate partner violence and intimate homicide in Indigenous communities are widely documented as being much higher than that in non-Indigenous communities, despite the fact that measuring these rates is not straightforward. The use of the courts for sentencing family violence offenders has been supported and encouraged by many of the key players and Elders involved with the courts. However, others, including key players and Elders involved with the Koori Courts in Victoria, consider the dynamics surrounding the offence of family violence to be too complex for consideration by the Elders which sit on the Indigenous sentencing courts. The presence of gendered power imbalances in a hearing concerning domestic and family violence is often identified as being a particularly problematic aspect of alternative justice processes. Victims who are present at hearings held in alternative justice forums often lack proper support to counter the risks of further abuse and control continuing during such hearings. The main focus of this paper is the extent to which gendered power imbalances are present in sentencing hearings conducted in Indigenous sentencing courts and how such power imbalances are addressed by the presence of Elders. The research specifically focuses on the courts in New South Wales and Queensland, and on the views of Magistrates, Elders, court workers and domestic violence support workers associated with those courts. Feminist critical race theories that have explored the complexities involved in responding to family violence in Indigenous communities, are used as the theoretical framework from which to consider whether the processes of the Indigenous sentencing courts are suitable for dealing with offenders and victims of intimate partner violence. In particular, emphasis will be placed on studies that have focused on critiquing the different types of court processes that are used for resolving matters involving family violence. The paper firstly describes the different processes of the Indigenous sentencing courts in Queensland and New South Wales. Next, it outlines what feminist and critical race scholars have said about using alternative justice forums to deal with family violence offences and whether these alternative justice forums are able to rectify any gender power imbalances which exist during the hearing itself. Finally, findings from an analysis of data collected from 39 interviews and eight observations of intimate partner violence sentencing hearings in the courts is presented to discuss whether the presence of Elders in Indigenous sentencing courts is able to provide a buffer for the victim against experiencing gendered harms during the hearing.