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American Law Review
     Established 1890  

December 19, 1995
Indigenous Justice Systems
Tribal Society is a way of life
By Ada Pecos Melton


Native American  Medicine Belt

     In many contemporary tribal communities, dual justice systems exist. One is based on what can be called an American paradigm of justice, and the other is based on what can be called an indigenous paradigm.
     The American paradigm has its roots in the world view of Europeans and is based on a retributive philosophy that is hierarchical, adversarial, punitive, and guided by codified laws and written rules, procedures, and guidelines.1
    The vertical power structure is upward, with decision making limited to a few.
     The retributive philosophy holds that because the victim has suffered, the criminal should suffer as well. It is premised on the notion that criminals are wicked people who are responsible for their actions and deserve to be punished.2
     Punishment is used to appease the victim, to satisfy society's desire for revenge, and to reconcile the offender to the community by paying a debt to society. It does not offer a reduction in future crime or reparation to victims.
    
In the American paradigm, the law is applied through an adversarial system that places two differing parties in the courtroom to determine a defendant's guilt or innocence, or to declare the winner or loser in a civil case.
     It focuses on one aspect of a problem, the act involved, which is discussed through adversarial fact finding. The court provides the forum for testing the evidence presented from the differing perspectives and objectives of the parties.
     Interaction between parties is minimized and remains hostile throughout. In criminal cases, punitive sanctions limit accountability of the offender to the state, instead of to those he or she has harmed or to the community.
    
The indigenous justice paradigm is based on a holistic philosophy and the world view of the aboriginal inhabitants of North America. These systems are guided by the unwritten customary laws, traditions, and practices that are learned primarily by example and through the oral teachings of tribal elders.3
     The holistic philosophy is a circle of justice that connects everyone involved with a problem or conflict on a continuum, with everyone focused on the same center.
     The center of the circle represents the underlying issues that need to be resolved to attain peace and harmony for the individuals and the community.
     The continuum represents the entire process, from disclosure of problems, to discussion and resolution, to making amends and restoring relationships. The methods used are based on concepts of restorative and reparative justice and the principles of healing and living in harmony with all beings and with nature.4
    
Restorative principles refer to the mending process for renewal of damaged personal and communal relationships. The victim is the focal point, and the goal is to heal and renew the victim's physical, emotional, mental, and spiritual well-being.
     It also involves deliberate acts by the offender to regain dignity and trust, and to return to a healthy physical, emotional, mental, and spiritual state. These are necessary for the offender and victim to save face and to restore personal and communal harmony.
    
Reparative principles refer to the process of making things right for oneself and those affected by the offender's behavior. To repair relationships, it is essential for the offender to make amends through apology, asking forgiveness, making restitution, and engaging in acts that demonstrate a sincerity to make things right.
     The communal aspect allows for crime to be viewed as a natural human error that requires corrective intervention by families and elders or tribal leaders. Thus, offenders remain an integral part of the community because of their important role in defining the boundaries of appropriate and inappropriate behavior and the consequences associated with misconduct.
    
In the American justice paradigm, separation of powers and separation of church and state are essential doctrines to ensure that justice occurs uncontaminated by politics and religion. For many tribes, law and justice are part of a whole that prescribes a way of life. Invoking the spiritual realm through prayer is essential throughout the indigenous process.
     Restoring spirituality and cleansing one's soul are essential to the healing process for everyone involved in a conflict. Therefore, separation doctrines are difficult for tribes to embrace; many find it impossible to make such distinctions. Whether this is good or bad is not the point. It is, however, an example of the resistance of indigenous people to accept doctrines or paradigms that contradict their holistic philosophy of life.
    The concept of law as a way of life makes law a living concept that one comes to know and understand through experience. Law, as life, is linked to the elaborate relationships in many tribal communities.
     In some tribes it is exemplified by tribal divisions that represent legal systems prescribing the individual and kin relationships of members and the responsibilities individual and group members have to one another and to the community.5
     For example, in several Pueblo tribes, one is born into one of two moieties, or tribal divisions, decided by patrilineal lines. A woman can change membership only through marriage, when she joins her husband's moiety.
     Males generally cannot change their moiety, unless it is done during childhood through adoption or if their mother remarries into the opposite moiety. This illustrates how tribal law becomes a way of life that is set in motion at birth, and continues through an individual's life and death.
    
