6 Decolonization and Restorative Justice

Title: Restorative Justice: Decolonizing the White-Washed Monster Within

Abstract

Indigenous peoples and minorities in settler colonial states constitute the majority of incarcerated people in Canada. In recent years, there has been a deep awakening as to why this over-representation of Indigenous peoples and minorities takes place in settler colonial criminal justice systems. Contemporary colonialism has been a recurring topic of interest in the quest to understand the incarceration rate of minorities and Indigenous peoples in colonial states. Monchalin (2016) defines contemporary colonialism as “a method of postmodern colonization in which domination is still based on settler rules and priorities but settlers calculate and perform more indirect or crafty ways of achieving their goals” (p. 74). Such indirect or devious methods have flooded restorative justice, polluting it. Restorative justice no longer aids in reducing the over-representation of minorities and Indigenous peoples in the criminal justice system of settler-colonial states, since the start of the copy and paste method of restorative justice. In fact, restorative justice may now contribute more harm because of its lack of cultural competence and top-down approach. This paper begins with an overview of decolonization then goes on to illustrate the impacts of colonization, and end the section in a discussion on three decolonial case studies of restorative justice practices: Maori Justice Practices in New Zealand, Pashtun Jirga in Pakistan, and Conflict Resolution and Visions of Haida in Canada. The paper concludes with a brief section on limitations of decolonization.

Keywords: Impacts of Colonization, Decolonization, Restorative Justice, Decolonizing Restorative Justice.

Introduction

Indigenous peoples and minorities do not have faith in the legitimacy of the systems, organizations, and actors in charge of and facilitating dispute resolution in colonial settler nations. This is why restorative justice was created. However, restorative justice has morphed into a process and practice that deviates from its origins and purpose, which was to give voice to the voiceless. Decolonization of restorative justice is important because it fixes the colonial power imbalances and acknowledges the monstrous biases and racism deeply embedded within restorative justice.

At the height of its murderous imperial scheming, the Europeans brutalized millions of Indigenous people (Burkhart, 2020, p. 62). The European colonization was characterized by such monstrous acts as cultural genocide and the simultaneous spread of white supremacist ideologies. According to Gahman (2016), European settlers and the system that arose from the colonization was a dehumanizing “monster”: “colonialism’s aggressive policy of land seizure and ethnic cleansing amplified, whilst also becoming highly gendered. This can be seen in images of Indigenous women who were represented as exotic Indian princesses or eroticized primitives living in the rural wild” (p. 328). The monster in restorative justice is why “settler colonial violence and territorial dispossession mark present worlds as an earlier, invasive species” (Carter & Carter, 2019, p. 5). In Canada, contemporary restorative justice emerged as a conflation of practices related to traditional Indigenous, and also Mennonite, conflict resolution practices but was transformed to fit our colonial-based criminal justice system. In other words, restorative justice has been consumed by the criminal justice system and spit out as a settler colonial tool that perpetuates further genocide and repression of Indigenous peoples and cultures.

Restorative justice was created to provide alternative measures to aid the failing age-old punitive approach. Restorative justice is a response to crime that takes the needs of victims, offenders and their communities into account. This approach eliminates most of the drawbacks of the punitive approach and is increasingly considered feasible for a diversity of types of crimes of various degrees of seriousness. While traditional approaches such as restorative justice aim specifically to create a system that works for Indigenous peoples, the programs are always delivered within the ideological confines of European institutions (Monchalin, 2016, p. 272). In other words, restorative justice has been colonized.

