NCJ Number
90564
Journal
Monash University Law Review Volume: 7 Dated: (June 1981) Pages: 250-325
Date Published
1981
Length
76 pages
Annotation
In comparing native justice in Australia, Canada, and the United States, this essay discusses how justice may be achieved in a multicultural society; the divergent historical, political, social, and legal contexts of the pursuit of justice in the three jurisdictions; the institutions that administer Federal, State, and indigenous legal systems; and the application of the substantive law, including the native law.
Abstract
The potential for achieving justice in a multicultural society is maximized if an ethnocentric stance is avoided, especially when dealing with radically different cultures. This requires considerable flexibility in the majority justice system and an ability by its administrators to view situations from a native perspective. Many of the justice systems in Australia, Canada, and the United States do not have these characteristics, so native injustice often results. 'Anglo-based' legal systems imposed on native communities and often controlled by nonnative bureaucracies have generally failed to achieve native justice. As cultural divergences increase, so too does the potential for native injustice; this is particularly true among Australia's traditional Aboriginals, the Inuit of the Northern Arctic, and the Pueblo Indians of New Mexico. For such groups, native justice is more likely to be achieved through maximizing the use of existing customary law ways and encouraging their development. In the cases of semiacculturated native populations, the focus should shift toward sensitizing and requiring flexibility of the majority legal system. Of the three countries, such flexibility is found mostly in the United States, where separate quasi-sovereign native justice systems have developed and Congress and the courts have shown some sensitivity to the native situation. As to government involvement in the administration of justice, a major difficulty, especially in Canada and Australia, is Federal and State tensions concerning the division of powers inherent in Federal systems of government. In the Federal and State spheres, only the United States has developed a major body of law concerned with indigenous citizens. A total of 378 footnotes are provided.