Michael L. Moffitt (University of Oregon School of Law) has posted "Truth. Regardless of Reconciliation?" The abstract:
Formal responses to historical injustices have typically taken one of two fundamental forms in the past hundred years. The first form is familiar to legal systems—a retributive process in which an adjudicative body measures the conduct of alleged wrongdoers against some set of established standards (think Nuremberg Trials). The second form is often labeled “alternative,” particularly in Western legal systems, despite its long history and increasing prevalence within the past few generations. It focuses on broad inclusion, shared responsibility for the outcomes, and a forward-looking perspective on the next steps beyond or in lieu of traditional criminal sanctions (think South Africa’s Truth and Reconciliation Commissions). Some cases of historical injustice on larger timescales, however, do not lend themselves neatly to either of these basic models. Sometimes, clarifying foundational factual matters is essential, but testimony by people with first-hand knowledge of the incidents in question is impossible. What then? This Article takes up the case of the 1850 wrongful execution of five Cayuse Indians, men who became known as the Cayuse Five. The Five had been convicted of murdering Dr. Marcus Whitman in 1847, in what would eventually become the Oregon Territory. Their conviction came despite considerable evidence that some or all had no direct involvement, after a deeply problematic trial. Where the Five were buried is unknown, and that fact stands in the way of repatriation. The ongoing search for their burial location sits astride the prospect of a non-adjudicative process aimed at reconciliation, justice, healing, or whatever the living may deem the best course of action. The Article provides background on the undertold history of the Cayuse and white settlers in the mid-nineteenth century and then notes the ongoing significance of the fact that the burial locations of the Cayuse Five remain unknown. The Article then argues that although this work is not focused on resolution, it nonetheless belongs under the broad umbrella of dispute resolution, peacemaking, and conflict resolution. The Tribe’s ongoing search (as well as the assistance others are providing to them) is best understood through the lenses of ethics and practice within dispute resolution—even though the search does not share the familiar trappings of classic reconciliation or restorative processes.
The full paper is available here.
-- Karen Tani
