Traditional Indian Solutions for Victims of
Crime
James W Zion
Indian Victims
Studies of crime show Indians are victims of violent crimes at higher rates
than the general population.1 A 1991 survey of tribal court criminal cases
by the National Congress of American Indians shows the most common
offences are disorderly conduct and assault/battery.2 That means tribal courts
are essentially dealing with community disruption, alcohol-related problems.
Indian courts first came into being in 1883, following a racist letter from the
Secretary of the Interior to the Commissioner of Indian Affairs, which
directed the formation of the Courts of Indian Offenses. Secretary Henry M
Teller’s letter complained about the "savage and barbarous practices" of
Indians, including customary marriage and divorce, medicine men,
ceremonies, dances, customary probate procedures and community property
1
M Guilfoyle, "Indians and Criminal Justice Administration: The Failure of the Criminal Justice System
for the American Indian" (1988) MA thesis, University of Arizona. See also, United States
Commission on Civil Rights, Indian Tribes: a Continuing Quest for Survival (1981) 141-149
(inadequacy of Federal agency crime statistics); National Minority Advisory Council on Criminal
Justice, The Inequality of Justice: a Report on Crime and the Administration of Justice in the Minority
Community (1982) 123-164 (impact of criminal justice on Indians).
2
S Rep No 102-168, 102D Congress, 1st Sess 58-59 (1991). The offences and percentages are: (1)
disorderly conduct, 62%; (2) assault/battery, 59%; (3) intoxication, 47%; (4) driving while intoxicated
(DWI), 29%. Each tribe was asked to indicate the three most frequent categories of offence, and the
percentages reflect the most frequent categories.
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ownership.3 In other words, Teller was upset by Indian common law
procedures Indians used to deal with the problems of daily life. The 1883,
1892 and 1904 regulations of the Court of Indian Offenses show the BIA
administrative court was specifically designed to destroy Indian culture.4
The court rules did something else; they introduced non-Indian legal methods
to tribal life. Most Indian systems relied upon personal relationships,
persuasion and discussions of problems for consensual outcomes. The
imposed court system used adjudication and the power of the Federal
Government in place of traditional methods. Adjudication is the method
where an authority figure (the judge) sits in judgment of others, decides who
is "right" and who is "wrong," then gives judgment for one party and against
another. As Justice Homer Bluehouse of the Navajo courts describes it, "one
goes out of the courtroom with his tail in the air, and the other goes out with
his tail between his legs". In criminal cases, judgment often requires jailing
and the payment of a fine to the government. The crisis in American criminal
law is that the law cares more about upholding the dignity and authority of
governmental power than it does for victims of crime. The law books have
few discussions of the rights of victims in the criminal process. When
criminal law was developed in England and was carried over to America, its
purpose was to reinforce central authority and control, not to help victims of
crime.5
American criminal procedure revictimizes victims, and given the fact that
tribal courts normally handle crimes against persons, the question is how
judges can protect victims of crime. There may be some answers in recent
trends to implement victim assistance programs, but tribal courts should look
to their own traditions for fresh approaches.
3
Indian Bureau, Regulations of the Indian Department 86-88 (1884); F Prucha, Americanizing The
American Indians, Harvard UP, Massachusetts, 1973, pp 295-299.
4
Indian Bureau, above, n 3 at 88-71; Report of August 27, 1892, in House Executive Document No.
1, part 5, vol. II, 52 Congress, 2 sees., serial 3088, pp. 28-31; Prucha, above, n 3, at 300-305 (1892
Rules); Indian Office, Regulations of the Indian Office, 1894, pp 105-109; Indian Office, Regulations
of the Indian Office, Rev 1904, pp 101-105.
5
"So far as the criminal law is concerned, the victim will leave the courtroom empty-handed." Prosser
and Keeton, The Law of Torts, West Pub. Co., St. Paul, 1984, p 7. See also, A Harding, A Social
History of English Law, Penguin, Harmondsworth, 1966 pp 21-22.
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TRADITIONAL INDIAN SOLUTIONS FOR VICTIMS OF CRIME
Conflicts between American and Indian Conflicts
We often hear imposed adjudication and the punitive nature of criminal law
conflicts with Indian legal traditions, but there is little discussion of the
reasons for the conflict. The essential difference and source of it is the nature
of adjudication, as compared with traditional Indian justice methods.