 

The Impact of Colonization

Colonization could be seen as a disease that now manifests more subtly as bias and cultural supremacy in Canada. The consequences of colonialism and the realities of genocide are clearly reflected in the atrocities carried out in residential schools and considered root causes of the social injustices that Indigenous peoples continue to face, and which constitute cultural genocide. Colonialism has embedded issues such as poverty and intolerance in the Canadian landscape. Unlike other Canadians, Aboriginal peoples, and other minority groups here, are prone to live in poverty. This poverty references not only unemployment or low income, but a general lack of accessible socio-economic opportunities. As Knutilla (2017) has pointed out, the theory of rational choice suggests that individuals are independent and capable of making appropriate decisions regarding their own self-interest. This rationale assumes everyone should be able to make good choices but completely ignores the impact of unjust socio-economic forces and exclusion on certain groups’ abilities to do so. At an ideological level, by blaming the victim, this rationale wrongly absolves the State from addressing issues of social inequalities and economic burdens that afflict Aboriginals (p. 33). Aboriginal youth are greatly impacted by conditions of poverty, and it makes them more likely to follow ways of crime. The oppression that leads to social inequality contributes to the growth of Aboriginal and Black youth incarceration under colonial systems.

As Palmater (2017) illustrates, the Community Well-Being Index (CWB) published by Indigenous and Northern Affairs Canada (INAC) reveals a considerable disparity – over a third – between First Nations and Canadians, with little to-no improvement since the turn of the century. The INAC discovered that these scores for First Nations and Inuit communities dropped even further between 2001 and 2006 (INAC as cited in Palmater, 2017). The United Nations, by way of comparison, maintains data on states of well-being known as the Human Development Index (HDI), with Canada ranking fourth best in the world in 2010. If the statistics took the circumstances of First Nations and Inuit communities into account, however, Canada would rank 78th, behind nations like Cuba and Paraguay (p. 65). This shows that the suffering of Indigenous Peoples of Canada is hidden in statistics and is ongoing. Canada is a wealthy country having 7% of the world’s renewable freshwater, yet its Indigenous communities have no clean drinking water and thus contract diseases eradicated from the general population.

Moreover, the colonization of Indigenous peoples is marked by discriminatory systems upheld by the Indian Act (1876) and by the Residential Schools, the last of which only closed its doors in 1996. These schools were created to eliminate Indigenous cultures. According to Aguiar and Halseth (2015), “By removing child-rearing from the community and placing it into the hands of the church and government, the residential schools contributed to the fracturing of family relationships and community cohesion” (p. 18). Colonialism has forced Indigenous peoples out of their way of life, deeming it as ‘inferior’ to the European settler ways. They did not only eradicate their way of living, but the Canadian government continues to create further harm by practicing tubal ligation surgeries on Indigenous women.

At the same time, the Indian Act (1876) established the goals of the European settlers to assimilate Indigenous peoples (Monchalin, 2016, p. 110). As McGuire (2019) has shown, the Haida people of the Pacific Northwest Coast had their own intricate governmental structures, including hereditary chiefs and matriarchs, as well as the potlatch, the predominant economic structure, prior to the imposition of Canadian legal and governmental systems (RCAP, 1996a, 1996b, 1996c). Acts of cultural genocide, such as the prohibitions under the Potlatch Law provisions of the Indian Act (1884), shattered traditional customs and ceremonies and transformed legal and social institutions (TRC, 2015, p. 2). That said, this disparagement of Indigenous cultures led to the oft-discussed intergenerational trauma and inequality.

The detrimental effects of colonialism did not vanish with the abolishment of residential schools and other overtly racist practices; rather, the disproportionate power the Canadian government yields over Indigenous peoples is still reflected in contemporary times. As described by Monchalin (2016), contemporary colonialism has manifested because “the legacies of earlier forms of colonialism become entrenched and embedded within society’s dominant discourses and institutions” (p. 74). The colonialism that exists within Canadian institutions has led to numerous injustices among Indigenous peoples and other minority groups, such as higher rates of incarceration, suicide, poverty, illness, and infant mortality (Palmater, 2017, p. 75). The issues that persist with the current state of colonialism are aggravated by a lack of recognition and accountability from the government. While Indigenous peoples and other marginalized groups face systemic discrimination and social injustice, the government continues to engage in what Palmater (2017) has described as “deny, deflect, and defer” (p. 76). The government either denies that the issues are severe enough to be addressed or deflects the issues back onto those who experience them by blaming them for their plight.

