Aboriginal Justice (and A Poem Arrowheads by Gerard Donnelly Smith)

It is often said that American Indians, indeed all Indigenous Peoples, are like the proverbial and overworked “Canary in the Mine” acting as a warning of dangerous conditions like carbon monoxide and carbon dioxide in the mine. The classic Indian Residential Schools of Canada and the U.S. were prototypes for the kinds and levels of indoctrination planned for the wider public schools for mass indoctrinations of the whole public to the agenda, vocabularies, paradigms and interests of the U.S. Imperium, the Canadian State and their respective socioeconomic systems.

One of my specialties the application of Nuremberg and related precedents to the residential school situation in Canada and the US. I’ve worked with UN-connected groups to conduct legal tribunals on genocide, applying the 1948 UN Convention on Genocide and human rights laws and statutes we’re all governed by. I also prepare our people who are victims for cross-examination and litigation in the courts.

Right now, survivors of the residential and Indian Boarding schools arelaunching a hundred lawsuits a month in Canada. One of the things I do isgo to our reserves. We have four reserves among the Blackfoot Nation – three in Alberta and one in Montana – with a lot of victims who want to tell this story. The title of this conference is The Past is Present. Indeed, the past is alive and well embedded in the present and shaping the future. A lot of the legacies you see today go back directly to the residential school system.

First of all, there are legal precedents that we can talk about. Most of the First Nations are, by all that defines a nation in international law, sovereign nations. Countries don’t make treaties with their own citizens, even bad and fraudulent treaties (Vienna Convention on Treaties Article 29). They only make treaties with sovereign nations and nation-states.

In fact, when signing a treaty, each nation is explicitly as well as tacitly recognizing not only the nationhood, sovereignty and co-equal status of the other, but each is also recognizing the system of government of the other that produced the leadership that had, or was assumed to have, the legal standing and authority to sign the treaty and thus legally bind its whole population to its terms for the specified term of the treaty.

The Blackfoot, for example, have possessed and still do possess: common territory, common culture and language, common history, common political institutions, common economic life and even common blood. Any nation has a right to its own laws, tribunals, code, moral codes, family structures. That’s part of being a sovereign nation.

The second thing is that we don’t need permission from anyone to act like nations. We’ve already been recognized as nations. That includes the right to apply our own laws within our jurisdictions. For example, one of the things that the chief prosecutor at Nuremberg noted was that they would be forever bound by the precedents they were going to set at Nuremberg. Interestingly, the US noted during the trials, that some of the crimes they were putting the Germans and their collaborators on trial for were crimes the US and Canada were guilty of – in the past as well as at the time they were conducting the trials.

One of the reasons the churches and Canadian government are talking so much about reconciliation and healing is they have more to fear from cross-examination than any victim has to fear. I’ve interviewed hundreds of Indian Residential School victims and all you have to do is look in their eyes to see that their stories or horrible atrocities are not being made up. Nobody could make this up. What you also find when you interview victims is generations of continuing abuse.

For instance, a family can have five generations in the residential schools, maybe three with the United Church and two with the Anglicans. You also find people from different bands who never met each other, who went at different periods through the same schools and who name the same abusers, describe being brutalized in the same ways, the same modus operandi. And there’s no possible nexus, no collaboration, no conspiracy to rig their testimony. Their stories corroborate each other.

This talk of a $345 million healing fund is a whitewash. It’s about keeping what happened off the record; about keeping it vague and generic. For instance, I’m not a Catholic, but it’s as if I said “Father, forgive me. It’s been two weeks since my last confession, but I don’t really want to get into the specifics of all my sins because we’d be here all day.

So for any sins I may have committed, am about to commit or that people may say I’ve committed, just give me blanket generic forgiveness and let’s get on with it.” I don’t think that would wash. But that is what they propose—generic and unspecified forgiveness for generic and unspecified crimes.

But that’s precisely what they’re proposing to do. They ask for generic forgiveness. And when you say what they’re asking forgiveness for, they say, “Get over it. We don’t need to dwell on the past. It’s morbid.” Or they will say:“You know the ’Our Father’ prayer – you can’t get forgiveness unless you’re willing to give it.” There’s a powerful lesson here. The reason they don’t want to get into specifics is because what went on, and is still going on, is genocide—no other word for it.

