Problems and Purpose

The Community Decision Making Process (CDMP) is a transitionary measure developed by the Mohawk of Kahnawake (Kanienkehaka) in order to achieve self-government. It is a consensus-based law-making process that bridges traditional practices and the modern world. By integrating principles of respect for both individual thinking and unanimity in decision making used by their ancestors, the Mohawk of Kahnawake have created a form of participatory democracy that represents their capacity to adapt. The CDMP empowers community members to take part in the revision and creation of legislation along with other community leaders and stakeholders such that the products of the CDMP are formulated by the community, for the community.

The Kanienkehaka have resisted the institutional dominance of the Canadian government. They deny the legitimacy of the Indian Act, specifically the sections that relate to their jurisdiction in matters of legislation and enforcement. As such, the Mohawk Council of Kahnawake gave the Kahnawake Justice Commission the power to create laws for the people. However, when the community expressed discontent with their lack of involvement in the law-making process and expressed a desire to return to more traditional forms of governance, the Mohawk Council of Kahnawake mandated the development of a community decision making process. The grassroots process was developed with the community and holds their involvement at its core. It is consensus-based and integrates traditional principles with contemporary decision-making practices. Throughout its development and even through current iterations, the CDMP has significantly evolved, and continues to do so with the input of community members. The results of the process are the implementation of new and reviewed legislation that directly affects the community. However, those members intended to represent the community that take part in the decision-making process are self-selected and their capacity to speak for others is often scrutinized. Other critiques address the lengthy process and limited funding. As part of the path towards self-government and participatory innovation, the CDMP seeks evolve as it is shaped by community needs.

The Mohawks of Kahnawake are fighting to assert their rights against the institutional dominance of the Canadian government by seeking out forms of self-government. This battle is one that has been fought since the first presence of Euro-American empires on their land and continues today. The Kanienkehaka are critical of existing political structures because of their forced reliance on federal statutes for legitimacy. They explicitly deny the legitimacy of the Indian Act and have extended their jurisdiction beyond the parameters set by the federal policy. However, replacing these colonial institutions with indigenous structures is not entirely viable according to Kahente Horn-Miller. She argues that while these traditional practices were suitable for the community in the past, they need to be adapted to a contemporary context in order for self-government to be efficient and compatible with current needs.[1] As such, a synthesis between Mohawk values and existing administrative structures was created – the Community Decision Making Process.

Essentially, the process was developed in order to both respond to the community’s desire to return to more traditional forms of governing, to include community members in law making, and to separate interpretation from enforcement. The CDMP addresses the community’s desire for self-government and is thus a form of emancipation from colonial political structures towards a practice that integrates traditional democratic principles. It is important to note however that the Kanienkehaka view the CDMP as part of a transition towards self-government, where they would assume control of all community institutions. At this point however, total sovereignty is not realistic and as such, the Kanienkehaka are open to cooperation with Canada in their transition to self-government. This cooperation is a choice since, as Gerald R. Alfred puts it, “the freedom to make associations that are in their interest is an essential element of self-government.”[2] 

Background History and Context

Kahnawake is a Mohawk community of around 7000 people located about 15km south of Montreal. The Mohawks of the region have historically always been distinct; the nation has sought independence from both the Iroquois Confederacy, its Native political organization, and the Euro-American colonial presence. This independence is still characteristic of the nation and has greatly influenced its current political structure and the development of the CDMP. While originally governed by a council of seven chiefs – representing the different community clans – in the late 19th century Canadian authorities imposed a band council system of governance. With this system, the new Mohawk Council of Kahnawake’s legislative authority was very limited; it was both federally created and imposed, and the community was expected to handle enforcement. Sections 81 and 82 of the Indian Act gave some local autonomy to Indian bands regarding bylaws and their enactment, however the final word still rested with the Minister of Indian Affairs. 