The health of the land has also been dramatically impacted by colonialism. As illustrated in “The Uranium Leaking from Port Radium and Rayrock Mines is Killing us” written by Richard Van Camp of the Dogrib Tłı̨chǫ writer of the Dene nation from Fort Smith, Northwest Territories, reiterates what Uranium has done to the Indigenous communities surrounding the mining area of Port Radium in the Northwest Territories. Van Camp speaks of razor-sharp grass, plants bearing no fruit, people starving due to the land’s inability to make food under all the pollution and radiation. Van Camp uses imagery to convey that animals and fish they once hunted are now dead or toxic: “It is a dead caribou running on dead legs. I meet its eyes but there are only antlers… The fish are rolling sideways” (2018, p. 619). In other words, colonialism is not a thing of the past; it persists and continues to be destructive to Indigenous peoples and other groups marginalized under the colonial ethos.

 

Defining Decolonization

To date, decolonization attempts, such as restorative justice, have acted as a veil, allowing the mainstream populations of colonial-settler countries to avoid facing the challenges that Indigenous sovereignty and socio-economic inclusion of minority groups would pose to classic conceptions of Canadian values and history, at least temporarily. As Shepard (2006) has shown, the Algerian journalist Henri Fonfrède coined “decolonization” in his 1836 text, Decolonization of Algiers, and social scientists have been using the term since the 1920s. For example, in the 1950s, it was used to criticize the French colonial regime, which initially colonized most of the world (as cited in Asadullah, 2021, p. 3). Moreover, decolonization takes two forms: macro and micro. Macro forms of decolonization aim to decolonize social institutions (political, educational, and family) while micro forms target people’s minds and behavior (Asadullah, 2021). Monture Angus (1999) defines decolonization as “a state of being free from responding to colonial forces, through the reclamation of Indigenous ways of being” (as cited in McGuire & Palys, 2020, p. 73). According to Palmater (2017), decolonization is a process involving resistance, resilience, and reclamation (as cited in McGuire & Palys, 2020, p. 72).

Also, Blagg (2017) indicates that the dual notion of reclamation and resistance derives from the erosion of the neoliberal pillars of the northern welfare state and its hegemonic consensus, culminating in accelerated casualization of the labor market, and the large inequalities between rich and poor. This creates the kinds of absolute destitution, unemployment, and chaos of existence once typical of early industrialism in mid-20th century Europe. Unsurprisingly, this erosion has caused the northern welfare state to see an increase in beggars and vagrants, homeless and unemployed, and the sick and mentally ill (p. 63). Therefore, macro decolonization is clearly needed and is the only solution left to save our social institutions and societies from collapse.

Furthermore, decolonization can help give self-determination back to Indigenous people and allow them to reconnect with their culture and ways of life. When Indigenous peoples were colonized, their culture and traditions were deemed as inferior by the colonizers. Western ideologies and sought to be imposed on Indigenous. The case with restorative justice and the criminal justice system is not any different — restorative justice is not representative of Indigenous traditions or peoples and therefore needs to be decolonized.

Both decolonization and resurgence facilitate a renewal of our roles and responsibilities as Indigenous peoples to the sustainable praxis of Indigenous livelihoods, food security, community governance, and relationships to the natural world and ceremonial life that enables the transmission of these cultural practices to future generations (Corntassel 2012, p. 97).

That said, Indigenous peoples need to be more involved in decisions that affect them. By restorative justice being decolonized, Indigenous peoples will have the opportunity to not only be involved on the ground-level of decision making but also at the top.

Corntassel (2012) highlights an important aspect of micro decolonization: “The decolonization process operates at multiple levels and necessitates moving from an awareness of being in struggle, to actively engaging in everyday practices of resurgence” (p. 89). This points out the importance of active participation in making changes. According to Monchalin (2016), the process of decolonization needs to take place among all citizens, not just among Indigenous peoples. While it is generally noted that Indigenous peoples need to be ‘decolonized’, non-Indigenous peoples need to ‘decolonize’ themselves by stopping to view their practices as superior to Indigenous’ practices and costumes (Monchalin, 2016, p. 297).