That word “genocide” has been misused and trivialized but we do have a definition that originated in the writings of Raphael Lemkin. It’s codified in Article 2 of the 1948 Convention on Genocide. That convention also codifies who can do a tribunal. Sovereign nations have a right to bring to trial in a competent jurisdiction those who committed crimes against the people of that nation.

By every law that lets Canada issue passports, call itself a nation, interact with other nations as a nation-state and  sit in the UN, the various First Nations are sovereign and have a right to their own governments, their own tribunals and to hold Canada and the U.S. to international law. And that’s the first order of business. It’s not rhetoric; it’s not hyperbole. It’s international law that applies to all without fear or favor.

The same thing applies to the religious bodies. If they want to reject this, they’re rejecting their own gospel. Their own gospel says that you don’t just ask for forgiveness. You have to make atonement; you have to make it right; you have to reach out. They don’t want it to come out that what they intended to do was not a mistake; it was conscious, organized and calculated genocide; forced assimilations and conversions pure and simple.

This stuff that they meant well, that they wanted to bring the gospel of Jesus to the savagesare pure lies. No, they didn’t mean well. They meant to destroy us. There’s nothing well-meaning about sexually molesting kids and beating them for speaking their languages, saying their traditional prayers or being left-handed.

They were not well-meaning. They never brought the message of Jesus to their own children by molesting them and beating them. It was only Indian children they did that to. There is no need to cover-up what is clean, only what is dirty. There is no need for Indian Residential Schools in isolated locales unless there is something to hide and something to keep the children from escaping from.

Now you know this Hollywood Indian caricature? The caricatures of Indians used bythe  Washington Redskins and the Kansas City Chiefs? This illiterate bucktoothed caricature of an Indian?

The Nazis used to make caricatures of Jews. The U.S. and its allies from WWII hanged a guy named Julius Streicher at Nuremberg. But he was never charged with actually killing someone. He was the editor of Der Sturmer, the Nazi racist and anti-Semitic propaganda rag. The formal charge against Streicher was helping to create a climate conducive to genocide; because ideas kill. He helped to create a climate that made dehumanizing and killing people easier to handle.

That’s exactly what they did at the Indian residential schools. By dehumanizing these people with racist caricatures, they make it easy to brutalize; easy for a “good Christian” to molest a child and not suffer the cognitive dissonance and suffer the angst, because it’s no longer like you’re molesting a real person. It’s only an Indian you’re molesting. It’s not like you’re killing a real person; “only an “Indian”.

Raphael Lemkin, who coined the word genocide, said that genocide involved two phases: The first phase of genocide is the “destruction of the national pattern of the oppressed group”. The second phase is “imposing the national pattern of the dominating group”. So the first phase is to strip the people down of their identity, self-worth, self-esteem, history,knowledge of themselves, ability to relate to each other and be comfortable with each other. Set them at each-others’ throats.

Make them competitors. The second phase is to impose a whole new value system on them. It’s notenough just to destroy the Indian ways. You’ve got to impose whole new ways. And that’s exactly what the residential schools did, just like in boot camp in the military.

The first phase – if you ask anybody who was in the schools – is to strip you down, dissociate you from any connection with your value system, your family, your religion. The first part is to make you feel totally worthless; so that anything you have is what they gave you; any self-worth came from them, not from you or your people or history.

And then after they’ve brutalized you and stripped you down, the second phase is to plant the new value system in you. So in the residential schools, the first part was to beat the children down – cut their hair, beat them for speaking native languages, for their rituals, any kind of spirituality.

First, you de-Indianize them – beat them down so they associate being Indian with being worthless, inferior, dirty, backward, illiterate. After that, comes the second phase: imposing the national pattern of the oppressing group. And what they do then is transplant a whole system of ideas. “Well, yes, you’re God’s child—but–the only way for you to have salvation is to forget where you came from, forget that Indian stuff.

We’ll never accept you as white but we’ll make you an honorary sort of white if you say the right things and you toe the line and you break with your people.” And not only break with them, but sell them out.

