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<xTITLE>How Indigenous Voices Can Get Lost in Mediation</xTITLE>

How Indigenous Voices Can Get Lost in Mediation

by Rebecca Hiers
November 2018 Rebecca Hiers

When I worked for the Confederated Tribes of the Umatilla Indian Reservation, I remember one of the elders telling a story about another tribe.  That tribe had depended upon moose for food, clothing, and the like since time immemorial; and the people had a deep bond with moose.  The moose populations, however, had begun to drop drastically. 

Year after year, the state game agency would come and meet with tribal leaders, and would urge them to stop hunting moose.  And year after year, tribal leaders would talk about the special importance of moose to their people, and would urge the state game agency to stop killing and otherwise removing beavers.  Everyone felt frustrated, and discussions were stuck going nowhere.

After about a decade, one of the representatives of the state game agency asked, why do you keep talking about beavers, when we're here to talk about moose populations?  Tribal leaders replied that the beaver, when they built their beaver ponds, created vast wetlands.  These wetlands, in turn, grew most of the plants that the moose feed upon.  The removal of beaver had led to the disappearance of these wetlands; and the moose were starving to death.

As mediators, we know that asking the right question -- and in the right way -- can be key to opening up meaningful communication.  Many indigenous people have a very different world-view, and a very different style of communicating, than our own.  From natural resources issues to family issues, indigenous voices can get lost if we don't recognize these differences.

A Different Communication Style

In communication style for instance, many Native Americans consider interrupting very inappropriate.  Sometimes, though, that means that indigenous people never are heard. 

I grew up in the Deep South, back before air conditioning was commonplace, and nobody had the energy to talk very fast.  So to me, slow talking was normal.  Then I moved to the Northeast Corridor region.  At first I was shocked, not only at how fast people talked, but at how much they interrupted one another.  Conversations seemed more like verbal combat, trying to shove in your words, or shout over the other person's words.  Once I realized that this was just a different style of communicating, and gave it a try, I found it exhilarating -- though exhausting. 

I prefer a slower speaking style; yet when I came to Indian Country, my own speaking style felt crass and crude compared to the very slow, and very respectful way of speaking that I encountered.  No one ever interrupted me; and when I interrupted others, everyone listened quite attentively to what I had to say.  For a while, I was under the impression that people felt that what I had to say was especially insightful and important.  For a while....  Then I realized just how polite and respectful they were; and just how rude and self-centered I must have seemed. 

In time I learned that, in the traditional style, the speaker often would pause -- for seconds, or even for minutes -- before continuing.  This pause in speaking was perhaps to think more before speaking further, and perhaps also to give the listeners time to consider what had been said.  When a speaker was finished, in the native language there was a term that translates roughly as, "I have spoken," that signaled that the speaker was ready to hand over the talking stick, figuratively speaking, to the next person.  Once I understood this custom I began to notice that many traditional people, even though they were speaking in English, often would finish what they had to say with something like, "that's all I have to say," or simply, "thank you." 

I was working for the Tribes in an advocacy role, helping negotiate resolution to a major water rights conflict. When tribal leaders would sit down to negotiate with non-Indians, a meeting might proceed from beginning to end without the tribal perspective being heard at all. 

It wasn't just the reluctance to interrupt that would lead to tribal voices not being heard.  A different world-view contributed as well.  As I have come to understand it, in traditional tribal culture there is an understanding that each of us sees the world differently.  None of us can see more than a tiny sliver of the big picture.  Thus, the more that we listen to others, the more that we can learn and understand.  So getting to hear someone else's perspective is a real gift; and I repeatedly witnessed a genuine desire to hear other people's viewpoints. 

This desire to listen, though, can be misunderstood.  I remember one tribal leader explaining to individuals with whom we were negotiating that, "When I nod when listening to you, that doesn't mean I'm agreeing with you.  It means I understand what you are saying."

Because of this different communication style, making sure tribal voices were heard was always a challenge.  One approach we used to address this issue was to create an agenda in advance, with time slots for each person to speak. 

In mediation, we can help prevent indigenous voices from getting lost by making sure that tribal people have a chance to speak.  We also can help by discouraging interruptions; by giving plenty of time for pauses -- even long pauses; and by asking if each person has said everything that he or she wanted to say at that moment, before moving on to the next person. 

A Different World-View

As mediators, trying to delve beneath the parties' positions to find out what they truly want is always an adventure.  Uncovering underlying interests, though, can be especially challenging when a party has a very different world-view from our own. 

For example, how we frame our questions can make a big difference.  I learned this lesson when we held a large public hearing on the Reservation about a very sensitive issue.  Tribal leaders hoped to get feedback from tribal members on some specific questions, so as to develop a tribal policy on this issue.  So I drafted some questions to hand out to tribal members at the hearing.  First, I ran these draft questions by a tribal member on our staff.  She looked over the questions and said, "Don't ask people what they think about these questions.  Ask them how they feel." 

That comment really opened my eyes.  In most of our non-Indian cultures, we tend to elevate thinking above feelings.  The tribal cultures that I've been exposed to do the exact opposite.  Feelings are considered more reliable, and more profound.  For example, in Indian Country, I often hear people talking about "speaking from the heart," rather than from the head. 

Also, native languages, themselves, include concepts that we do not have words for in English.  One key concept is that everything, and everyone, is interconnected.  For example, I remember one tribal elder explaining that the native word that means "human beings" also inherently includes salmon, deer, plants, air, water, land, sunlight, and so on.  Likewise, the word for "salmon," also includes this whole range of interrelated beings. 