            Decolonization can take place in various forms, even through art. One exhibition, entitled the Indian Art Revisited, displays art pieces that “challenge colonialism and its impacts and realities” (Monchalin, 2016, p. 301). Music has also been serving as a way of raising awareness about colonialism. Music artists, such as A Tribe Called Red, have been creating platforms for conversations about decolonization (Monchalin, 2016, p. 300). After all, decolonization is about challenging colonial systems and the way they affect Indigenous peoples and other marginalized groups. Despite colonialism’s suppression of Indigenous people, traditional knowledge has been passed on through generations by elders’ teachings. The elders will form an integral part of the decolonization process in putting forward the solutions to the harm done by colonialism (Monchalin, 2016, p. 303). Furthermore, decolonization is about raising awareness, resisting, and acting towards righting the injustices that colonialism ingrains.

 

Decolonizing Restorative Justice

Asadullah (2021), notes that four must be admitted before restorative justice can be decolonized: “1) the colonial context of the criminal justice system, 2) the institutional power imbalance between justice stakeholders and Indigenous or other marginalized communities, 3) that government-led RJ may contribute more harm, and 4) the need for a trauma-informed approach”. In addition, also according to Asadullah (2021), the framework of decolonizing restorative justice is best expressed by a Decolonizing Tree consisting of four parts:1) roots, 2) trunk, 3) branches, 4) fruit (p. 18).

First, the root stands for a trauma-informed method and an anti-oppressive structure. Secondly, the trunk represents local communities. Thirdly, the branches stand for cultural competency and local teachings. Fourthly, the fruits stand for cognitively, politically, historically, and religiously appropriate (Asadullah, 2021, p. 19). For restorative justice to be decolonized, these steps must first be taken. It is not okay for restorative justice to encompass State views and a top-down approach. Communities must be brought together in the creation of a restorative justice practice that is culturally competent and shaped to the needs of their societies rather than by state-forced practices that are not culturally competent.

Decolonization aims to deconstruct the colonial ideology and value systems ingrained in social institutions and societies but also to thwart the colonial mentality that rears its ugly head within restorative justice. According to McGuire & Palys (2020), “Imposed systems of ‘self-governance’ that leave every change still requiring ministerial permission and fiscal control in the hands of the state further impede the potential for fundamental change” (p. 61). In other words, restorative justice is practiced under colonial systems, and therefore cannot be implemented to its full capacity. Moreover, Blagg (2017) claims that restorative justice cannot be implemented into the criminal justice system because the criminal justice system is still a colonial-based institute (p. 63).

Ever since Indigenous peoples were colonized, their cultures, beliefs, and way of life were perceived as inferior by the settlers. As a result of colonialism, the Western criminal justice system became widespread and the main scheme of punishment in different parts of the world, including Canada (McGuire & Palys, 2020, p. 67). As an alternative to the punitive approach, the Western criminal justice system incorporated restorative justice, classifying it as “an ‘Indigenous’ way of responding to justice issues” (McGuire & Palys, 2020, p. 67). However, restorative justice as presented by the Western criminal justice system, “ignores the diversity amongst Indigenous legal traditions and laws” (Friedland as cited in McGuire & Palys, 2020, p. 68). In addition, restorative justice has itself been colonized, operating within colonial institutions where hierarchy and lack of self-determination persist (McGuire & Palys, 2020).

A monster has come to reside in restorative justice, which means it has been infiltrated by colonial processes and is not sufficiently representative of Indigenous beliefs and values (Blagg, 2017). In fact, LaRocque describes restorative justice as a “reinvented Indigenous” tradition established from a colonial perspective (as cited in Monchalin, 2016, p. 284). Yet as Blagg (2017) suggests, “critical restorative justice, relevant to the needs of Indigenous and other colonised subjects, should be informed by the interconnected processes of what Walter Mignolo (2007; 2011) calls decoloniality and inter-culturality” (p. 62). Due to the indigenization of restorative justice, the State often assumes certain approaches that worked for one group will work for the other groups because they are ‘similar’. This homogenizing effect defeats the need of cultural relevance and appropriateness.