One of the things the British learned early, the US never learned. The British were artists at this. The British had what they called the DC system, the district commissioner system. They had a minimum of white faces dominating non-whites. Most of the domination would be through brown people dominating brown people; or brown people dominating black people; or just a little bit off-white dominating darker people.

The whites would stay in the background. There would be a few of them here and there but fewer than under the American versions of colonialism because when you have a lot of whites dominating non-whites, it’s pretty clear who the dominators are and who the dominated are. The US never learned that lesson and that’s one of the reasons they lost in Vietnam.

What they were also trying to do with the residential school system was to create a core of Indians who would serve their interests; functionaries who would sell out their own people. So you would have people of the same color controlling their own kind, and then, in the background, you’d have a few white faces who would be dropping in on the schools periodically to check the curriculum, molest a few children and head on back to Ottawa.

That’s how it worked. That’s why they don’t want the residential school issues brought to court except through their shrinks and their certified lawyers and their courts; because once they get under real cross-examination they’re afraid we’ll really go crazy.

You would see specifics and names: that a crown minister of justice is a pedophile; that a RCMP superintendent is covering up murders; that an esteemed cabinet minister from a liberal government is involved in molesting children.

You would start seeing what happened in the schools: so-called teachers who would force a child to eat her own feces or maggot-infested food; or pierce a child’s tongue; or use one child to bully another– to be an enforcer.

Anybody who has ever been even remotely touched by the Gospel could never do something like that. One reason the churches are so afraid is that the facts are coming out and they’re irrefutable. The facts say what those people did was no mistake, no accident, no product of “a different historic time when standards were’ different”.

People who ran Indian agencies didn’t let their own children be molested even in the 1800s and the 1900s.And we would be able to see that the present is the past, that the residential schools were just one part of a whole larger custody system, the trustee system, the Department of Indian Affairs/Bureau of Indian Affairs system, all of which have to be smashed; because look at what it has produced.

What has the trustee relationship produced in Canada and the U.S.? Are the suicide rates lower than twenty years ago? Are the substance abuse rates lower? Are there more people in the Indian nations and bands than twenty years ago, generally speaking? See what I mean? Is there more cohesion? Is the crime rate lower? No. All those rates have steadily gone up under the so-called trustee relationship between the federal government and the tribes in both the US and Canada.

So what good is it? What kind of trustees are these? What would happen to the trustees of acollege if enrollment steadily fell, the debts steadily mounted, the buildings fell apart, and the trustees were all going to Hawaii on college money? What would happen to the trustees of a college if the whole place went to hell on their watch? Well, that’s exactly what’s happened in Indian country in both Canada and the US. So what good is their trustee relationship?

Right now for example, what is happening with the BIA (Bureau of Indian Affairs) in the U.S? Over 6 billion dollars gone—missing without a trace. How many lives would that $6 billion save?. The records have been torched; and another 13 billion dollars or so in undervaluation of royalties; in other words, when they refuse to charge the oil companies the proper royalties that were owed to the tribes. And those lost dollars mean lost opportunities and lost lives when you look at the poverty on the reservations and reserves.

Where is that money? What kind of trustees are these? You know what they say? “Well, we’re sorry. We don’t have the records.” Where are they? “Well some of them were lost.” Where? “Well, we don’t know.” Some of them they say are buried under rat crap in Albuquerque, New Mexico and they can’t get them because of Hanta virus. I’m not making this up. Among African-Americans, there’s a parallel.

Right now in the US, one out of four African-Americans between 18 and 30 years old is in the prison system one way or another. They’re in prison or they’re on parole or probation. Among 22 industrialized nations, the US is “number one” alright. Using UN statistics out of 22 of the OECD countries, “Number One”: in wealth and income inequality; in infants born at low birth weight; suicide rates; substance addiction rates; homicide rate; teenage pregnancy rate; teenage abortion rate; divorce rate; infant mortality rate.

Now multiply those rates by five and up because the statistics for indigenous people show their respective rates are five times and up times the overall US and Canadian rates. In other words, the suicide rate for Indian children, for example, is five times the US rate and the US rate is number one among 22 industrialized countries.