Adjudication is tied to central authority, that is, the authority of organized
government.6 Adjudication in American law is a "vertical" system of justice,
which relies upon authority, force and hierarchies of power.7 From the police
officer on patrol at the bottom, to the prosecutor, the judge and the appeals
justices at the top, individuals are processed, judged and punished by
authority figures. The dilemma of the vertical system is how to prevent
abuses of power and authority. That is the reason for appeals, judicial review,
civil rights codes and judicial ethics standards. The vertical adjudication
system needs checks and balances to prevent abuses. It is easy for a system
of authority to become authoritarian; a climate where officials demand
absolute obedience to authority.
History shows us that abuses of authority by English kings led to bills of
rights. One of the first, the English Bill of Rights of 1689, was a direct
reaction to excesses of British kings.8 The Bill of Rights of the United
States Constitution was a response to a legacy of official abuse under the
English.9 In 1968, the Congress of the United States decided Indian tribes
must have a bill of rights to prevent official abuse, and imposed the Indian
Civil Rights Act upon tribal governments,10 Congress had little concern
about whether non-Indian protections were actually necessary, or whether
they were in harmony with Indian concepts of right, fairness or justice. The
dominant, non-Indian, society imposed its own legal values on Indians, with
little regard for their impact on tribal governments and resulting intrusions
on tribal sovereignty.
Indian common law had no need for civil rights protections, because they
were built into traditional justice methods. In contrast to the Anglo method
6
Roberts, "The Study of Dispute: Anthropological Perspectives", in Disputes and Settlements, J Bossy
(ed) Cambridge UP, Cambridge, 1983, p 5.
7
M Barkun, Law Without Sanctions, Yale UP, New Haven, 1968, p 16.
8
I Brant, The Bill of Rights: Its Origin and Meaning, Van Nostrand Co., Princeton, 1965, pp 166-167.
9
See generally, Brant, above, n 8.
10
PL 90-284, §§ 201-701, 82 Stat 73, 77-81 (codified at 25 USC §§ 1301-1341).
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of adjudication and vertical justice systems, Indians have traditional
"horizontal" systems of justice.11 That is, rather than base dispute resolution
on authority and hierarchies of power, Indian justice depends upon
relationships and dealings among equals. Most tribal cultures believe in the
dignity of the individual, with equality and freedom with responsibility.12
Indian cultures offer individual freedom and liberty which is greater than
Anglo-European notions, because Indians also believe in responsibility to the
group.
Horizontal Indian justice is the reason for clan systems. Indians trace their
relationships to each other by blood and clan relations. They are through the
mother (matrilineal clans), the father (patrilineal clans) or both.13 There are
also religious and society relationships.14 That creates a system of
responsibility to persons and groups which is strong. Clan relations are the
basis for what one Canadian Indian lawyer calls "Indian civil procedure".15
Indian Civil Procedure
Indian civil procedure relies upon kinship, and responsibility to the group in
solidarity. It does not separate "criminal" from "civil". Solidarity is a general
agreement that there must be unity in the interests, purposes and sympathies
of the group. That includes shared beliefs about moral values, norms of
conduct and even religious beliefs. Navajos use the word k’e to describe it,16
and the Lakota Nation uses the term tiyospaye,17 A "norm" is a shared value
about right and wrong or ought, and it is an expression of group morality.
When a norm guides the relationships and actions of people in groups, it is
11
Barkun, above, n 7 at 16.
12
R Austin, "Navajo Common Law Principles and Alternative Dispute Resolution" (1991) 1 Mediation
in Tribal Courts Conference, Albuquerque, New Mexico.
13
H Driver, Indian of North America (2d Rev ed), Uni of Chicago Press, Chicago, 1961, pp 242-268.
14
Driver, above, n 13 at 345-362.
15
Comments by Albert Angus (Cree, Thunderchild Reserve, Saskatchewan) to Canadian Native Law
Student Association, August, 1984.
16
"The Navajo term ‘k’e’, means ‘compassion’, ‘cooperation’, ‘friendliness’, ‘unselfishness’,
‘peacefulness’, and all those positive virtues which constitute intense, diffuse, and enduring solidarity".
G Witherspoon, Navajo Kinship and Marriage, Uni of Michigan Press, 1975, p 37.