For example, the family group conference of the Maori in New Zealand was forced on the First Nations of Canada (Lee as cited in Tauri, 2005, p. 19). As Tauri (2005) pointed out, the State generalizes Indigenous cultures: “Family group conferencing is based on Maori culture, and the Maori are an indigenous people; Australian Aboriginal and Canadian First Nations are indigenous, therefore the forum must be appropriate for all Indigenes” (p. 20). Such an assumption leads to generalization of groups and creates further stereotypes. According to Tauri (2005), “It does so by enabling colonising societies to homogenise a range of disparate cultures by emphasising or overemphasizing similarities in cultural practice” (p. 19). Homogenization of cultures is harmful; it prevents the colonized from being self-determined and participating in processes that are culturally appropriate for them.

Consultation is another significant aspect of the decolonization of the colonial monster that resides within Canadian restorative justice. Apart from government agencies and policy workers, there must be consultation with the community. According to Tauri (2019), this can include “independent researchers, inmates, ex-inmates, inmates and ex-inmates’ families, victims and service providers” (p. 115). Consulting with elders is also pivotal in the process of decolonization, as elders “remain a great resource to their communities and are seen as a source of traditional cultural knowledge, wisdom, resilience, connectedness, and leadership” (Busija et al., 2020, p. 523). Formal participation by Elders in design and implementation of government programmes would ensure strategies that are culturally relevant and beneficial to Indigenous peoples (Busija et al., 2020, p. 523). That said, the consultation with Elders and other community members can enhance direct participation in important decision making.

Restorative justice is treated as a franchise being sold on people, rather than a practice that considers the needs of Indigenous peoples (p. 72). The notion that restorative justice is being marketed is clarified by Alfred (2009), who noted that “the culture of being colonized takes away a peoples’ ability to resist the racist aggression and political, economic and cultural pressures of the colonial state and settler society” (as cited in McGuire & Palys, p. 61). Therefore, the process of decolonizing restorative justice must start by challenging the colonial system. As stated by Blagg (2017), restorative justice is a modernist, Euro-American philosophy aimed at changing what is now largely a Western approach to justice reform (p. 63).

Povenelli (2002) highlights that the acknowledgement of cultural difference in restorative justice strategies is okay with the white justice system, as long as it does not ‘impose’ a progressive alterity that undermines white supremacy, particularly where land disputes are concerned (as cited in Blagg, 2017, p. 61). The only way to get the monster out and decolonize restorative justice is to acknowledge its roots and original purpose and methodology and eliminate the colonial biases related to Indigenous peoples and other marginalized groups. That said, a decolonized restorative justice would be based on inclusivity, rather than being a monstrous shadow lurking within the powerful institutions of colonialism.

Promising Decolonizing Practices

 

Maori Justice Practice in New Zealand

Prior to colonization, Maori justice processes in New Zealand were focused on collectivism not individualism. If a person committed an offence, they would need to compensate the victim and their families too (Tauri & Morris, 1997). “For example, the agreed outcome might have been the transfer of the offender’s goods to the victim or work by the offender for the victim” (Tauri & Morris, 1997, p. 150). Additionally, “The marae was the preferred setting, kaumatua were the primary decision makers (though working through tribal or Maori committees), and the restoration of communal harmony was the primary although not the only aim” (Tauri & Morris, 1997, p. 153).

The impact of colonization in New Zealand can be seen in the disproportionate incarceration rates of Maori. According to Tauri (2005), “Maori males comprised 10.9 percent of prisoners in 1930, increasing to 23.3 percent in 1958. Maori female prisoners increased from 4.7 percent to 47 percent of female prisoners over the same period (p. 3). Furthermore, Tauri (2019) notes the failures of crime control policies, with the example of Integrated Offender Management. One of the issues with IMO was its ‘orientalization’ of crime control policy (p. 108). Orientalization is a process that generalizes outcomes and fails to consider that different cases might require different approaches. Instead, the one-size-fits-all approach of the IMO assumed that what worked for Black Canadians, would also work for the Māori (p. 108).