In a conflict situation, the different meanings of words can lead to miscommunication.  When that other tribe started talking about beaver every time the state game agency talked about the declining moose population, I suspect that, to tribal leaders, the interconnected relationship between the moose and the beaver seemed so obvious that it did not need to be pointed out.  After all, their native language, itself, may have implied this interconnected relationship.   

Other differences in world-view also can come into play when trying to uncover underlying goals.  For example, the dominant culture in the United States tends to be fairly competitive and hierarchical.  Within this context, many conflicts revolve around protecting the rights of the involved individuals.  Traditional tribal culture, in contrast, is very community focused.  It emphasizes responsibilities, rather than rights.  So for indigenous individuals, a major goal in conflict settings often is the restoration of healthy relationships -- not the assertion of rights. 

In fact, competitiveness and the pursuit of self-interest may seem both foreign and destructive.  I remember as a child reading about the great Indian athlete, Jim Thorpe; and how when racing, he would slow down enough so that, while still winning, he would not humiliate those he beat.  I heard almost identical stories on the Umatilla Indian Reservation. 

This aversion towards competitiveness, combined with a strong cultural emphasis on sharing, strongly influenced the Tribes' goals in our water rights negotiations.  To the surprise of many, the Tribes, who had gained the legal upper hand for restoring river flows, genuinely wanted a solution that would not adversely impact their non-Indian neighbors who had come to rely upon irrigation for their economy.  This commitment, in turn, led to our nationally-recognized "win-win" resolution, and to the restoration of salmon after an absence of seventy years.

Also, telling someone else what to do seems to be considered improper.  Since time immemorial, the Tribes' unwritten laws were enforced -- not by actual force -- but by people understanding the wisdom behind those customs, and by wanting to comply.  So, each of us has the responsibility to figure out how to fulfill our own unique role in the world, consistent with what is best for the community.  The emphasis is on personal responsibility.  For example, when I've asked my tribal member friends for personal advice, they usually tactfully refuse.  If I really pester them, they may tell me a story that, if I think about it, gives me a sense of how they see my situation. 

In our hierarchical society, however, our legal system is designed to use the power of the government to tell other people what to do.  So when indigenous people find themselves placed in a situation where they are expected to use their legal rights to force someone else to do something, that can feel very uncomfortable and distasteful.

Likewise, most traditional Indian people that I know are not likely to do what somebody else tells them to do.  Since having someone try to tell them what to do is considered quite rude, in a very polite way they may say yes, or simply not argue the point; and then go ahead and do what they feel is appropriate.  So in crafting a mediation agreement, it is crucial to make sure that everyone actually does agree.  Never assume....

Decision-making in Indian Country, however, is not a process that can be rushed.  Most tribal leaders for whom I worked tended to keep an open mind to many different perspectives.  When I had to ask tribal leaders to make a decision, I learned that they often would not do so on the day the question was posed.  Sometimes it would take many meetings, and much discussion, over many months, before tribal leaders would commit to a position. 

Many people who interacted with the Tribes, and who wanted quick decisions, found this custom very frustrating.  It was not uncommon for non-Indians to try to force a decision; or to try to roll over tribal leaders and move forward, simply assuming that they had tribal support. 

Even though I sometimes got impatient, myself, with this deliberative approach, I also very much appreciated the wisdom behind this custom.  This very careful process for making decisions meant that many aspects of the situation, including some issues that might not have been obvious at first glance, were given deep consideration. 

It also means, however, that when you are working with a Tribe, or even with an individual Indian person, if you are looking for a snap decision, you may be disappointed.... 

Avoiding Generalizations

The question that I'm asked probably most often is, which term is best?  "Native American?" "American Indian?"  Other?  I've heard a lot of disagreement within Indian Country, so I would say, ask the person you are working with what his or her preference might be.  On the Reservation, most people I know use the general term "Indian."  Most people identify themselves, though, with a particular tribe; in the same way that people from Germany are more likely to describe themselves as "Germans," rather than as "Europeans." 

My summary here of ways that indigenous voices can get lost in mediation touches on only a few topics.  Most Indian people, of course, have adapted in varying degrees to the customs of the new surrounding culture.  Also, I haven't even tried to address historical trauma -- how post traumatic stress disorder (PTSD) resulting from genocidal policies in the past have cascaded down, and often amplified, over the generations. 

Finally, I can only speak from my own personal experience.  My impressions of one tribe may or may not apply to the many diverse tribes across this land.  If I had spent a decade in Ireland, for example, I might be able to share some insights on Irish culture, but it would be a bit of a stretch for me to apply those conclusions to all Europeans.  Even so, I hope that my perspectives here may be useful in helping native voices be better heard in mediation.   

 

Biography


Drawing upon her experience as both a negotiator and as a neutral mediator and facilitator, Rebecca Hiers offers insights and help on how to resolve disputes through Sunrise Mediation, which she opened in 2002. Before that, she worked for an Indian Tribe for nearly a decade, helping negotiate a successful, nationally-recognized resolution to a major water rights conflict.

Her writings (including three law review articles) and workshops address such diverse dispute resolution topics as: basic bargaining strategies; game theory and the warrior versus peace-maker dilemma for negotiators; the almost magical power of apology and forgiveness in resolving disputes; the often subtle wisdom of traditional tribal dispute resolution approaches; as well as the much more mundane, yet critical issue of exceptions to the mediation privilege and the tension between mediation confidentiality and the rules of evidence. She received her J.D. from the University of Oregon School of Law and her A.B. in Chemistry from Princeton University; and has served on the Executive Committees for the Oregon State Bar's Indian Law Section and Alternative Dispute Resolution Section.



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