Tribal courts often operate under a dual justice system. One is based on the American philosophy of retribution and the other is based on an Indigenous philosophy of restoration. The American system is adversarial in nature. One of the primary goals of this system is to impose punishment for violations of the law. This often involves the levying of fines and separation from the community through incarceration.
The Indigenous philosophy, with a focus on restoration, seeks to harmonize the underlying conflict and restore balance to the individuals affected and the community at large. Under this system, the judiciary works to restore relationships and heal lives. One of the primary goals of this system is reintegration into the community.
American justice is based on rules and principles. Indigenous justice is based on human relationships and webs of connectivity.
James Zion, former Solicitor to the courts of the Navajo Nation, says that “The basic concepts of Indian justice are relationships, reciprocity, solidarity and process…[and] understanding that what I do has an impact on you and what you do has an impact on me.” Zion goes on to say that the Anglo world has a lot to learn from this concept.
There is clear alignment between the restorative practices of contemporary tribal courts and traditional forms of indigenous justice. Restorative court systems often employ a team of individuals who work with the parties to resolve the dispute. This is similar to the traditional system that consisted largely of a council of tribal elders or other designees. As mentioned above, this form of justice recognizes that the offender will eventually be reintroduced into the community. Therefore, it seeks to heal the underlying causes of the troublesome behavior, to prevent repetition in the future. Former Navajo Justice, Ray Austin, tells us that indigenous courts are focused on restoring harmony and balance to the spirit of the individual who commits the offense, because it is believed that people who are whole do not engage in harmful actions. In this way, you are also helping to restore balance and harmony to the community.
Shanti Thakur looked at restorative justice practices in her film Circles. The film focuses on the practice of circle sentencing, which is currently being employed in the Yukon where incarceration rates for Indigenous peoples is disproportionately high. It looks at the fact that going to jail was simply a natural extension of attending residential boarding schools for many indigenous peoples. Circle sentencing seeks to heal the offender, the victim and the community. Circle sentencing is based on traditional Indigenous peacemaking practices using negotiation and consensus. Under this system, all parties to a dispute come together to determine the appropriate response to the crime. This process consists of multiple phases and is overseen by a community justice committee. In phase one the community justice committee interviews the offender. In phase two, there are separate healing circles held for both the victim and the offender. Phase three brings everyone together to work out an appropriate sentencing plan. And, in phase four the justice committee conducts follow-up circles to monitor and discuss the offender’s progress and next steps.
Another form of restorative justice involves the use of family group conferencing. Family group conferencing is also reflective of traditional tribal practices, paralleling the function of a family clan council. Here, the victim, offender, family, friends, co-workers, teachers and spiritual leaders all come together to take collective responsibility for the victim and the offender.
Family group counseling began to surface as a modern practice in New Zealand in 1989, and was based on the traditional practices of the Maori. Family group conferencing is based on four dispositional options:
- An immediate warning by the police.
- Police requiring the offender to apologize or provide community service.
- Family group conferencing.
- Standard Court Sentencing
Each of these different forms of restorative justice provide an opportunity to bring balance and harmony to the entire community, something that is often lacking in the American Justice system. Restorative justice helps communities to view crime as more than an isolated criminal offense. It views it as a symptom of a larger problem and allows parties to find a lasting resolution to those problems, so that they are not repeated in the future.
Five Principles of Restorative Justice
Restorative justice operates around five basic principles. These are:
- Crime consists of more than a violation of the criminal law and defiance of authority.
- Crimes involves disruption in the three dimensional relationships of victim, community and offender.
- Because crime harms the victim and the community, the primary goals should be to repair the harm and heal the victim and the community.
- The victim, community and offender should participate in determining the response to crime; it is believed that the government should release its monopoly over that process in order to make it more effective to the individuals involved.
- Case disposition should be based primarily on the victim’s and the community’s needs, not solely on the offender’s needs or culpability, the danger that he/she presents or on their criminal history.
The practice of restorative justice is becoming more and more prevalent. The increase in participation has caused some within the criminal justice system to raise a flag of concern. The primary concern has been with the inability to track restorative justice outcomes. Proponents argue that creating stricter guidelines that are focused solely on traceable outcomes will hamper the process, making it less likely that practices will be specifically geared toward the needs of the individuals involved.
As tribal courts become more self-determined and sophisticated, it will be interesting to see the long term role that restorative justice practices will have. In the end, the community will have to decide if they want to move their court toward a more Americanized structure, or if they want to organize their court in alignment with the traditions and beliefs of the communities they serve.