*This post considers general traditional concepts derived from Indigenous cultures. Tribal nations are individual sovereigns—this post does not attempt to represent nor intend to diminish the full diversity represented by the cultures and traditions of Indigenous peoples. Additionally, throughout this post “Indian” is used as a legal term used in the context of Federal Indian Law.
As described by retired Chief Justice Joe Flies-Away of the Hualapai Nation Court of Appeals, traditional Indigenous approaches to justice passed down through generations have culminated in a “Native Standard” focused on relationships and connection. This concept works to heal a person who harms another individual or society. Traditional Indigenous approaches to justice separate the offending action from the person by recognizing that when a person harms another, they act as if they were disconnected from their community. This detached behavior is remedied by reconnecting individuals to their surrounding community. Traditional practices emphasize the importance of reintegrating individuals into the community over enforcing punishment.
“America responds to crime after the fact, not before the fact.” – Retired Chief Justice Robert Yazzie of the Navajo Nation Supreme Court
When Western culture forcibly assimilated Indigenous peoples, it did its best to supplant restorative justice practices with its version of criminal justice. Notwithstanding outstanding legal obstacles, many traditional Indigenous restorative justice practices continue today, both within and outside Indian country.
The Navajo Nation reinstituted its traditional dispute resolution method in the modern day Peacemaker Court. This Court is grounded in respect and solidarity for the group and reciprocal relationships. When a dispute arises, all parties involved, including their family members and other interested persons, come together to discuss the issue and reach a resolution. The overriding goal is to restore harmony in the spirit of the offender—rather than punish them—and to mend the relationships between the parties and their families. This approach reflects the belief that making the offender whole again will bring harmony and balance to the entire community. The Mille Lacs Tribal Court uses traditional Circle Sentencing, a process in which disputants, community members, and elders come together in a circle to talk over issues and decide on the best course of action. Like the Navajo Peacemaker Court, Circle Sentencing includes the parties’ families and other interested parties and they seek to mend relationships and heal lives. Youth courts in Northern Minneapolis adopted Circle Sentencing in the 1990s, and today sentencing circles are used in a variety of settings in North America for both youth and adult offenders.
Despite the enduring efforts, and successes, of tribes to practice traditional methods of restorative justice, Western culture continues to impose its views on Indigenous peoples at the expense of tribal sovereignty.
In 1881, Lakota chief Spotted Tail was killed by Crow Dog, a member of the Brule Sioux. In response, the Tribal Council required Crow Dog to pay restitution. The Council resolved Crow Dog’s actions in accordance with Sioux tradition. Restitution did not satisfy the U.S. government—it separately prosecuted Crow Dog for murder in federal court and sentenced him to death. On a writ of habeas corpus, the Supreme Court found that the federal government had no jurisdiction where the tribal council had already intervened between two Indians within Indian country. The Court’s recognition of the Tribe’s restorative justice approach was backtracked by Congress’s immediate passing of the Major Crimes Act (MCA). At its origin, the MCA placed seven felonies under the jurisdiction of the federal government, even if committed by an Indian within Indian country. Congress has since expanded the list of felonies that trigger federal jurisdiction under the MCA.
The MCA exemplifies Western culture’s inability to appreciate and recognize the traditional practices of Indigenous peoples. Not only does the MCA directly affront inherent tribal sovereignty, it embodies Western culture’s absolute refusal to acknowledge the effectiveness of approaches different to its own. In Ex Parte Crow Dog, the Tribe addressed the conflict according to traditional teachings. But because this traditional method did not encompass Western ideals of retribution and punishment, the federal government, and the public at large, simply could not understand this form of justice.
In 1883, the Courts of Indian Offenses were established in response to the U.S. government’s failure to grasp tribal approaches to criminal justice. The Bureau of Indian Affairs (BIA) operated these courts in a manner that imposed Western values and infringed on tribal sovereignty. The BIA often exceeded the scope of its adjudicatory power and punished any conduct it perceived to be too “Indian” or any attempt by tribes to reject assimilation. Under the Indian Reorganization Act of 1934, many tribes began rebuilding their tribal courts. However, the U.S.’s efforts to diminish indigenous justice continued through a complex web of state and federal jurisdiction rules.
The recent case of Lezmond Mitchell, a member of the Navajo Nation who was executed by the federal government, exemplifies this inability to fathom a justice system not grounded in harsh punishment. Despite the Federal Death Penalty Act’s requirement that tribes consent to the federal government’s pursuit of the death penalty against members of their nations, U.S. then-Attorney General John Ashcroft exploited a loophole that allowed him to pursue the death penalty outside the MCA under a “carjacking resulting in death” statute. Ashcroft did so over the strenuous objections of the Navajo Nation. The immediate family of the victims, also members of the Navajo Nation, were incredibly outspoken in their opposition to the death penalty. Punishment that embodies concepts of revenge is antithetical to the Navajo Nation’s culture. Despite these clear objections, Lezmond Mitchell was executed.
The current criminal justice system in the U.S. relies heavily on ideals of retribution and punishment. This emphasis has resulted in exceptionally costly mass incarceration and ineffective cycles of recidivism. As retired Chief Justice Yazzie astutely pointed out, the current system in the U.S. plays a tired game of catch-up with criminal activity rather than remedying it at the source. When considering methods of criminal justice reform, we would do well to look to Indigenous sovereigns that focus on community and healing instead of ineffective attempts to rehabilitate through punishment.
Gretchen Ulrich, Widening the Circle: Adapting Traditional Indian Dispute Resolution Methods to Implement Alternative Dispute Resolution and Restorative Justice in Modern Communities, 20 Hamline J. Pub. L. & Pol’y 419 (1999).
Gloria Valencia-Weber, Tribal Courts: Custom and Innovative Law, 24 N.M. L. Rev. 225 (1994).