17
R De Mallie (ed) The Sixth Grandfather: Black Elk’s Teachings given to John G Neihardt, 1984, Uni
of Nebraska Press, pp 320-321.
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TRADITIONAL INDIAN SOLUTIONS FOR VICTIMS OF CRIME
law.18 However it is expressed in Indian languages, it describes deep
feelings about the responsibilities individuals have to each other and the group.
Most Indian civil procedures reject coercion and forcing others to do or not
do something. Instead, people rely upon their clans and relationships to solve
problems. That is why many tribes have special feelings about their elders.
An "elder" is a person whom people look to for example, guidance and
leadership, because of spiritual qualities, good example, good works and
respect for others. Geneva Stump, a Montana Cree judge, describes those
qualities as "knowledgeability". Navajos call their elders and leaders
naat’aanii, meaning a person people follow because of wisdom, demonstrated
ability to plan for the community, and a talent for speaking well.19 These
leaders do not judge others so much as guide and instruct them. They are
respectful of their relations, and lead people to make wise decisions for group
harmony. They need no police; no governmental power; no weapons - their
power is in their personality and respect for their character. The words of
Indian leaders carry great weight, and their guidance is often effective. We
may say of traditional Indian leaders that their "word is law."
In 1978, the United States Supreme Court made this observation about
traditional Indian justice: "Traditional tribal justice tends to be informal and
consensual rather than adjudicative, and often emphasizes restitution rather
than punishment".20 Informality, consent and restitution are keys to Indian
common law, and the stress that law places on helping victims.
Non-Indians like to hold Indians up to ridicule in old stereotypes about
Indian revenge and warfare practices. However, even Indian revenge systems
were tempered by self-banishment, offering gifts to victims or their families,
and restraints on the extent of revenge.21 The usual procedure was
negotiation.
Traditional Indian justice involves people talking with each other. The victim
or family representatives will open negotiations with the perpetrator and his
or her family or clan members. The discussions are direct or carried out by
18
Customs are a body of norms, and when they are adopted by legal institutions, they are law. P
Bohannan, "The Differing Realms of the Law", in American Museum of Natural History Law and
Warfare, Natural History Press, NY, 1967, pp 43, 45-50.
19
Austin, above, n 12 at 3-4.
20
United States v Wheeler (1978) 435 US 313, 322 n. 34.
21
See Provinse, "The Underlying Sanctions of Plains Indian Culture" in Social Anthropology of North
American Tribes, F Eggan (ed), Uni of Chicago Press, Chicago, 1955, p 341.
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more subtle methods, but their purpose and result are designed to restore
victim, perpetrator and their relatives to harmonious relations in the
community. There are practical discussions of what is necessary to solve
problems and preserve continuing relationships. Many Indian communities
are small, and most of their members are related by blood, clan or familiarity
with each other. They are in continuing relationships with each other, and
those must be preserved and nourished for the well-being of the community.
That is the purpose of talking things out, and it is essential to Indian civil
procedure.
Indian justice, unlike American vertical justice, does not put great weight on
finding someone guilty or liable for a wrong. That is because of goal of
Indian justice is to restore ongoing relationships rather than punish people.
The contrast is more obvious by the fact the United States of America has
the highest per capita imprisonment rate in the world, and new prisons are
being built to house more and more participants of urban violence and the
American drug culture. A system which does not concern itself with the
individual - victim or perpetrator - must rely upon the force and power of
authority.
Indian justice does make determinations of guilt or liability, but usually the
facts are simple, there is little question of guilt, or the perpetrator freely
admits the act. As it is with the American system, there is a high rate of
guilty pleas in tribal courts.22 Indian courts can rely upon the essential
honesty of defendants, and deal with perpetrators and victims as equals.
Where there is a question about guilt or liability, the group demands that no
one be punished without moral assurance that the act was done. In Navajo,
the term for "proof* means "making it clear or obvious".23
The judgments of Indian civil procedure have a different focus than do
judgments in the adjudication system. The goal is not so much to punish an
offender as it is to make the victim whole for injuries. Traditional
punishment is severe, from the Indian point of view. The worst punishment
in traditional law was the banishment or self-banishment of an offender.