 In addition, the effectiveness of crime control policies is exaggerated and, rather than focusing on the actual solution, the justice system is focused on control rather than rehabilitation (p. 112). The criminal justice system clearly does not engage communities and continues to “rely … on non-indigenous theorising and research on criminality to develop policies and programmes targeted at Maori/Indigenous offending” (Tauri, 2005, p. 9). Despite the ineffectiveness of crime control policies, they remain in existence. The notion of being ‘tough on crime’ gives the illusion of safety, but according to Tauri (2019), reduction in crime begins with addressing communities’ needs.

The benefits of decolonizing restorative justice are extolled by Tauri (2019), who claims that New Zealand’s criminal justice system has been unable to address the overrepresentation of Māori people in prisons. Analyzing existing policies and “develop[ing] a policy process based on the needs of [the] community, and one less concerned with the ballot box needs of politicians” (p. 113), would arguably help decrease incarceration rates. Tauri (2019) also highlights the need to focus on treatment and social support rather than relying on punitive measures.

Family group conferences are an example of how Maori practices can be integrated into mainstream processes. In 1989, family conferences were introduced in New Zealand, with families participating in a process of restoration and decision making (Tauri & Morris, 1997). The families reportedly found more opportunity for participation and effective communication with the conferences than in the courts (Tauri & Morris, 1997). Some claim that family conferencing “empowers Maori to deal with their youth offenders in culturally appropriate ways” (Maxwell & Morris as cited in Tauri & Morris, 1997, p. 14). Although the State still forms part of these conferences and the decision-making process, family conferences exemplify how Maori needs can be satisfied within New Zealand’s justice system (Tauri & Morris, 1997, p. 159).

Pashtun ‘Jirga’ and Conflict Resolution

Indigenous and local conflict resolution approaches were in practice long before colonialist approaches were introduced (Yousaf & FurrukhZad, 2020, p. 1203). The Pashtun Jirga has been historically embedded in the Pashtun culture in Pakistan and Afghanistan (Yousaf & FurrukhZad, 2020, p. 1201). The Jirga consists of tribal elders who “sit in a circle to decide matters ranging from inter- and intra-tribal disputes to matters of regional and national importance” (Gohar as cited in Yousaf & FurrukhZad, 2020, p. 1201). However, as stated by Yousaf and FurrukhZad (2020), “the major approach towards peace and conflict resolution employed by state elites remained the use of brute force to subjugate and control peripheral communities, while indigenous systems were either neglected or marginalised because of their perceived ‘backwardness’ and ‘incompatibility’ with the modern world” (p. 1202).

 In other words, colonialist systems exert power over others; they cast non-Western practices as inferior or underdeveloped. In a sense, this may also be owing to the settlers’ lack of awareness of different cultures, as they seem to insist that there is only one right way of resolving conflict (Yousaf & FurrukhZad, 2020, p. 1203). This lack of knowledge and understanding has also contributed to regional conflicts in Federally Administered Tribal Areas (FATA); Western approaches to conflict are not culturally appropriate as they are not specific and comprehensive in local contexts. The Jirgas (tribal councils) in the Pashtun culture evidence the importance of decolonizing restorative justice.

The role of Jirga in the Pashtun culture has been effective in countering military violence. During a conflict in Kurram, which “peaked with local and Afghan Sunni militants entering the region to join hands with local Sunni elders against the Shia population”, Jirga measures were practiced (Yousaf & FurrukhZad, 2020, p. 1209). Jirga cultural practices led to the Murree Accord, and despite violations from part of “the local Sunni Taliban militants” (Yousaf & FurrukhZad, 2020, p. 1210), conflicts in the region have decreased. As noted by Yousaf and FurrukhZad (2020), “when major efforts failed to establish peace in Kurram, a grand tribal Jirga was convened, involving all stakeholders, to reach a negotiated settlement on the issue” (p. 1210). Even though Jirga does not yield a final solution, the Kurram case demonstrates that Jirga can assist in mitigating conflict and violence by applying authentic cultural-based conflict resolution processes (Yousaf & FurrukhZad, 2020, p. 1211).

