The Differences in Justice
By Charmaine White Face
Zumila Wobaga
This past winter, the United Nations’ Special Rapporteur of the Human Rights Council issued a call for inputs on the promotion of truth, justice, reparation, and guarantees of non-recurrence. The title of this call for inputs, “Financing of Reparations Owed to Victims of Serious Violations of Human Rights and Humanitarian Law,” states:
Within the framework of Human Rights Council resolution 45/10, the Special Rapporteur on the promotion of truth, justice, reparation and guarantees of non-recurrence, Fabian Salvioli, has decided to devote his report to the 78th session of the General Assembly, in October 2023, to examine the question of the financing of reparations owed to victims of serious violations of human rights and humanitarian law.[1]
The 1894 Sioux Nation Treaty Council (SNTC) responded to this call for inputs. The full response is currently online at www.siouxnationtreatycouncil.org. The idea of “financing… reparations owed to victims of serious violations of human rights and humanitarian law” by someone who also is mandated to seek “truth,” is absurd and points to the real issue of justice. Whose justice? Whose values determine that justice? Who will enact that justice?
Financing reparations of serious human rights violations is only based on a monetary system. However, there are many other kinds of reparations, including restitution. The United Nations’ Resolution (60/147) offers the following description, as one of their “Basic Principles”:
- Restitution should, whenever possible, restore the victim to the original situation before the gross violations of international human rights law or serious violations of international humanitarian law occurred. Restitution includes, as appropriate: restoration of liberty, enjoyment of human rights, identity, family life and citizenship, return to one’s place of residence, restoration of employment and return of property.[2]
The 1894 Sioux Nation Treaty Council, which seeks the full enforcement of the 1868 Fort Laramie Treaty, aligns with these “Basic Principles.” We should have been able to achieve our goal. Yet, these “Basic Principles and Guidelines” include a stipulation that states: “States should…” In other words, nation-states that are members of the United Nations (UN), such as the United States, “should” be the ones providing restitution and justice.
When a nation-state is the one committing these violations of international humanitarian law, without any overseer or enforcer, how can any victims expect restitution ─ let alone justice? As stated in the Stanford Encyclopedia of Philosophy, “The obligatory nature of justice generally goes hand-in-hand with enforceability.”[3] However, the UN does not provide any method to enforce the violation of a treaty made between a colonizing government and an Indigenous nation.
The Merriam-Webster Dictionary’s definition of “justice” is “the administration of what is just (as by assigning merited rewards or punishments).”[4] This is a very limited way of looking at “justice.” The Special Rapporteur’s call for inputs on the financing of reparations shows the UN’s intent. Without considering the input of ancient Indigenous cultures, the UN, and the world, are eliminating a lot of wisdom. It is no wonder that the UN only looks at “justice” in terms of financial rewards or punishments. That is what children understand, not the complexities of true justice that elders know.
The Great Sioux Nation is an ancient Indigenous nation located in the center of North America. The Sioux people are commonly called “Native American” or “American Indian” by the dominant Euro-American white society to distinguish the Sioux people from the Indians of India or the people from the West Indies.
The Indigenous name for the Great Sioux Nation is Oceti Sakowin (Seven Council Fires), which is a reference to the seven sub-nations that speak the same language, only with three differences. The differences are the letters N, D, and L. These subtle differences have caused Euro-Americans and others to call Sioux people Nakota, Dakota, or Lakota, when that word means “ally.”
We are not allies to ourselves, but are Ihanktonwan or Ihanktonwanna who speak with an “N,” or Sisitonwan, Wahpetonwan, Mdewakantonwan, or Wahpekute, who all speak with a “D.” The Tituwan are the westernmost sub-nation. They speak with an ‘L’ and were the last ones to fight the white invasion of, and occupation by, Euro-Americans.
All Indigenous nations in North and South America, at the time of first contact with the white colonizing settlers, were living according to Natural Law. The Oceti Sakowin lived in a geographic area that covered 24 American states and four Canadian provinces, according to the most recent work of Dr. Leo J. Omani from Saskatchewan, Canada. Because all lived according to Natural Law, there were many smaller nations also living in these same areas. The concept of territory was not like the Euro-American concept, nor were battles fought over territory. That was another concept of the colonizer. Instead, sedentary farming nations living along rivers grew crops and traded for meat and leather with nomadic hunter nations.
