Challenges to ADR Processes in Aboriginal Contexts Issues of Power
Throughout the Bell and Kahane text, several concepts such as power imbalances, cultural differences and language barriers along with theoretical concerns such as goodness of fit were critically analyzed vis-à-vis disputes involving Aboriginal people/parties. From this analysis several key questions and concerns are posed, most of which are relevant to all ADR processes whether Aboriginal or Western.
Issues of Power
The majority of chapters within the text make reference to the notion of power and its effect on dispute resolution. The text acknowledges that many power imbalances inherent to disputes involving Aboriginal people are firmly rooted in most Western ideologies and institutions. Power imbalances affect all levels of social interaction, from government and institutional relations to individual interactions. What varies however, is the visibility of the power differential. Understanding Western history with respect to issues of power and its development is just as informative as coming to understand how collective societies respect equally the autonomy of every individual member, regardless of, or rather, especially because of age, gender and certain abilities. 3
Kahane illustrates this power imbalance by critiquing the Western system, which actively excluded Aboriginals: "from Locke to Kant to Tocqueville, liberals have defined Aboriginal peoples as beyond the scope of liberal justice – too savage, insufficiently settled, unreasonable" (30). Behrendt makes a similar point in the Australian context whereby she contends that Australian law, while protecting non-Aboriginal Australians and their rights, has and is failing to protect the rights of Aboriginals. Behrendt acknowledges that this failure to protect is also due to "historic colonial legacy" (121).
Turner (2004) critiques the abuse of political power in the Canadian context by providing a construct for it, which he refers to as "Kymlicka’s constraint" (60). Kymlicka’s constraint refers to the process whereby Aboriginal people are forced to have their rights and voices heard within Canadian legal systems and in so doing must explain Aboriginal ways using Western political and legal discourse. He further contends that, "as long as this imperative characterizes the Aboriginal-newcomer legal and political dialogues, then Aboriginal peoples ’ ways of understanding the world remain of little or no importance" (57).
He acknowledges that one need not look too far to see that the differences in political power and Kymlicka’s constraint are a "brutal reality check for Aboriginal peoples" (60). As long as Canada unilaterally imposes its power over Aboriginal people, survival will demand that Aboriginal people engage in Western discourses and use the "language of the oppressor," whether in courtrooms or sitting at roundtable treaty negotiation tables (Turner, 2004:60). This constraint is difficult enough when Aboriginal people are aware of it; however, it is especially deleterious when awareness eludes either or both the Aboriginal and non-Aboriginal party to a dispute.
Another facet of power which plays an important role in conflict resolution is the degree to which Indigenous forums retain dependency upon the laws, systems and resources outside of, and often in contradiction to, the Aboriginal culture, community, traditions and laws. Many Aboriginal concepts of dispute resolution may operate outside of Western ADR values and mechanisms. As noted by several authors, as long as Aboriginal forums are restrained by laws not of their own, or are given jurisdiction by an authority other than their own, or are seen as being delegated by or "alternative" to, then these forums are simply another way of maintaining Aboriginal dependence and power imbalances firmly rooted in colonial legacy (see for examples chapters by Bell, Behrendt, Dewhurst, Kahane, and Yazzie). Thus, when operationalized, these issues of dependency raise questions of process, specifically who controls this process and who becomes its gatekeeper.
In such situations there may be a discord between the conceptual framework of conflict resolution within Aboriginal ideology and how conflict resolution is operationalized. Those Aboriginal methods of dispute resolution that are dependent upon government funding and/or non-Aboriginal agencies for jurisdiction have an additional challenge of meeting two often diametrically opposed sets of standards and requirements. The government funding and reporting requirements can be rigid and bureaucratic based upon quantifiable measurements while many Aboriginal methods of dispute resolution are characterized by their flexible processes, people-orientation, use of cyclical time, and more qualitative measurements in assessing the success of the conflict resolution process.
Aboriginal communities may be forced to change their circle in order to fit it into square bureaucratic requirements. The "strings" attached to government funding often force Aboriginal communities to do one of two things: either mirror and/or model Western forums and institutions, or administer justice (as a Western goal) through the use of Indigenous cultures (Lee 2005). This latter response may, when done carefully, be empowering and a means by which Aboriginal peoples express their self-determination. However, care must be expressed to avoid exploitation in order to meet government goals. As noted by Lee (2005:310), "the administration of justice through culture is an appropriation of culture that exploits Indigenous knowledge and spirituality in order to meet the government’s bureaucratic policy and goals." In terms of power differentials, either response is another way of maintaining Aboriginal dependence and furthering assimilative objectives.
