Access to Justice: the Indigenous Perspective

By Hannah Khaw, a political science and music major at Columbia University.

The term “justice” often brings to mind images of austere judges in their robes and eloquent lawyers with their clients, seated formally within stately courthouses. Such has been the influence of contemporary law upon our conception of what justice truly entails. However, can justice be pursued through channels other than the default ones that our modern society has conditioned us to accept? Numerous indigenous peoples’ groups all over the world seem to think so: for hundreds of years, justice has been meted out in these communities through indigenous courts and other tribal councils that are starkly different from the modern legal systems imposed on them in more recent times. With this in mind, then, states and international organizations such as the United Nations should arguably make provisions for indigenous peoples to have adequate access to justice not just in the conventional legal sense, but also within their own traditional contexts. However, the implementation of such provisions would understandably raise several practical questions for the states and international bodies concerned.

On one level, what would happen should the content or processes of indigenous justice systems diverge from those of the state’s legal system? The 1883 Ex Parte Crow Dog case in South Dakota provides a notable example of how tensions can arise between parallel—and often times, competing—justice systems. To summarize this case briefly, the Lakote tribe settled a murder case involving a Lakota individual named Crow Dog via traditional tribal means; however, the Territory of Dakota deemed the tribe’s punishment of restitution to be insufficient, overrode its decision, and sentenced Crow Dog to hanging instead. This is far being from an isolated case: indigenous law and tribal courts tend to be regarded as inferior to those of the mainstream legal system, and are therefore often not regarded as legitimate means of obtaining justice. However, such flippant treatment of indigenous justice systems is problematic especially in the light of Article 19 of the UN Declaration on the Rights of Indigenous Peoples, which stipulates that States need to “consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free, prior and informed consent”. This article affirms the legitimacy of indigenous peoples’ representative institutions, acknowledging that alongside regular courts, such institutions offer valid channels through which indigenous peoples may exercise their individual and collective rights to self-determination. With this in mind, states need to stop viewing indigenous justice systems as “soft” law, and rather take concrete steps to integrate said systems, as fully functioning, legitimate entities, into the larger legal landscape.

Encouragingly, a handful of states have begun to recognize the legitimacy of indigenous legal systems with some degree of success. In the Crow Dog case, for instance, the US Supreme Court eventually overturned the Territory of Dakota’s decision, ruling that “only an Indian government could punish an Indian for committing a crime against another Indian in Indian country”. Besides that, in the landmark Tsilhqot’in Nation vs British Columbia case of 2014, the Supreme Court of Canada ruled that contestations over Aboriginal title “must be approached from the common law perspective and the Aboriginal perspective”, and that the Aboriginal perspective entails “laws, practices, customs and traditions of the group” (as opposed to the individual-centric orientation of mainstream legal systems). As a whole, though, positive outcomes such as these have been few and far between—thus, in the larger scheme of things, most states still have a long way to go in terms of exerting sufficient political will in order to protect indigenous peoples’ access to their own forms of justice and law.

Moving beyond legal concerns at the state level, the issue of the recognition of indigenous justice systems also raises tensions at the international level—specifically in the context of international human rights norms that simultaneously support both individual rights and cultural affirmations of collectivity. Here, although individual rights and collective rights are very often mutually reinforcing, there are exceptional cases in which the two may be pitted against each other. For instance, what would happen in a case in which an indigenous court insists that the legal testimony of indigenous women is invalid? On one hand, Article 5 of the UNDRIP protects indigenous peoples’ rights to “maintain and strengthen their distinct political, legal, economic, social and cultural institutions” (which would include indigenous justice systems); however, on the other hand, such a practice would also arguably contravene the UN Convention on the Elimination of All Forms of Discrimination Against Women, which states that “[p]arties shall accord to women equality with men before the law”. This, then, raises the difficult question of which legal system should cede ground to the other if such a dilemma were to arise; or if at all possible, whether a balance can be struck between both legal perspectives.

With this in mind, the UNDRIP provides a human rights framework within which such potential conflicts may be solved. At the most basic, fundamental level, Article 46.2 of the UNDRIP states that

“[i]n the exercise of the rights enunciated in the present Declaration, human rights and fundamental freedoms of all shall be respected. The exercise of the rights set forth in this Declaration shall be subject only to such limitations as are determined by law and in accordance with international human rights obligations”.

Also, with reference to the earlier example of gender-based discrimination within certain indigenous cultural systems, the UNDRIP states in Article 44 that

“All the rights and freedoms recognized herein are equally guaranteed to male and female indigenous individuals”.

As a whole, these articles affirm that although the UNDRIP seeks, among other things, to protect indigenous peoples’ cultural rights as fully as possible, the Declaration cannot be used in ways that propagate violations of other international human rights norms and laws. It is “subject to… limitations” that necessitate the protection of human rights for all peoples—meaning that the protection of indigenous peoples’ human rights (whether cultural or otherwise) cannot come at the expense of any other group’s or individual’s fundamental human rights.

In conclusion, the mainstream justice system is arguably just a means to—and not the end of—justice itself. There are various other ways to effectively adjudicate legal cases, many of which do not necessarily entail the imposition of a colonial legal construct upon scores of indigenous peoples who have their own existing courts and tribunals. With this in mind, indigenous peoples should be given greater access to justice not just in a purely conventional sense, but also with respect to their own traditional legal contexts and practices. All of this—when done within the broader framework of international human rights—would bring indigenous peoples a step closer to actual, meaningful and efficacious access to justice.

Hannah Khaw is a political science and music major at Columbia University. Her particular interests concern issues of policy and advocacy for indigenous peoples in her home country, Malaysia.