The government  of Canada and the churches want to direct your attention away from this bigger picture and the media helps them. You’ve got to watch the mainstream media because they aren’t about the truth, either. Mainstream media is about sound-bites. I overheard a CBC reporter at the Vancouver tribunal on residential schools. Another reporter was asking her when she would be done and she said: “I just want to get some sex stuff for the six o’clock and then I’ll be gone.”

We have to develop our own alternative media. Dan Rather didn’t get to be Dan Rather by asking tough questions. He got to be Dan Rather by not asking tough questions. It’s like a child knowing what questions not to ask his parent. If you play the game right, knowing what nasty questions not to ask, you get access; and access gets you the scoop; and the scoop gets you exposure; and exposure gets you a name; and name brings expanded access to the even bigger scoop, leading to expanded exposure, leading to a bigger name…

We must stop looking for “respectability” in the mainstream institutions. And so what we also need to do is stop going to the same institutions that constructed, designed, calculated and carried out all this genocide; stop letting them be the courts to decide what will be admissible and what will not; what will be the fit punishment and what will not.

You want to go the Nazis and say “OK, you guys decide how you’re going to atone and you guys decide what the fit punishment is for an Eichmann.” When Israel kidnapped Eichmann and took him to Israel, did anybody complain about that?

As a matter of fact, when Eichmann played his part in genocide, there wasn’t even a Jewish state; but later Israel was accepted, rightly or wrongly as a competent jurisdiction to try him as mass murderer. They did their own “extraordinary rendition”took it on themselves to try and hang him and they took it on themselves because there was no court they could go to. So they were the victims trying the victimizer.

Did anybody say, “Oh, no. We need to have a dispassionate court. We need to have a court made up of non-Jews, non-gypsies, non-gays, non-trade unionists, non-communists, non-socialists and nondisabled—the targeted victims of the Nazis?”

In a true aboriginal court, we have five interrelated mandates that form a sacred hoop: Truth; Justice; Healing; Reconciliation; and Prevention of Future Abuse. And all five mandates help to form and protect a society in which the further search for truth is valued and promoted. So the mandates form a sacred hoop from Truth to Truth.

So we too must tell the truth in all ways and some of that truth is not pretty to hear. It would be nice if it were as simple as all Indians are pure and all white people are the devil. Then you just go off and kill all the white people and we’d have a pure world. Unfortunately, it’s not that simple.

My mother used to talk about Custer work. She said that: “any Indian who doesn’t keepthe sacred sacred; any Indian who doesn’t protect the children and respect the Elders; any Indian who does corruption of any kind is is doing Custer work.They are aiding and abetting the extermination of what they dare to claim as their ‘own blood’ and relations.”

And so there are some Indians doing “Custer Work”. There are some Indians who are corrupt. They put their relatives on tribal payrolls. They take the best homes for themselves while others live in homes with five times the radon levels for condemnation. Right now at Browning, Montana for example, we just had an Elder die and the tribe is so broke, itcan’t even bury an elder.

His body is sitting in a frozen locker un-embalmed because they couldn’t come up with $1500 to bury him. But they had just cut a big deal with two oil companies for mineral rights on 720,000 acres for less than $10 an acre while theAkaina Blackfoot were getting $5,000 an acre just across the border.

The people who did that are traitors. They’re the enemy, because without them the ones who want to grab the Indian lands, who want to de-Indianize the children couldn’t do what they do. Just like in Germany, where they had rich Jews selling out poor Jews. They had Jews who were kapos who were worse toward fellow Jews than some of the Nazis were. We’ve got the same thing in Indian country.

We have some Indians who need to get right with their notion of the Creator. They need to stop the corruption. Right now we have an 83-year-old elder and her daughter who were left on the street in Lethbridge a couple of weeks ago at five thirty at night with no concern for their safety because they refuse to have non-native plates on their car. And they refused DIA cards, driver’s licenses and passports. They have Blackfoot drivers’ licenses, plates and passports.

When we enter Canada, we just say “I’m Blackfoot.” Hundreds of us carry Blackfoot documents and some of us are enrolled, have been through “blood search”; but  would never carry a BIA/DIA card. We take the risk when we go through customs that it won’t be accepted.