Language Barriers
There are key differences between the English language and many Indigenous languages, which have a direct impact on how disputes are perceived, defined and resolved. The Aboriginal worldview(s) and culture(s) is best understood from within its own language; the challenge is that as a result of colonial policy, many Aboriginal people do not speak any language other than English. As there are two very different worldviews at play within dispute resolution processes, but often only one language (English) to describe these worldviews, the challenges become evident but not insurmountable. Later in this paper several worldview differences are expanded upon, but for now it is important to note that due to these differing worldviews, miscommunication and misunderstanding whether using one language or two is an ongoing challenge to ADR processes within Aboriginal contexts.
Within the text are several examples whereby the same term may mean different things to Aboriginal and non-Aboriginal people. The term "culture" and concepts of "land" can have entirely different meanings and this difference may apply equally to intracultural disputes as it does to intercultural disputes. As well there are many English concepts that may not exist within some Aboriginal languages, for example words for "lying" "punish" "blame" and to describe possessiveness such as "mine," "yours," "his," "hers" and even certain gender differences. Thus, assumptions cannot be made that everyone has the same understanding of any given concept when engaged in disputes, including intracultural disputes. Ensuring understanding of important concepts between parties to a dispute is integral to the dispute resolution process.
Language may also result in an increased power imbalance. There are several English terms and phrases which when used during ADR processes may affect its validity. Use of many common English writing styles and terms are inherently biased against Aboriginal people. A simple and common example would be the use of a lowercase "i" for Indigenous or "a" for Aboriginal, but use of capitalized European and Canadian. Seeing the words Aboriginal and Indigenous written with the lowercase while Canadian and European with the uppercase suggests that Aboriginal is not equal or deserving of the same respect. This may indirectly taint the dispute resolution process as the parties may not be viewed or treated as equals.
Other examples include the use of "mainstream," and "dominant society" in reference to Canadian society and the use of "alternative" in reference to Indigenous systems when Aboriginal people do not consider their own systems as alternative. These are all common examples of how language can be used to further entrench colonial relations. The terms "dominant" and "power" can mean very different things in Aboriginal cultures than in Western cultures. Many Aboriginal people may not think of a non-Aboriginal society or culture as "dominant" in comparison to their own. These English terms are strongly bound to the Western worldview where hierarchies and "power," as usually defined by materialistic standards, are the norm.
Hierarchies within Indigenous communities are commonly based upon levels of respect as opposed to the ability to oppress and control. To yield power, within many Indigenous worldviews can mean either internal personal power and/or can be tied to personal and collective spiritual power, which in turn respects the autonomy of others and contributes to the collectivity. Power and hierarchies, therefore, are often very different concepts within Aboriginal communities (see for example Alfred, 1999). They are based upon relations with others, a holistic view that respects difference in each individual’s ability to contribute to the whole. For example, with respect to the power of men and women, Marie Wilson of the the Gitskan Wet’suwet’en Tribal Councils explains:
…compare[s] the relationship between women and men to the eagle. An eagle soars to unbelievable heights and has tremendous power on two equal wings – one female, one male-carrying the body of life between them. Women and men are balanced parts of the whole, yet they are very different from each other and are not "equal" if equality is defined as being the same (as cited in Monture, 1995:224).
It is important that ADR practitioners are aware of these differences in concepts of power and hierarchies. The challenge lies in ensuring that the values and norms of the Aboriginal community be respected, especially when they may remain invisible to an "outsider."
LeBaron (2004) provides a description of power and leadership in the Euro-Canadian culture where leadership is characterized as: "zealously guard your status and reputation; constantly analyze resources and the opportunity structure; make others aware of their dependence upon you; create a web of relationships to support your power" (23). This is in contrast to characteristics of Aboriginal leadership described as the ability to "draw on your own personal resources as sources of power; value productivity, generosity, and non-materialistic resources; set an example; take the greatest risk needed for the good of the community; be modest and funny; minimize personality conflict and use humor to deflect anger; be aware of role models; take responsibility for educating others" (Alfred (Mohawk) as cited in LeBaron, 2004:23). Within an ADR process it cannot be assumed that an Indigenous leader will adhere to the latter definition; it may be the case that some Indian-Act-Chiefs have accepted and adopted the Western definition of power and leadership. Many Aboriginal leaders may possess both; and/or it may be that a Western dispute resolution process will highlight and draw upon qualities from the former list while Indigenous paradigms will draw from the qualities of the latter.