Dr. Omani’s first map showed only 14 American states and 2 ½ Canadian provinces. This map was the same as another produced by the United States Geological Survey (USGS) in 1911, which showed the Oceti Sakowin territory prior to l868. After viewing these maps, a white reporter at a 1999 gathering was asked a question about justice: “If this is about justice, which seven American states and which 1½ Canadian provinces would be returned to the Oceti Sakowin?” This was not a question of reward or punishment or even of economics. It was ─ is ─ a question of restitution. It is a question about morality, ethics, spirituality and keeping your word and honor.
These different definitions of justice are based on the different values of a people. Those who value the physical want justice only in the physical realm. However, people who are more spiritual will know that there is more to justice than just the physical. They will also understand the spiritual realm. Everything that is done, including the physical, whether good or bad, is never lost in the spiritual realm. So that when a harm or a beneficial act is done, there are consequences both physically and spiritually.
Justice is not merely the punishment or reward system of the white man. The Christian white man only values the physical and that which occurs in this lifetime. His beliefs only allow him to think that justice can be accomplished in this lifetime or it is done, finished.
The people of the Oceti Sakowin followed Natural Law. In Natural Law, there is cause and effect, and for every action there is an equal and opposite reaction. The white man knows these concepts as “the laws of physics,” but doesn’t think they have any relation to the “natural” world in which we live. They do whatever they wish with no thought of the consequences unless there are man-made laws. Even if that is the case, they don’t always follow the law. These man-made laws are not justice because they are based on the values of the lawmakers.
To jail a man, or execute him, because he has killed another man, is not justice. The punishment only adds more sorrow to the victim’s family and friends. What if the victim has a wife and kids? With the killer in jail, according to the current American system, he no longer sees the consequences or results of his action. He only knows that he is incarcerated with a group of men who have, or might have violated a man-made law. The victim’s wife will have to work more to support her family and cannot take care of her children as she needs to and as the children need. So, if she has three children, then four people suffer, while the killer is housed, fed, and doesn’t really know the consequences of his actions. Is this justice? The killer might have to pay restitution for a material thing, such as a vehicle that has been damaged, but who pays for all the damage, physically, emotionally, mentally, and even spiritually to the victim’s family? Is this justice?
If the old ways of the Oceti Sakowin were allowed, it would be an entirely different story. However, with colonization ─ and colonizers prejudging the people who wore leather and lived in environmentally friendly dwellings ─ came the American Major Crimes Act in 1885 (U.S. Statutes at Large, 23:385), which forbade the Ancient Laws of the Oceti Sakowin to be used or enforced (see Ancient Laws of the Oceti Sakowin at www.siouxnationtreatycouncil.org). This law was also a violation of the 1868 Fort Laramie Treaty, and Article VI of the U.S. Constitution, which states: “Treaties are the Supreme Law of the land.”
If the old laws of the Oceti Sakowin had been applied, the killer, in the aforementioned example, would have to be responsible and would have to complete all the responsibilities of the man he killed. The killer would have to provide food, clothing, shelter to his victim’s family. He would know the consequences of his actions for the rest of his life. This, from an Oceti Sakowin perspective, is justice.
Looking at the concept of justice from this perspective might cause many debates. The Ancient Laws were taught to children, not by rote learning and words, but by the children actually witnessing a killer taking care of the family of the man he killed. The killer would also be responsible for other obligations that were once his victim’s responsibility.
What if the victim had also been providing food and clothing for his elderly parents? Now this responsibility falls on the killer. What if the victim had belonged to a men’s society and had other duties? Now the killer has these responsibilities, in addition to fulfilling his own, personal responsibilities. The killer does not get off so easily for the violent action he took. It is not a matter of punishment, but a matter of a violation of Natural Law and the consequences of that violation. This is justice.
