By John Morseau Part one of a two part series
Almost 200 years ago, in the court case Cherokee Nation v. Georgia, the Supreme Court wrestled with the status of Indian tribes in relation to the United States, and in doing so, the Court described Indian people as existing in a “state of pupilage,” which reflected the prominent view of natives as uncivilized savages. Today, however, tribes are educating the US government on native issues.
One of the main areas where tribes are educating federal and state governments concerns the administration of justice. Native American traditional conceptions of justice differ significantly from Anglo-American views. The Anglo-American justice system is adversarial, and the primary goal is retribution, whereas native justice systems strive for relationship renewal and community harmony. In recent decades, tribal courts have been implementing traditional methods of dispute resolution to address problems caused by the corrosive adversarial system. State and federal courts are also looking to native traditional approaches to justice.
In furtherance of a collaborative effort between the 12 federally recognized tribes in Michigan and the State of Michigan, the State Court Administrative Office (SCAO) held a screening of the award-winning documentary Tribal Justice in October. Tribal Justice chronicles the work of two tribal court judges, the Honorable Abby Abinanti, Chief Judge of the Yurok Tribal Court, and the Honorable Claudette White, Chief Judge for the Quechan Tribal Court. As the Chief Judges for the two largest tribes in California, they strive to maintain and use their traditional beliefs while addressing social ills caused by intergenerational trauma. The film weaves multiple cases and storylines together, illustrating how each judge’s approach to justice impacts their communities. One case highlights the collaborative efforts between California and the Yurok Tribe, which enabled a young Yurok man facing 25 years to life to rebuild his life. Another case involved the reunification of a Quechan child with his mother. Throughout the film, the judges demonstrate that progress does not require abandonment of the past, and resurrection of traditional values may be the only remedy for the problems created by so-called progress.
After the screening of Tribal Justice, members of the audience, including state and tribal officials, were given the opportunity to ask questions. Many asked about restorative justice techniques. Judge Abinanti explained that the native concept of justice cannot be reduced to techniques but must be understood as an overarching philosophy. One foundational principle emphasized by Judge Abinanti is that the judge should be removed from the decision-making process as much as possible. As she explained, judges are strangers to the situation and the underlying cause of the dispute, so judges should only render a decision as a last resort when the parties cannot resolve the problem themselves. Additionally, she stressed that the implementation of traditional values requires specifically tailored case plans to fit individual circumstances. Judge Abinanti provided examples from her community, like negotiating alternative forms of payment for delinquent child support, which can include snow shoveling and game meat.
Judge Abinanti also addressed concerns that tribal courts do not hold their members accountable, noting that native justice practices of communal healing hold community members to high standards, and accountability exists naturally when everyone knows one another. She elaborated on the potential for use of “joint courts,” where states and tribes share jurisdiction over a case to maximize services. Joint courts normally occur in the context of wellness courts that address reoccurring drug use. In the California joint court system, the state brings the initial charges but then refers the case to tribal court. The tribal court then develops a case plan tailored to an individual, and the individual can utilize both state and tribal services for recovery and treatment. Judge Abinanti made clear that state and tribal judges have the same goal of helping people and that working together allows for a greater chance of success since, “no judge, state or tribal, wants to fail.”
Check back in the February newsletter to read about another way the tribe is strengthening relationships with the community. If you are interested in learning more about the Tribal Court’s Native Justice Initiative, contact Stacey Rock, Native Justice Initiative support staff at (269) 783-0505 or by email at Stacey.Rock@PokagonBand-nsn.gov.