The indigenous approach requires problems to be handled in their entirety. Conflicts are not fragmented, nor is the process compartmentalized into pre-adjudication, pretrial, adjudication, and sentencing stages.
     These hinder the resolution process for victims and offenders and delay the restoration of relationships and communal harmony. All contributing factors are examined to address the underlying issues that precipitated the problem, and everyone affected by a problem participates in the process.
     This distributive aspect generalizes individual misconduct or criminal behavior to the offender's wider kin group, hence there is a wider sharing of blame and guilt. The offender, along with his or her kinsmen, are held accountable and responsible for correcting behavior and repairing relatio
ships.6

Differences in justice paradigms

American Justice Paradigm

Indigenous Justice Paradigm

Vertical Holistic
Communication is rehearsed Communication is fluid
English language is used Native language is used
Written statutory law derived from rules and procedure, written record Oral customary law learned as a way of life by example
Separation of powers Law and justice are part of a whole
Separation of church and state
The spiritual realm is invoked in ceremonies and prayer
Adversarial and conflict oriented
Builds trusting relationships to promote resolution and healing
Argumentative Talk and discussion is essential
Isolated behavior, freeze-frame acts
Reviews problem in its entirety, contributing factors are examined
Fragmented approach to process and solutions Comprehensive problem solving
Time-oriented process
No time limits on the process, long silences and patience are valued
Limits participants in the process and solutions Inclusive of all affected individuals in the process and solving problem
Represented by strangers
Representation by extended family members
Focus on individual rights
Focus on victim and communal rights
Punitive and removes offender

 

Corrective, offenders are accountable and responsible for change

Prescribes penalties by and for the state

Customary sanctions used to restore victim-offender relationship
Right of accused, especially against self-incrimination Obligation of accused to verbalize accountability
Vindication to society
Reparative obligation to victims and community, apology and forgiveness
This figure represents differences noted by Judge Christine Zuni, with additional differences outlined by the author. Copyright 1995. All rights reserved.

The status of tribes as sovereign nations are both preconstitutional and extraconstitutional. Tribes continue to possess four key characteristics of their sovereign status: a distinctive permanent population, a defined territory with identifiable borders, a government exercising authority over territory and population, and the capacity to enter into government-to-government relationships with other nation-states.7

Footnotes

Points of view or opinions expressed in this article are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.

1. Yazzie, Life Comes From It: Navajo Justice Concepts, Legal Education Series, Alternatives in Dispute Resolution and Traditional Peacemaking (Petaluma, Calif.: National Indian Justice Center, 1993) and Falk, International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order. 32 Temple L. Q. 295 (1959).

2. Travis, Introduction to Criminal Justice, Second Edition (Cincinnati: Anderson Publishing Co., 1995) and Neubauer, America's Courts and the Criminal Justice System, Second Edition (Monterey: Brooks/Cole Publishing Company, 1984).

3. Yazzie, supra n. 1; Tso, Decision Making in Tribal Courts, 31 Arizona L. Rev. (1989); and Zion, Searching for Indian Common Law, in Morse and Woodman, (eds.), Indigenous Law and the State (Forus Publications, 1988).

4. Yazzie, supra n. 1, at 4.

5. Connors and Brady, ''Alaska Native Traditional Dispute Resolution,'' paper presented at the National Conference on Traditional Peacemaking and Modern Tribal Justice Systems in Albuquerque, New Mexico. Tribal Justice Center, (1986) ''Indian Jurisprudence and Mediation the Indian Way: A Case Review of the Saddle Lake Tribal Justice System,'' paper presented at the Conference on Mediation in Winnipeg, Manitoba.

6. Melton, ''Traditional and Contemporary Tribal Law Enforcement: A Comparative Analysis.'' Paper presented at the.Western Social Science Association, 31st Annual Conference in Albuquerque, New Mexico, (1989).

7. Valencia-Weber and Zuni, pre-publication draft, (1995), ''Domestic Violence and Tribal Protection of Indigenous Women in the United States.'' to be published by St. John's University Law Review.

 

    [Editor's Note:This article first appeared in the November - December 1995 Issue (Volume 79, Number 3) of JUDICATURE, the Journal of the American Judicature Society, and is reprinted with permission. The full text is also availble for viewing in the Tribal Court Clearing House journal.]

 

 

 

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