Beginning in the mid-20th century, Kahnawake started taking justice back into its own hands while looking to the community for strength and legitimacy. There was a rise of militancy, a rebirth of traditional trade economies, and a recommitment to self-government. The Kanienkehaka created their own court system and in 1979 started approving bylaws created under Section 82 of the Indian Act, thus taking power back from Canada. A little less than a decade later, their judicial autonomy was reinforced with the implementation of a Justice System and Committee and a refusal to submit bylaws to the Minister of Indian Affairs for approval. In creating their own communal laws, the Kanienkehaka demonstrated a clear disregard for the Indian Act. Finally, with the 1996 signing of the Policing Agreement between Kahnawake, Quebec, and Canada, the community was able to enforce Mohawk law. 

While having reached their goal of judicial autonomy, conflict arose within the community because those in charge of creating laws were also responsible for its interpretation and enforcement; a separation of the two was thus demanded. Despite a greater independence from Canada, the new institutions in Kahnawake were far from a return to more traditional forms of government, especially considering the lack of community member involvement in the legislative process. To address these issues, the Mohwak Council of Kahnawake mandated the Office of the Council of Chiefs (OCC) to develop a community decision making process. The OCC was inspired by past Kahnawake community practices as well as current ones in other Indigenous communities. It held focus group sessions, and carried out various consultations with the community and stakeholders. Mock sessions were held to educate the community on the process and to obtain feedback. The OCC also consulted with the Traditional Working Group in order to integrate traditional principles into the process. On 30 May 2005, the OCC created the Kahnawake Legislative Coordinating Committee (KLCC) responsible for the CDMP. In its beginnings, the model was seen as too cumbersome with its 21-body legislative assembly with community, governmental, and organizational representatives. Following consultations with community organizations over 2 years, the process was streamlined from a 14-phase process into its current 3 phases. Further development was done through consultation with about 100 employees from nine community organizations, interest groups, and governmental entities within the communities. Today, the KLCC is still committed to the process remaining at the grassroots level and for it to continuously evolve along with the community.

Organizing, Supporting, and Funding Entities

The entities from which the CMDP originated are the Mohawk Council of Kahnawake (MCK), the Office of the Council of Chiefs (OCC), and the Kahnawake Legislative Coordinating Committee (KLCC).

Kahnawake is governed by the Mohawk Council of Kahnawake, composed of a grand chief and eleven council members that are elected during a biennial general election. The MCK was first created in 1894 and, according to Alfred, is generally accepted by the community as a legitimate source of authority and represents the community in external relations. Horn-Miller, however, is more skeptical of the feeling of trust the community imparts on the MCK. The Council provides and manages programs that were previously administered by higher levels of government under the Indian Act, and, under their purview, Kahnawake has extensive non-governmental activities such as youth programs, cultural development programs, and sports programs. 

The OCC’s main role is to support the MCK, specifically in politics and governance. Created in 1999, the OCC is the main provider of infrastructure and financial support of the CDMP and it receives its mandate from the MCK. Within the context of the CDMP, the KLCC is housed within the OCC and the latter provides the infrastructure required to support the CDMP. 

The KLCC is in charge of making sure that the CDMP process proceeds in a timely manner. Members of the KLCC are made up of representatives from the OCC, Legal, Communications, Justice, Community Services and a KLCC Coordinator. The Community Representative is expected to reflect the interests of the community to the KLCC. All these members provide their expertise in the CDMP. 

Participant Recruitment and Selection

The participant selection process for the CDMP is self-selection. Members that choose to participate must be registered members of the Kahnawake band list, which effectively excludes non-Mohawk residents. The number of community members involved in the process depends on the number that are interested in participating. There does not appear to be any efforts made to include a diversity of voices in the process. The CDMP was promoted within the community in the mock sessions held during the final steps of the development of the CDMP in order to educate the community on the process and to collect feedback. The process also includes representatives from various Kahnawake institutions and organizations. 