When family and clan members turned their back on a repeat offender, or
one who committed a particularly offensive crime, that had the effect of
22
National American Indian Court Judges Association, "Long Range Planning Project, Indian Courts
and the Future", 1978, pp 95-96.
23
D Vicenti, L Jimson, S Conn and M Kellogg, The Law of the People: Diune Bide Haz’aanii, 1972,
p 155.
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TRADITIONAL INDIAN SOLUTIONS FOR VICTIMS OF CRIME
banishment. To this day, some tribes practice this in "the rabbit treatment".
Punishment also involves lectures to offenders, humiliation, or keeping an
eye on the person in the future. Lectures often use traditions from ceremonies
or tribal stories to show the law and precedent which is applied, and exactly
how that person violated the law.24 Humiliation not only puts the offender
on the spot by talking about him and lecturing him, but there is Indian case
law in the form of stories about an offender. Someone who has violated
standards of community decency may have the story of his or her offense
told for years. Many tribes have "joking relationships," which is a method of
shaming and keeping an individual from committing an offense again. A part
of the punishment for an offense is the family using its relationship to remind
the offender of wrongdoing, including watching him in the future. This the
civil procedure to make victims whole.
Indian criminal law is tort law, where the focus is repairing the harm caused
by an offence. The traditional trial, where people talk about an offence, the
offender and the victim, is designed to make victims whole. Depending upon
the relationship of the parties, the severity of the injury, and the ability of the
perpetrator his or her family and clan to cure a hurt, there are payments.
When someone is injured, that has a severe impact on dependent families.
They survive, despite the severe poverty we see in Indian country, because
people depend upon each other. Therefore, the discussions see how the injury
hurt both the victim and his family, and decide what needs to be done to
make up for past or future loss. Negotiations then produce an agreed
settlement and payment to the victims of crime. The form and amount of
restitution depends upon the resources of the offender, and the degree the
family and clan takes responsibility to join in restitution. Punishment is part
of this form of restitution, because of the familial nature of Indian civil
procedure. Given the fact families and clans take on responsibilities for their
members, where the group makes restitution, it will punish and supervise
offenders. In fact, this system makes an offender’s family and clan a group
probation officer!
Another aspect of traditional restitution, which makes Indian civil procedure
unique, is absolute liability. American criminal law revolves around
determinations of guilt "beyond a reasonable doubt". In civil actions, the
standard of proof is "clear and convincing evidence" (e.g. for mental
commitments) or "a preponderance of the evidence" (whether it is "more
24
Zion, "Searching for Indian Common Law", in Indigenous Law and the State, B Morse and G
Woodman (eds), Foris, Dordrecht, 1988, pp 125-128.
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likely than not" someone committed an act which injures).25 Those rules are
a moral judgment of guilt, depending on the seriousness of an offense or
severity of penalty. Indian civil procedure uses absolute liability, where
someone who injures another is responsible to make the injured person whole
for the damage. This too ties into the notion of group responsibility, and the
ages-old practices of Indians working and living together for group survival
and harmony.
.................................
Indian restitution is also a way to repair ongoing relationships, because it is
a visible method of restoring harmony between individuals and assuring the
harmony of the group.
Contradictions in the Recognition of Indian Law
In 1555, Emperor Charles V issued a proclamation which required Spanish
officials to honor and abide by Indian law.26 The British recognized Indian
law in the American colonies in 1774.27 In 1883, 1899, 1978, and 1990, the
United States Supreme Court officially recognized the validity and binding
force of Indian common law.28
Indian common law and justice do not require a bill of rights or extensive
systems of appeals. They rely upon discussion and consent. Despite the fact
traditional Indian law does not require written charges, confrontation of
witnesses, counsel, juries, appeals or proof beyond a reasonable doubt, in
1968 the United States Congress forced the Indian Bill of Rights on Indian
nations.
Indian tribes had the Courts of Indian Offenses imposed on them in 1883,
and when the Indian Reorganization Act of 1934 recognized the right of
tribes to have their own justice systems, the heart of the old system
25
The degree of proof depends upon the moral certainty a judge must have, depending upon the severity
of the punishment of penalty. Another way to put it is this: A preponderance of evidence, with a
"more likely than not” standard, means - "I think you did it". "Clear and convincing" evidence means
- "I’m sure you did it". "Proof beyond a reasonable doubt" means - "I know you did it".