And we do this not only because we don’t go along with the BIA/DIA’s so-called right to tell us who we are or are not, to decide we don’t exist as Indians,  we also do it as part of taking our co-opted and divided tribes back.

To take them back from how they’ve been smashed and divided so as to be destroyed as a whole nation. We regard allowing the BIA/DIA to define who and what a Blackfoot or an Indian is as exactly like a Jew would regard allowing a Nazi to define who and what a Jew is.

We have our own traditional societies that go back hundreds of years to decide such things – one’s called the Brave Dog Society. Let me give you a parallel. Among the parties who sat in judgment at Nuremberg, not one was the government officially recognized by the Nazi occupying powers. The Nazi puppet Vichy government didn’t sit in judgment. The Quisling government of Norway was the accused – it didn’t sit in judgment. When you have rotten tribal councils elected through corrupt mechanisms, why recognize them? That’s another thing that has to be done, to take the tribes back.

Further, while the non-indigenous talk about – and break – certain treaties, it was the traditional governments, summarily and illegally destroyed in 1924, that created any authority for those Blackfoot who signed or allegedly signed those treaties on behalf of all Blackfoot. If those traditional governments and chiefs are not recognized, then those who allegedly signed those treaties had no authority to do so, in which case the treaties are null and void and  non-Indians should get off our land immediately–according to the non-Indians’ own laws and principles governing ownership and control of property.

Right now, all four Blackfoot councils have no real popular support. The most they’re ever elected with is 20% of the votes. Not every tribal council is like that, but there are enough like that that you don’t have to recognize tribal councils as legitimate governments any more than the French recognized the Vichy government as the legitimate government of France. It was a collaborationist government . And we have the same problem in Indian country today with many of the so-called officials.

I’ll never carry their ID cards for the same reason that no French person in occupied France would carry a card saying “I’m certified by the Germans and the Vichy government as a real Frenchman instead of by those guys in London callingthemselves the provisional government of France.” Reject the BIA/DIA. Reject their tools.

It’s like the Nazis deciding who is a Jew. People bent on exterminating the Indians;why let them determine who and what an Indian is? We need to stop going to the system that has only been used to exterminate us – and the collaborators the system creates and needs – and go back to our own aboriginal justice systems.

We have the precedent, we have the law, we have the justice, and we have the right. When you see a real aboriginal court run the way it’s supposed to be run, it’s an invigorating process. Our tribunals are not about revenge, bashing the churches or whatever. We’re also using these tribunals to discover ourselves and our authentic past that was stripped away.

One of the things it allows us to do is to look at the curriculum in the boarding schools. We look at what they wanted us to unlearn, to take away, and that tells us something about what is really valuable. It’s like when you purposely let a thief out of jail to go find the stolen goods. He leads you directly to where they are. It’s a real discovery process.

And I promise you that the churches get more justice from us than they ever gave us. There is more respect for them and more justice for them than they ever gave us in their schools. Because we don’t want to become like them.

If we do a witch-hunt, if we become just a vigilante operation, we lose our own credibility and without our credibility, we have nothing. We bring our young ones in because our Elders are our link to what’s authentic. Our children are our only hope to carry it on.

And the present generations are our trustees to preserve what’s authentic. They all work together, so we need to train our young ones and bring them in. It helps them tap in not just to the pain and the problems but to discover and become committed to what their roots are and to see what can be and be created.

These tribunals are also important because we need the testimony before the people die. They are living museums. We need that knowledge. All the children need to sit down and understand what their parents went through. Not as an excuse, but as an explanation – there’s a difference but it’s important to learn the history.

The idea is that we should have reconciliation and healing, but the real thing.

We should also talk to each other and get comfortable with each other. This is where I think there’s some hope. It’s also important to do the homework. On an emotional, on a visceral level, the tribunals are talking about powerful things. The personal stories are critical, but it’s also important to do the homework, to do the research, and also for people who have computers to form networks and use the Internet to link up and start sharing resources with each other and also to open up dialogue.

But: no prevention of future abuse without reconciliation; no reconciliation without healing; no healing without justice; and no justice without truth. These mandates form a sacred hoop of interrelated mandates leading from truth to truth. What kind of “justice” can be had without first the full and complete truth of what offenses occurred and why?