Methods and Tools Used

The main methods and tools at the core of the CDMP are consensus and the seven generations principle. 

Consensus decision making, as explained by Horn-Miller, is “a process of collaborative discussion that respects both the group and the individual.”[3] It is an alternative to the more common “majority rules” process. The goal with consensus is to identify what the best solution is for the group as a whole. This is done by providing each individual equal access to voicing their concerns and ideas in order for a true consensus to be reached. As a group, different proposals are made and they evolve until all participants consent to a final form. Horn-Miller distinguishes between unanimity and consent in that while not everyone may agree on a decision, they can still consent to it.[4] In the process, when a participant disagrees with a decision, they need to provide another idea or somehow contribute to a resolution. Deliberations then continue, dissents are recorded, and ideas are modified until all participants consent to a final decision. The community members that are part of the process must actively be working towards a decision that is in the best interest of the collective. Horn-Miller lists the following three desired outcomes of a consensus process:

1. Improved decisions that include input from all stakeholders, with the resulting proposals better able to address all potential concerns
2. Better implementation processes that include and respect all participants and generate as much agreement as possible, thus setting the stage for greater cooperation in implementing the resulting decisions
3. Stronger group relationships in which cooperation and collaboration foster greater group cohesion and interpersonal connections[5]

The Seven Generations Principle is a philosophy found within the Great Law of Peace – a constitution of sorts that guided six nations into peace (one of these nations being the Mohawk). The Principle is essentially about holding accountability to the future seven generations; a doctrine that can be likened to sustainable development ideals. Passed down orally, the principle teaches that every act has an impact on the world around oneself. In this way, a person’s individual needs should not trump those of the collective. For people to adhere to this principle it requires a shift away from individualism which is a resulting influence of colonialism on First Nations communities. By participating in the CDMP, members become aware of this influence and can work towards shifting their points of view. In this way there is value to the process beyond reaching consensus. Nevertheless, truly adopting the philosophy and putting it into practice in order to reach consensus can be difficult.

Deliberation, Decisions, and Public Interaction

The CDMP process begins when a Kahnawake community member, organization, or the MCK submits a Request for Legislation or a request for revision on an existing legislation. This request is then sent to the KLCC and then Legal Services categorizes it as either a Type I or Type II process. Type I pieces of legislation are those that have the potential to affect the entire Kahnawake community, whereas Type II applies to laws that fall within a specific sector. Additionally, there is an ‘Urgent’ process for requests that require immediate action without which there is a threat to security and safety to the land or people of Kahnawake. Once the law has been categorized, an advisory team is put together to follow the law through the CDMP. It begins with an information gathering process and the results are distributed to the community in order to gauge their opinion on the law or revisions. The information is disseminated through community consultations that range from general to group based. The methods include kiosks, questionnaires, focus groups, and radio talk shows. Based on opinions gathered, a report on this first phase is posted for a minimum of 30 days. 

In the CDMP, the MCK chief has an important role to play in the three types of processes. The chief is responsible for consistency in legislation and implementation, that procedure is followed properly, and they must participate as a member in the process. In a Type II process, the MCK chief must also represent the community that the legislation does not directly affect; the role is to act as a counterweight. 

Consensus Process 

All three types of processes have a community hearing in their first phase, after the preliminary community consultation described above. The hearing is rooted in the consensus process whereby community members participating are divided into three groups which deliberate and pass decisions from one group to another, starting with the first two. Groups are composed of a facilitator, a resource person, a minute-taker, and community members. Each group selects a speaker to represent them in the hearing and this speaker states the group’s position. After the first group’s position is declared, the second group discusses the first and when consensus is reached within the second, their speaker then states their position with comments. This goes back and forth between the two groups until consensus is reached. The third group then states their position and supplemental comments, and the process goes on until a consensus is reached. The hearings last a maximum of two-and-a-half hours and there are no more than two hearings per week. 