Lastly and most importantly, the use of Aboriginal languages and concepts is key to the successful resolution of disputes involving Aboriginal people, as only within these languages and concepts will their worldviews be adequately represented and respected. Learning what these concepts mean in English and ensuring accuracy within this translation could in fact be part of the "cross-cultural" training required. Both Ghostkeeper (2004) and Yazzie (2004) share examples by which their respective Aboriginal languages are not only used, but are considered integral to the dispute resolution process. For example, the Métis have taken the Cree concept Wechewehtowin, which means "partnershipping," and adapted it to describe a way in which "partnerships" (Weche) can be developed between Métis and non-Métis. This "partnership" is respectful of the differing epistemologies between Aboriginal wisdom and Western scientific knowledge (explained in further detail later).
The Cree term Wechewehtowin provides an example of an Aboriginal concept that does not necessarily exist in the Western world. According to Ghostkeeper, Wechewehtowin translates into English as "partnershipping " and this translation may relate to the differing worldviews. The English language is very noun focused whereas many Indigenous languages are verb driven, more "process-oriented" and descriptive (Little Bear, 2000:78). This difference in focus between the languages also reflects the differing notions of time and space (see for examples Little Bear,2000; Deloria, 2003). With many Indigenous worldviews, their languages reflect their concept of time as always being in motion, as opposed to linear time with a clear beginning and endpoint.
The term "partnershipping" implies a relationship and a "process" that is on-going and descriptive of something we are "doing." While the English term "partnership" describes a relationship, it specifically describes something we "are" as opposed to something we "do." While a subtle difference, it is worthy of note as many Aboriginal cultures put emphasis on the "process" as opposed to a static state.
The Navajo process, for instance, relies heavily on the use and understanding of key Navajo concepts to resolve disputes according to a Navajo worldview (see Yazzie, 2005). Yazzie (2005) acknowledges the difficulty in translating important Navajo concepts into the English language. For instance the Navajo concept of nalyeeh is an action verb which translates into English as "a demand to be made whole" and "a demand to enter into a respectful discussion of the hurt" (Yazzie, 2005:128). However, articles on Indigenous traditional law often use the translation of "restitution" or "reparation" which are nouns. K’e is another important Navajo concept to the dispute resolution process, and is difficult to translate into English. K’e is about the importance of relationships and describes the deeply embedded feeling that the Navajo have of their responsibilities to others and their duty to live in good relations (Yazzie, 2005:130).
Cultural Differences
While it is increasingly recognized and acknowledged that cultural differences are largely responsible for many of the shortcomings of formal dispute resolution processes within Aboriginal contexts, it is still largely undefined and unclear as to how exactly ADR processes, whether Aboriginal or Western, will overcome these cultural challenges. Several chapters in the Bell and Kahane’s text are extremely insightful and unabashed in asking pertinent and challenging questions (see for examples, Bell, Behrendt, Kahane, Napoleon and Yazzie). By so doing, the text lays important foundational work by providing mindful areas as well as shedding light on lessons learned from previous cultural interactions which resulted in further misunderstanding and cultural divide.
As mentioned several times throughout the text, Aboriginal paradigms are subject to similar cultural challenges due to the colonial impacts upon these cultures. There are language barriers that are further complicated because many Aboriginal communities do not "understand their traditional philosophies in their own languages" (Turner, 2004:65). This may impact adherence to their Aboriginal customs and laws on which they would base process design and implementation. However, this would now be by choice and not legal imposition. That is, Aboriginal communities are now able to revitalize and practice their Indigenous forms of dispute resolution, if they so choose.
There are impediments to this revitalization process referred to as "internal colonialism." The result of which is that Aboriginal communities may view their own traditional legal systems as inferior to those of the colonial powers (Bell, 2004:242) or, when finding that Indigenous systems are in contradiction to colonial ideology and policy, they may decide to abide by the latter or create divisions within the Aboriginal community (Napoleon, 2004:189) and adopt only those "aspects of [I]ndigenous knowledge, values, and processes that do not conflict with Western values and laws" (Bell, 2004:243). Should this be the case, it would naturally follow that the dispute resolution process in design and practice would also be subject to the same cultural challenges faced by formal Western and ADR processes.