26
27
28
Juneau, "The Light of Dead Stars" 11 (1985) American Indian L Rev 13.
Campbell v Hall (1974) Cowp 208, 209, 98 Eng Rep 1045.
Ex Parte Crow Dog (1883) 109 US 556, 568-569 (customary criminal law); Jones v Meehan (1899)
175 US 1 (inheritance of lands); Oliphant v Suquamish Indian Tribe (1978) 435 US 191, 210-211
(reverse of Crow Dog for criminal jurisdiction over non Indians); United States v Wheeler (1978) 435
US 313, 322 (tribes may use their customary criminal law in tribal court); and Duro v Reina (1990)
495 US 109 L Ed 2d 693, 709-710 (nonmember Indians and the customary criminal law of other
tribes).
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TRADITIONAL INDIAN SOLUTIONS FOR VICTIMS OF CRIME
continued. In 1935, the Bureau of Indian Affairs issued a "Law and Order
Code" for its own courts, and BIA agents forced tribes to adopt it as tribal
law. Many Tribal courts still use the imposed system of adjudication, and
when non-Indians think they are unfair, those non-Indians push for federal
judicial review of tribal court decisions.29 Despite the recognition of Indian
common law in American law, we return time and time again to the
contradictions between vertical and horizontal justice, and between the double
standard of "recognizing" Indian law but knowing nothing about it to honor
it. Non-Indian judges and lawyers assume that Indian law is "barbaric", but
we must ask who the barbarians are. If tribal governments want to avoid
control by outsiders and inappropriate laws they must return to their
traditional legal values.
Indian Alternative Dispute Resolution (ADR)
To this point, this article has avoided using the modem term "alternative
dispute resolution". The reason is that tribes must not be trapped by yet
another imposed system of justice. There is a great deal of zeal and
enthusiasm about alternative dispute resolution in the United States, largely
because of dissatisfaction about adjudication, courts and lawyers. Without
knowing why it fails, people seek alternatives to the present legal system.
They do not recognize the fact that a system of authority is not only
expensive and inconvenient, but it too easily becomes authoritarian by its
very nature.
When Indians began winning cases in court, the Bureau of Indian Affairs
developed a sudden enthusiasm for alternative dispute resolution.30 When
Indian tribes assert their water rights, land rights, and regulatory authority,
they are pushed into negotiation, mediation, arbitration, or other forms of
ADR. The problem is these methods, particularly negotiation and mediation,
require equal bargaining positions and a balance of power. Where there are
imbalances, mediation can be destructive.
The nature of non-Indian mediation repeats the mistakes of adjudication. The
notion is that a mediator is an impartial facilitator of discussion, bound by
ethical standards which are very similar to those judges follow. Non-Indian
29
On November 20, 1991, the Senate Select Committee on Indian Affairs held a hearing on a draft bill
which would provide for general Indian Civil Rights Act appellate review of tribal court decisions.
Given the fact non-Indian judges do not understand Indian common law, that kind of review would
destroy it.
30
J Aubach, Justice Without Law, Oxford UP, New York, 1983, pp 128-129.
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mediation standards and procedures are often as alien to Indian customary
practices as the adjudication method. While many of them may be valuable
in tribal contexts, Indian leaders must resist the wholesale importation of
current ADR techniques and imposed standards, as they must resist
adjudication methods which do not conform to tribal values. Traditional
mediation is often interventionist, where an elder uses respect to openly tell
a wrongdoer that what he or she did is wrong and in violation of traditions.
Non-Indian mediators avoid offending a wrongdoer, to coax an agreement.
That encourages manipulation.
Is it "romantic" to assume that the old Indian common law is still useful
today? Have Indians "lost" their old law? Is there a place for Indian civil
procedure in tribal courts?
Indians and their tribes are rediscovering their roots, and recognizing that
they had methods which were superior to non-Indian ones. Indian culture
remains alive in North America, and it is still passed on in religion, language,
tradition. The bedrock of Indian common law is still largely in place. If ADR
is society, then Indian civil procedure is justice for victims. Some tribes still
use their traditional justice methods.