Another example of the differences between contemporary Euro-American and Native justice is that we have a spiritual connection to the land where we are located. The Native Hawaiians are spiritually connected to Hawaii; the Native Alaskans to Alaska; and the Oceti Sakowin to the Black Hills and the place where the stone for the pipes is located, as well as innumerable other sacred places spread across the Northern Great Plains to the Great Lakes and north to Alaska and Canada, and south in the central United States.
This spiritual connection is “foreign” to Euro-American people, as their connections to where they originated were eliminated thousands of years ago, mainly in Europe by the Roman conquest. Europeans and white American people can never understand the spiritual connections Natives have with the geographic area where Natives are located. Europeans and white American people do not have the intimate, spiritual, personal connection with Unci Ina Makoce (Mother and Grandmother Earth) that has been handed down for eons, not just a few hundred years, but eons.
The colonizing governments of the United States and Canada are barely 200 years old. Therefore, they can never understand why no amount of money can pay for a physical, geographical place, especially a sacred place like the Black Hills (United States v. Sioux Nation of Indians, 448 U.S. 371 (1980)).
The values of European and American white people are different from Native values. This is not including the values assimilated by Natives through forced colonization. Therefore, “justice” in the form of monetary settlements will never occur unless Natives fully assimilate into the white man’s values and way of life. To even consider only punishment or monetary settlements makes a travesty of justice. Justice is a thousand times more than those two things, both of which are only physical. Punishment and monetary settlements do not help either the perpetrator or the victim.
Another concept that Oceti Sakowin people understand is the “circle” ─ or in contemporary terms, “karma.” Oceti Sakowin people also believed in “reincarnation,” or another life that allows them to fulfill something that had been taken away at a young age. These beliefs are still taught to some of our children, despite being forced to assimilate to Christianity, and are also a part of justice. The Circle can eventually bring justice – whether in this lifetime or in another. Billions of other people around the world also stand firm with these same concepts.
For more than 200 years, the Oceti Sakowin have endured innumerable, grave injustices since the invasion by Euro-Americans. No, we were not “warrior” societies intent only on harassing settlers. We were fighting for our very survival. We were ancient civilizations who knew how to live with Mother Earth and all of her other children. We were, and still are, only trying to survive as best we can in a world and society whose values are based only on physical things.
We must continue to strive to be who we are as the Oceti Sakowin. We must continue to ignite our genetic memory to remember what true justice is. Until we are totally gone, exterminated, we owe our efforts to our ancestors, whose brilliance, spirituality, courage, and resilience allow us to be here today. Perhaps someday, if the climate crisis doesn’t totally extinguish everything, we can once again be the Nation the Creator made us to be. That would be true justice.
Ktso.
Notes
[1] Salviol, Fabian. “Call for Inputs: Financing of Reparations Owed to Victims of Serious Violations of Human Rights and Humanitarian Law.” United Nations Human Rights Special Procedures, March 2023. https://www.ohchr.org/sites/default/files/documents/issues/truth/cfi-min-legal-standards/cfi-min-legal-standards-questionnaire-financing-en.docx Accessed 13 June 2023.
[2] United Nations General Assembly. “Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.” Human Rights Instruments, www.ohchr.org/en/instruments-mechanisms/instruments/basic-principles-and-guidelines-right-remedy-and-reparation. Accessed 13 June 2023.
[3] Miller, David, “Justice,” The Stanford Encyclopedia of Philosophy (Fall 2021 Edition), Edward N. Zalta (ed.). https://plato.stanford.edu/archives/fall2021/entries/justice Accessed 13 June 2023.
[4] Merriam-Webster, s.v. “justice.” https://www.merriam-webster.com/dictionary/justice#:~:text=%3A%20the%20maintenance%20or%20administration%20of,of%20merited%20rewards%20or%20punishments Accessed 13 June 2023.
First Nations Development Institute (First Nations) is pleased to launch a new online series of essays that focuses on Native justice. With generous support from the Chan Zuckerberg Initiative (CZ/), First Nations invited multiple experts to discuss the root causes of Native injustice and highlight possible frameworks to move forward toward Native justice.