There may be a rather large understanding of what "culture" means to Aboriginal people within Aboriginal interactions and contexts. However, this understanding may be quickly diluted or challenged in the context of "cross-cultural" interactions or intercultural disputes. Ghostkeeper, for example, states he has spent many years trying to interpret what is meant by the English word "culture" and has found that it is often equated with "cultivation," which means to disconnect and distance oneself from the land. Cultivation is something that is done separate from and outside of the self. In this sense "culture" is interpreted to mean that those most cultivated are those living the farthest from the land, something that directly contradicts his Métis teachings and worldview of close relations with the land. According to Ghostkeeper (Métis):
[S]ome of the Elders I work with do not use the word "culture" because they say it is not properly applied to Aboriginal people. We do not believe that we are separate from nature. Consequently, I even question if it is an appropriate concept to use in describing communications between Aboriginal and non-Aboriginal people or in trying to describe our worldview (173).
Similarly Ghostkeeper has stopped using the term "cross-cultural" as he does not know what this means. As an anthropologist, Ghostkeeper studied culture for many years and concludes that culture is something cultivated from nature and should not be applied to people, ideas and experiences (174). Cultivate denotes a separation which is in direct conflict with his teachings of being related to and be one with the land and the natural environment.
LeBaron (2004) notes that:
In much conflict resolution training, culture is treated as a distinct module or topic, without being fully integrated into all aspects of skill acquisition, process design, and implementation. It is conceptualized as something external that divides us, without recognition that culture is everywhere, including within us; it is a set of lenses through which we see all human interaction and information. When communication and process design skills are taught without reference to the cultural assumptions underlying them, processes are more likely to mirror bureaucratic, legal culture than the culture of any particular ethnocultural group. Non-dominant culture values may be pushed to the sidelines in the interests of efficiency, cost savings, and even the laudable goal of fairness (16).
According to Leroy Little Bear (Kainai):
Culture comprises a society’s philosophy about the nature of reality, the values that flow from this philosophy, and the social customs that embody these values. Any individual within a culture is going to have his or her own personal interpretation of the collective cultural code; however, the individual’s worldview has it roots in the culture- that is, in the society’s shared philosophy, values, and customs (2000:77).
Thus, the word "culture" may mean different things to different people. If the term is given its literal interpretation we may find it is not even applicable, as noted by Ghostkeeper. Or, if the term is used strictly within a Western worldview, it may be harshly undermined and misused, its importance clearly misunderstood and limited as in the example provided by LeBaron.
Lastly, Napoleon cautions against equating symptoms of powerlessness with Indigenous cultures: "culture cannot be confused with symptoms of poverty or dysfunction created by loss of power" (185). Additionally, the fact that Aboriginal cultures have been adversely impacted by colonial legislation needs to be considered and examined when developing ADR processes.
Of equal importance to the ADR and Indigenous dispute resolution process is "how" culture is included and perceived by the parties to the dispute. As noted by LeBaron, treating culture as a separate module or as one segment of the process is simply not enough. Whether an intercultural or an intracultural dispute, the culture(s) of the Indigenous party(s) needs to be fully integrated and in fact guide the entire process.
Cultural Exploitation
Cultural appropriation occurs when non-Indigenous processes incorporate Aboriginal elements such as Elders, spirituality, drumming, singing, sitting in circle and use of ceremony without the proper consultation and consent from the Aboriginal people from which these cultural teachings belong. Cultural exploitation, which may follow, is a challenge to both Indigenous and non-Indigenous people and occurs when culture is used for personal, economic, social or political gain. 4
Napoleon addresses the fear of cultural exploitation when she refers to "public drama and ceremony," whereby government officials participate in Aboriginal ceremonies but after which do very little, if anything, to change systemic issues of discrimination and oppression. Moreover, Government officials participating in public ceremonies, and social workers making use of an Elders’ Panel that is continually trumped by provincial legislation, has done very little to address the over-representation of Aboriginal children in the care of the ministry. 5
Aboriginal Women’s Voices
Indian people must wake up! They are asleep…Part of this waking up means replacing women to their rightful place in society. It’s been less than one hundred years that men lost touch with reality. There’s no power or medicine that has all force unless it’s balanced. The woman must be there also, but she has been left out! When we still had our culture, we had the balance. The women made ceremonies, and she was recognized as being united with the moon, the earth and all the forces on it. Men have taken over. Most feel threatened by holy women. They must stop and remember, remember the loving power of their grandmothers and mothers (Rose Auger, Cree Elder as cited in Voyageur, 2000:81).A final challenge that applies equally to Aboriginal and Western forms of ADR processes within Aboriginal contexts (whether inter- or intra- cultural) is to find the space and the place for the voices of Aboriginal women. Only two chapters in Intercultural Dispute Resolution in Aboriginal Contexts make specific reference to the dispute resolution process in relation to Aboriginal women (LeBaron, 2004:20;Yazzie, 2004:108). This under-representation of Indigenous women’s voices to such a crucial topic is problematic for many reasons considering that the overarching objective of ADR, whether Indigenous or non-Indigenous, is to increase effectiveness and participation. However, it is especially problematic for the deconstruction of colonial relations.