Discussion and Talking Things Out
The Zuni Tribal Court of New Mexico enshrines its traditional methods of
talking things out in modem criminal pretrial procedure. Criminal cases
which are not resolved by a guilty plea are scheduled for a criminal pretrial
conference, where the victim and accused meet each other, have an
opportunity to talk out the underlying event, and decide what should be done
about it. The trial judge presides at the conference and uses mediation to
prompt an agreed resolution. If that fails, the defendant has a right to go to
trial, and a judge who knows nothing about the conference presides over the
trial. That is use immunity in criminal mediation. Modem pretrial techniques
can be used in judicial mediation to apply old procedures.
There is a role for judicial mediation, and many tribal judges use it in place
of adjudication. When Justice Homer Bluehouse of the Navajo Courts was
the Chinle (Arizona) district judge, he often used mediation to deal with
criminal charges. If he saw a family or group dispute as the source of an
offense such as assault, he would identify the main actors in the underlying
problem and call them in for a meeting to discuss it. If the meeting reached
an agreement about the dispute, including restitution, then he would honor
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TRADITIONAL INDIAN SOLUTIONS FOR VICTIMS OF CRIME
it by dismissing the criminal charge. That is a longstanding tradition in many
tribal courts.
Forms of mediation
Mediation is an important court technique. Chief Judge Donald D Dupuis of
the Confederated Salish-Kootenai Tribal Court often uses it to close a case.
He will hear enough testimony to educate himself about the nature of the
dispute, then stop the trial. He then moves the parties and counsel to a
conference table to discuss how to resolve the case. This is a valuable
method of incorporating Indian traditions into modem court systems, and
court conferences which are actually traditional mediation - "talking things
out" should be encouraged.
There are other methods as well. The Navajo Peacemaker Court is a modem
court-annexed system of mediation and arbitration which uses traditional
Navajo methods.31 Its rules allow people to go directly to a peacemaker in
the local community, or a judge in a civil or criminal case may refer it to a
peacemaker.
The Navajo system uses the tradition of the naafaanni, and involves
respected local leaders to promote discussion. The rules of the Navajo
Peacemaker Court do not dictate mediation methods. While they provide for
arbitration, which is someone making a decision for people as kind of a
private judge, traditional Navejo mediation is almost arbitration. That is,
peacemakers use traditional prayers to bond the parties to the process; they
encourage discussions of the problem; they give a lecture to bring people to
closure and agreement; and they give instructions on how the parties’ conduct
and needs meet traditional values. The peacemaker’s counsel and opinions
guide the parties to mutual conclusions, making their decision a form of
traditional arbitration. In Navajo history, the naat’aanii had strong persuasive
authority, and his or her suggestions guided group decisions which were
accepted by the community.
The mediator should be an "elder," in the sense of someone who is respected
in the community. In fact, unlike non-Indian methods of mediation, Indian
systems can use family or clan members as mediators, precisely because they
are related to the parties and have persuasive authority with them. Non-Indian
31
J Zion, "The Navajo Peacemaker Court: Deference to the Old and Accommodation to the New" (1983)
1 American Indian L Rev 89.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
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mediation methods require strangers to preside over the process of talking
things out.
Restitution and Making Victims Whole
Most tribes have the tradition of compensating victims for injuries done to
them. Traditional law required the wrongdoer to make a victim whole for the
harm done. General American criminal and civil law often gives judgment
for a flat amount, payable in a lump sum out of the defendant’s property.
Tribal courts recognize the poverty of defendants, and require time payments,
transfers of property, or other methods of compensation within a defendant’s
means. Therefore, tribal courts and traditional mediation should be practical,
and explore methods of restitution which meet both the victim’s needs and
the perpetrator’s means.
Another aspect of "making whole" is restoring harmony to people in
continuing relationships. Much of the criminal caseload of tribal courts
involves assaults. It is likely that means domestic violence, where family
members or people in close relations assault each other. Here too, the
dynamic of clan relations is important, because the definition of "domestic
violence" should include them. The other frequent offense, disorderly
conduct, often involves damage to property. There too restitution is
important. Restitution is a form of apology, and it is restorative justice - it
puts parties back in good relation to each other.32
We must not forget the offender in the process. Many criminal offences are
alcohol-related. Intoxication should never be an excuse or justification for an
offense or injury to another. It is a symptom of underlying distress, and often
unemployment, poor education, martial problems and family disruption are
factors in both alcohol abuse and alcohol-related offences. Ongoing
relationships in trial communities cannot be fostered without an intelligent
approach to alcohol abuse. The process of talking things out and counselling
in traditional mediation is important to give offenders reality therapy to deal
with their denial and promote healing by referrals for traditional or modem
treatment.