To achieve long-term peace, therefore, traditional structures and systems must be incorporated into dispute resolution and peace-building processes along with active participation at the local, culturally specific level (Yousaf & FurrukhZad, 2020, p. 1212). The Pashtun Jirga has great potential to address conflicts that Western approaches are not successfully able to counter. It is a colonial myth that European approaches are the only ways to address conflict and violence; as the case of the Pashtun Jirga demonstrates, cultural-informed practices have long offered optimal solutions for regional and national conflicts.

Haida Justice Practice in Canada

Another important case study that underlines a decolonized restorative justice practice looks at the vision of the Haida justice system (HJS). The Haida justice system (HJS) is an extension of the Haida people located in the archipelago of Haida Gwaii, which are islands 100 kilometres west of the northern coast of British Columbia. Furthermore, the HJS is a justice system that stems from Haida law, language, and Haida way of living. As stated by McGuire (2019), the Haida rule and justice has acted as a buffer against colonialism’s destructive effects (2019, p. 5). The destructive effects of colonialism on Indigenous ways of living cannot be underestimated; however, the Haida people have kept their cultural roots and teachings alive by passing them down in stories.

As McGuire (2019) explains, in some of the Haida stories and laws passed down, for example: yahguudang, ad kyanang kunGasda (to inquire first), the universe is as sharp as the edge of a knife (balance), everything depends on everything else, duty, and tll yahda (make right) (p. 7). Haida laws also have a different relation to crime and accountability than those of the Canadian criminal justice system. To illustrate, consider that the term tll yahda (make right) does not reference punishment by means of incarceration or even justice. Tll yahda only seeks to recognize and restore or make right the harm caused. It is flexible and fluid –restorative – unlike the criminal justice system. Furthermore, the Haida laws see crime as detrimental to their societies rather than an expected outcome.

For example, according to McGuire (2019), violations of Haida law were taken very seriously, and the consequences were far-reaching socially. “‘If you were a nephew and you misbehaved your uncle would have to die, and you would have to carry that with you’ (Sam). Maternal uncles and aunties played a key role in children’s lives and acted as second parents and mentors for children” (p. 7). The story illustrates the relationship that family and law share within the HJS and also the serious and far-reaching repercussions of crime. It underlines the importance of family and how harm not only affects the ’victim’ of crime but the entire family. The HJS differs from the existing criminal justice system because family and community play an integrated role, it is culturally relevant, and it aims for restoration.

This restoration can be understood in numerous ways. As McGuire (2019) notes, payment, apology and reciprocity were all ways in which restoration could occur (p. 10). Also, in severe cases such as sexual assault, men would be hoisted away from the community and women would take spruce branches and strike the men in the penis as their punishment (p. 8). This kind of punishment may be seen as inappropriate in the eyes of the criminal justice system but it is Haida law. This form of punishment is deemed culturally appropriate and allows Haida women to seek restoration in the form of teaching their aggressor a lesson. This has been considered effective because it gives Indigenous women the power to address their aggressors, seeking meaningful resolutions that allow for cultural self-determination which in return empowers the Haida community.

To sum up Haida law, or culture and justice within the framework of a decolonized restorative justice practice, one could say that using their own practices accords the Haida people the respect and dignity of self-determined governance. This decolonized restorative practice upholds the inherent rights and dignity of the Haida people since it recognizes their unique culture and laws as being neither above or below Canadian laws and customs. Furthermore, as argued by McGuire (2019), the Haida Justice System would replace the colonial mechanism of the criminal justice system responsible for centuries of harm (p. 3).

 

Limitations to Decolonization of Restorative Justice

Colonialism is still ingrained in the social institutions of settler-colonial States. In other words, restorative justice is created within and practiced under colonial systems, and therefore cannot be implemented to its full capacity. When Indigenous cultural approaches to crime operate within colonial structures, it could be argued that decolonization is not being fully achieved. As in the case of restorative justice, decolonization is under the control of the very Western institutions that were forged through its processes. For example, in family group conferences, the Maori may have enjoyed more opportunities for participation, but the conferences were formed and operated by the State. The Haida Justice practices illustrate a system that is separate from the Western justice system and advocates for self-determination. It is also noteworthy that other limitations can be found within traditional conflict resolution processes such as the Pashtun Jirga, which is critiqued as patriarchal and lacking female representation (Yousaf & FarrukhZad, 2020). Recognizing such limitations can assist in identifying possible ways of improving decolonization processes and succeed in getting the monster out of restorative justice.