Prior to colonial legislation, women played powerful roles within Indigenous communities (See Absolon et. al, 1996; LaRocque, 1996; Monture, 1995; Sayers & MacDonald, 2001;Voyaguer, 2000). These roles were clearly established and recognized by all as being important to the well being of the community. As the advisors to men, teachers of children, cultural property owners, the givers of life, and the ones to decide who would lead their communities, Indigenous women held valued, empowering and important roles (Sayers & MacDonald, 2001:10). Today, Indigenous women still play powerful roles within their communities; however, these roles are not always recognized and often are not valued or are under-valued by community members.
Eurocentric and patriarchal legislation has adversely impacted the roles and responsibilities of Aboriginal women. Ensuring that Indigenous women’s voices are given space and place is crucial to any alternate or formal dispute resolution process involving Aboriginal people. This is no easy task as the powerful voices and roles of Indigenous women have been harshly impacted by colonial ideology and legislation, which downplays, disregards, or entirely ignores the role and power of woman. This is further complicated by a colonial habit whereby Aboriginal people begin to internalize eurocentric and patriarchal beliefs while conveniently forgetting or feigning ignorance of traditional teachings that directly contradict eurocentric and patriarchal beliefs.
While within ceremony, Aboriginal men may in fact treat women in the manner in which tradition dictates, which for most Indigenous nations is of respect and power as women are the givers of life which is one of, if not the most, sacred role. 6 Yet, these same men may quickly forget these teachings while sitting in boardrooms, conferences or otherwise engaged in processes outside of their communities.
Napoleon alludes to something very similar and refers to this divide as "cultural cognitive dissonance" which may lead to a "cultural paralysis" (188).
There is no doubt that the eurocentric and patriarchal values imposed upon Indigenous communities through legislation such as the Indian Act has had the most profound effect upon the identities, roles and responsibilities, and relationships of Aboriginal women. Any dispute resolution process that either directly or indirectly impacts Indigenous women must deconstruct, decentre and challenge these colonial ideologies.
In order to ensure respect and representation for Aboriginal women and their children, any ADR process, whether operating from within a Western or Indigenous paradigm, must take active steps to include the traditional 7 roles and responsibilities of the Aboriginal women. By seeking their active participation, women will have the opportunity to play leading roles in consultation, implementation and design of ADR systems. How Aboriginal women do this may look different in each community, but it is important that they themselves dictate the rules of participation.
3.The importance of individuality and how it is perceived by collective societies is often a difficult concept to explain to Western, liberal legal societies which tend to frame the argument as individual versus the collective. This framework may fit liberal ideology; however, from within collective Indigenous societies it is better conceptualized as the individual and the collective as the two are impossible to separate. The individual, however, does not become lost within the collectivity, quite the opposite (for further discussion on the individual within Indigenous collectivities see Little Bear (2000); Zion (2005:80-81).
4.Laenui (2000:152) describes the first of five phases of decolonization as “rediscovery and recovery” whereby Aboriginal people make deliberate and conscious effort to remember and abide by their cultural teachings; however, he explains how if not careful this phase may be mistaken for the final colonizing step of “transformation/exploitation” whereby those remnants of Aboriginal culture that have survived the colonizing process are then exploited and used for personal/social/political/economic gain without understanding of the teachings attached to the exploited culture. In other words, practicing culture by simply going through the motions but not understanding why – “form without substance.”
5.In B.C. up to 42% of the children in care are Aboriginal. A reconciliation ceremony under these circumstances may be perceived as acceptance for unacceptable circumstances especially if the ceremony is not used as one step of many in improving relations.
6. It should also be noted that even while in ceremony there is anecdotal evidence that Indigenous women have been disrespected and their roles misunderstood. One example would be the public humiliation of an Aboriginal woman in ceremony while she is her most powerful. Rather than explaining how this powerful time in a woman’s cycle can disrupt and even overpower the balance of the whole, women may be made to feel shame, alienation and exclusion due to what is a very sacred part of womanhood.
7.The term “traditional” is used here to mean “the ways of our ancestors,” which is especially relevant to contemporary relationship building.