The final decision reached through consensus to develop or revise a law is then presented to the MCK chief and a first draft of the legislation is developed. The draft development process includes a drafting committee which boasts community members from the hearing. The draft is then provided to the community and two weeks later another consensus hearing process is started. This hearing-draft process is done three times until final documents are signed, and the law is enacted, published, distributed, and finally implemented. 

Influence, Outcomes, and Effects

The three main legislations that have resulted from the CDMP are the Kahnawake Membership Law, Tobacco Law, and Homes Law. The Membership Law created quite the stir within the community since one of the provisions states that a Mohawk family that adopts a non-Mohawk child would lose their band membership. The passing of the law brought people to question who exactly participates in the process and whether or not they truly represent the community’s wants and needs, and indeed, if the best interest of the community is at the heart of the process. 

Analysis and Lessons Learned

The main issue with the process is the participants; both in their selection and that within the context of the CDMP they supposedly represent the entire community. As previously stated, community members that participate in the process do so through self-selection. As Mark Warren states, this form of participant selection ends up skewing representation towards those with vested interests and those that are well-organized.[6] Furthermore, in a personal communication with Horn-Miller, she attests that the number of participants involved in the process is usually very low.[7] A solution to this issue might first involve changing the participant recruitment process to one of random selection or selective recruitment which brings in participants that are less likely to engage.[8] A possible explanation as to why so few individuals participate is it’s time consuming nature.[9] Despite a streamlining of the CDMP into 3 phases, the entire process usually takes months to complete; this is a significant time commitment for participants. Another explanation that Horn-Miller notes is a lack of trust. This mistrust, she argues, is due to the fact that the MCK was put in place by the Canadian Government and as such, part of the population mistrusts this form of governance.[10]

With these issues in mind, solutions related to compensation and shifting incentive are worth exploring. Considering the level of commitment required to participate in the CDMP, perhaps compensating participants would bring in more community members – this should only be considered with participant recruitment methods other than self-selection. However, Horn-Miller (2013) mentions limited financials as a limiting factor of the process. An alternative is a non-financial incentive which relates to Fung’s (2006) concept of shifting incentive. In the case of Kahnawake and the CDMP, this could relate to the issue of trust. That is, working on the promotion and education of the process to the community, perhaps with the help of elders removed from official governing bodies, such that their involvement in the process is perceived as them taking control back from Canada and as a step towards self-government. 

The CDMP is an example of participatory innovation on the path to Mohawk self-government. As the path slowly moves towards the goal of sovereignty, so does the CDMP towards participatory democracy. One of the characteristics of the CDMP that stands out is its capacity to evolve, especially with the community. With the Kanienkehaka expressing issues of representation, one hopes the CDMP will reassess the ways in which the community is spoken for in the process.

See Also

References

[1] Kahente Horn-Miller. 2013. “What Does Indigenous Participatory Democracy Look Like? Kahnawake’s Community Decision Making Process,” Review of Constitutional Studies 18(1), 111-132 trudeaufoundation.ca/sites/default/files/u5/05_horn-miller.pdf

[2] Gerald R. Alfred. 1994. “The Meaning of Self-Government in Kahnawake,” Research Program of the Royal Commission on Aboriginal Peoples.

[3] Horn-Miller. 2013. “What Does Indigenous Participatory Democracy Look Like?”

[4] Ibid.

[5] Ibid.

[6] Warren, Mark. 2009. « Governance-driven Democratization », Critical Policy Studies 3(1), 3-13.

[7] Horn-Miller. 2013. “What Does Indigenous Participatory Democracy Look Like?”

[8] Archon Fung. 2006. “Varieties of Participation in Complex Governance,” Public Administration Review, 66-75.

[9] Horn-Miller. 2013. “What Does Indigenous Participatory Democracy Look Like?”

[10] Ibid.

External Links

Mohawk Council of Kahnawake - http://www.kahnawake.com/

Notes

Author: Alexandra Laham