 

Conclusion

Since the European ‘discovery’ of the new World, Indigenous peoples have been oppressed by colonial structures that aimed to eliminate the Indigenous way of life by forcing assimilation and implementing processes of genocide including cultural annihilation. Colonialism is known to be destructive and its negative impacts on Indigenous peoples have perpetuated the multiple social injustices of the colonial system, such as poverty, over incarceration, and destruction of land. Colonialist structures have characterized Indigenous practices as less effective or simply not important enough to fully implement. On the other hand, European approaches are the only ones considered worthy of inclusion (Yousaf & FurrukhZad, 2020). Restorative justice is often fathomed as a holistic Indigenous approach offering a much-needed alternative to the punitive Western criminal justice system. However, restorative justice has not been sufficiently representative of Indigenous peoples and their practices; rather, it has been romanticized and modified to fit colonial frameworks.

This homogenization of restorative justice fails to consider the cultural differences that exist between different Indigenous cultures (Tauri, 2005). Colonialists have created a generalized Westernized restorative justice paradigm by omitting the significant aspects of cultural relevancy and appropriateness. Also, celebration of ‘traditional Indigenous’ practices of conflict resolution through restorative justice within the criminal justice system creates a popular idea that Indigenous peoples’ needs are being considered when they clearly are not.

The process of decolonization highlights the importance of raising awareness around the impacts of colonialism (Monchalin, 2016). The cultural differences among Indigenous peoples must be recognized. Meaningful consultation with elders and other community members is vital and ensures that cultural appropriate methods are practiced (Busija et al., 2020). As demonstrated in the cases of the Maori of New Zealand, the Pashtun Jirga of Pakistan, and the Haida of Canada, the potential exists for including cultural practices within mainstream Western justice systems. To get the monster out of restorative justice, decolonization would also foster the full integration of Indigenous practices. This will afford self-determination to Indigenous peoples, while addressing other harms produced first by colonization and maintained through contemporary colonialism.

Discussion Questions

1)    Describe ways in which Asadullah’s decolonization tree framework that illustrates (trauma-informed method and an anti-oppressive structure, local communities, and cultural competency and local teachings) can be used to decolonize oneself since one must first decolonize themself?

2)    In your own view, which best enhances the decolonization of restorative justice, micro form, or macro forms decolonization?

Recommended Activities

1)    Watch Wilkinson’s, “How economic inequality harms societies” https://www.ted.com/talks/richard_wilkinson.

2)    Watch “Decolonization: Crash Course European History #43” and understand the rejection of European rule in colonies.

3)    Take Kathy Obear “But I am not racist quiz” and learn to identify different racist behaviours and attitudes. https://drkathyobear.com/racequiz/

Recommended Readings

Awoonor, Kofi. (1964). Rediscovery. All Poetry, https://allpoetry.com/poem/12180349-Rediscovery-by-Kofi-Awoonor

Boyer, Y., & Bartlett, J. (2017). External Review: Tubal Ligation in the Saskatoon Health Region: The Lived Experience of Aboriginal Women. Saskatoon Health Region. https://www.saskatoonhealthregion.ca/DocumentsInternal/Tubal_Ligation_intheSaskatoonHealthRegion_the_Lived_Experience_of_Aboriginal_Women_BoyerandBartlett_July_22_2017.pdf

Shore, Herbert L. (1965). Sombre Green Challenge: Notes on Art and Education in Modern Africa. Phylon, 26(4), 380-390.

Tauri, J., & Morris, A. (1997). Re-forming Justice: The Potential of Maori Processes. Australian & New Zealand journal of criminology, 30(2), 149-167.