What kind of real healing can go on without both truth and justice first? What kind of principled reconciliation can go on without first healing and as a predicate for it and what kind of real healing without both truth and justice? And what kind of climate could favor and encourage the search for truth without the mandates of truth, justice, healing, reconciliation and a commitment to stop future abuses? That is the logic of the “Sacred Wheel” of the Aboriginal Mandates of Law.

When injustice has been done, sometimes it’s emotionally satisfying to paint a whole institution with a broad brush, but there are some good people in all of these institutions and I think it’s really important to link up with some of these people and have dialogues.

Even in the churches, there are people who are trying to make these churches better. It’s not all a monolithic institution. I’ve had discussions for example with United Church of Christ clergy who are very troubled about their church’s position on various issues and there are some good Catholics and Lutherans around and so on who are worth linking up with. You have to be careful, see how far you can go with them. It’s important not to paint everyone from a certain institution an enemy, because they’re not.

We have enemies amongst our own people and we have friends in what some people call the enemy camp. It’s important to have those kinds of dialogues. And it’s also important to be respectful. Just as we want respect for Indian ways and native ways, we have to be respectful of what’s important to other people as well. It does no good to trash the whole Gospel because some people have misused it or defamed it and it’s important not to trash other peoples’ faith because their faith has been misused to oppress us. I think it puts us in their camp.

It’s important to differentiate between the Gospel and the misuse of the Gospel, and between how a particular church has been captured versus the whole institution and the people in it. It’s just like any nation; you can’t paint a whole nation by what one or two people inside it do.So we need make sure that we understand exactly what the issues are and to speak from a factual base.

Check your facts and recheck them. Once you lose your credibility, you can’t get it back. If you repeat rumors without checking them out, you lose your credibility. Sometimes you can check and still turn out to be wrong, but you have to make a good faith effort. And you have to tell the truth, even when it’s uncomfortable.

The notion that “all Indians are virtuous and all whites are the devil” takes you nowhere. It undermines the cause. People speaking for the cause have to be on top of the game because the cause will be judged by the spokespersons. It takes time and it takes energy to arrive at truth, but nothing less will serve any of us.


Prof. James Craven is one of the frequent contributors for The 4th Media. 



[Residential Schools] Aboriginal Justice written by James Craven // 11-1-2001
Published: Dark Night field notes #17 




A Poem by Mr. Gerard Donnelly Smith 





In plowed fields, we would find them, these remnants of  Wyandotte technology:

Small bird points, the longer, thinner game points, and the round-stone mallet.

Sometimes, the plow would strike a pestle or mortar, glance off a chip, or groove stone.

We, plowboys turned archeologist, furrowed through ages overturned,

Scoured corn, wheat and soy fields for trophies and trade artifacts, and fasten the past

Into shadow boxes, into display cases for the County Fair, blue ribbons for our efforts.


At Halloween, we’d dress like Plains Indians, feather headdress and buckskins, pretending

To be real Red-men would paint our faces yellow and green, and scream around

With plastic tomahawks menacing, with toy bows and plastic tipped arrows readied

To kill the woodland buffalo threatening to gore us with its wicked horns.

On Saturday mornings,  we’d watch the Lone-Ranger ride with Tonto and mimic

His broken English proudly, as if we understood his stoic acquiescence. 


In the depth of winter’s hand, we would wrap Pendleton blankets around our white bodies,

Play with plastic cowboys and Indians, recreating massacres we knew nothing about,

Imagine the plastic horses stampeding through downtown, upsetting apple barrels,

With noble savages shooting flaming arrows from beneath the horses’ bellies,  miraculously

Avoiding the blue-coat’s hail of gun-fire, avoiding  the buffalo soldiers’  dogged tracking

To get clean away to Mexico, where it was always summer, and never any mission school.


                                                            Gerard Donnelly Smith (Nov. 25th 2012)

0 Replies to “Aboriginal Justice (and A Poem Arrowheads by Gerard Donnelly Smith)”

  1. This is a very long article but worthwile reading. By far, the sharpest analysis I have ever read! Simply amazing.

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