Traditional mediation should be a vehicle for apologies after injury, making
victims whole and doing restorative justice. Restorative justice is the main
goal of traditional Indian justice methods.
52
178
D Van Ness, D Carlson, T Crawford and K Strong, Restorative Justice, 1989, pp 24-32.
TRADITIONAL INDIAN SOLUTIONS FOR VICTIMS OF CRIME
Involving the Family and Clan
A thought which is alien to non-Indian law, but which is common to Indian
concepts of justice, is the responsibility of the family or clan for injuries
caused by its members. General principles of American law (with the
exception of some juvenile statutes) prohibit courts from putting the
responsibility to pay damages or restitution on the relatives of an offender.
To the extent family and clan ties are still strong enough to persuade them
to take on responsibility for erring family members there are techniques
modem courts can use to get group restitution. The Statute of Frauds permits
someone to assume an obligation for another in writing. We are familiar with
that process when family members co-sign for another’s loan. Tribal courts
should explore the law of sureties and guarantors to develop methods for
family and clan members to assure that an individual offender’s restitution
obligations will be carried out. In traditional Indian law, the family was a
probation officer and guarantor of the peace in the future.
Conclusion
Many people are interested in traditional Indian law because it was not only
a magnificent system of unwritten law, but it is still valuable today. So long
as Indians retain their traditional values, Indian civil procedure is practical.
A leading writer on Indian law, Professor Frank Pommersheim, wrote a
brilliant essay on the "contextual legitimacy" of tribal courts.33 By that he
means tribal judges and justice planners must actively consider their methods
and acceptance in light of values which are still strongly-held by tribal
cultures. A part of that process is identifying today’s community values,
including the old ways. On December 6, 1991, there was a conference on
Indian alternative dispute resolution in Albuquerque, New Mexico.34 One
of the presentations was a videotape of members of the Laguna Pueblo
holding a "family gathering," where family members met to discuss a
couple’s martial problems. That works, and many of the pueblos of New
Mexico still use that method. It is a valuable way to resolve family problems.
The Courts of the Navajo Nation are actively looking at new ways to use
their common law. Since 1969, the published decisions of the Navajo courts
33
F Pommersheim, "The Contextual Legitimacy of Adjudication in Tribal Courts and the Role of the
Tribal Bar as an Interpretive Community: An Essay" (1988) 18 New Mexico L Rev 59.
34
F Landon, "Mediation An Old Art For Indians" (1991) Section D Albuquerque Journal 3.
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AUSTRALIAN JOURNAL OF LAW AND SOCIETY
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have used Navajo common law, and it is the law of preference. In 1982, the
Judicial Branch created the Navajo Peacemaker Court, a system of traditional
Navajo justice which is annexed to a modem court. In 1988, it received a
grant from the Bureau of Indian Affairs to improve the operations of the
Navajo Peacemaker Court. One of the most exciting results of the project is
the development of descriptions of traditional Navajo mediation. There is a
videotape program, in Navajo and in English,35 which shows how the
traditional Navajo "talking" works.
Traditional Indian law is not out of reach, and many elders are there to
advise on how to revive and adapt it. Indian values or norms, when put into
practice, are "law," and Indian civil procedure will be a key to advanced
methods of dispute resolution. What we call "America" today owes a great
deal to Indian cultures. The idea of separate states in one union in the US
Constitution comes from the Iroquois confederacy,36 and American civil
rights ideas come from Indian equality and freedom.37 Indian common law
and civil procedure is rich with ideas about how people can live together in
peace by honoring equality and need. It is also a key to true justice for the
victims of crime.
General American law of the past has shown little concern for the victims of
crime, while Indian common law puts them first. That should guide our
decision about the systems tribal courts should use.
35
Hozbooji Naat’aanii (Judicial Branch of the Navajo Nation 1992). The project is working on other
tapes as well.
36
D Grinde and B Johansen, Exemplar of Liberty: Native America and the Evolution of Democracy, U
Cal AISC, 1991.
37
See generally, Grinde and Johansen, above, n 36.
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