Justice in Indian Country is a complicated and multilayered system compounded by treaties, tribal law, state, and federal jurisdictions (Azar, 2011). The interweaving of these legal boundaries significantly blurs law and judicial responsibilities, and has at times challenged the sovereignty of Native American nations (Azar, 2011; Riley, 2017; Wilkins & Lomawaima, 2001). Confounding these jurisdictional relationships are the consistency and quality of communication that occurs between state/federal forces and tribal law enforcement, which is also impacted adversely by the lack of resources across Indian Country (Azar, 2011; Wilkins & Lomawaima, 2001).
These systemic concerns are elevated by the rise in the incarcerated Native American population. Native American adults are the fastest growing group of prisoners in the United States per capita (Davis, 2000) with a nearly 6 % increase of Native American prisoners in federal prisons over fiscal year 2019 (United States Sentencing Commission, 2020). As for Native youth, disparities exist in rates of contact with police and with arrest, as compared to their white counterparts: 2,251 per 100,000 as compared to 1,793 per 100,000 (Daniel, 2020). According to the Centers for Disease Control and Prevention data, the group most likely to be killed by law enforcement, per capita, is Native Americans, which make up 1.9% of police killings (Males, 2014).
Although the rates of incarceration of Native Americans per capita are alarming, incarceration is only one link in the chain of inequity and harm. Reentry poses another significant concern as some returning citizens can be banned by their tribes or federal/state supervision/parole may create limitations to returning to a Native American reservation or territory (Rubble, 2004). Therefore, readjustment and recovery efforts for Native individuals can not only be impacted by personal factors but also by political and governmental barriers.
Many Native American Nations have turned to traditional knowledge and wisdom of the ancestors and are reinstituting the principles of restorative justice. Although the process of restorative justice in Indian Country varies widely, most adhere to the premises of “make right the wrongs” (Umbreit, 2000). This traditional form of justice seeking moves to reintegrate the individual by taking responsibility as a community member. This approach is not based on punitive and retribution measures found in many Western court systems. This approach brings about shifts in paradigms of justice through a lens of Native American tradition. As such, restorative justice seeks to define the seriousness of a crime through a cultural framework that can vary widely throughout Native American Nations, as there are many within and between group differences amongst the tribal communities ( Cunneen, 2007; Wohlers, 2015).
Restorative justice models of retribution are also influenced by cultural paradigms of which restitution to the victim may include peacemaking, public denunciation, or a form of reparation (Cunneen, 2007; Wohlers, 2015). Zion (1998) describes peacemaking as “talking it out” versus imposing punitive actions that often result in the search for excuses for criminal behavior. Zion further explains that by seeking to understand the underpinnings of criminal behavior and listening to the offender, tribal courts are empowered to engage in a solution that will treat the root cause versus the symptom (the behavior), which unto itself, becomes rehabilitative.
The process of restorative justice seeks to include not only the outcome, but the process of making right the wrong by hearing from victims and offenders, considering the severity of the crime, understanding the goal of justice sought, hearing the community’s voice, as well as the integration of tribal courts and formal justice systems (Johnson, 2016; Umbreit, 2000). The idea that engaging restorative justice practices focuses on the relationships of the community lends to the communitarianism approach of many traditional ways of knowing and being (Mirsky, 2004). Not only do the individuals involved in the particular infraction (both victim and offender) benefit, the community also benefits by coming together through the actions of problem solving, healing, the return of family members to their community, and the honoring of the seven generations (Mirsky, 2004).
Through a complicated and interlaced justice system, Native nations are challenged to balance the approaches of federal and state law enforcement while maintaining their own judicial system. With an alarming rate of growth of Native American prisoners, these tribal communities are further challenged not only with the absence of the community members but also in navigating systems for returning citizens. A revival of restorative justice through cultural frameworks, employed by many Native nations, elevates the autonomy and uniqueness of tribal communities. Each nation engaging in this paradigm uniquely applies cultural factors, ontologies, and pedagogies shaped by the traditional ways of knowing and being of each nation. Reaching back into the ontology of the ancestors, the Native American nations are finding individual and community healing through restorative justice. By exercising restorative justice aligned through each tribal nation’s cultural paradigm, tribal sovereignty and self-determination are elevated within the tribal criminal justice construct. The restorative justice approach provides healings across the lifespan of the current generations as well as the seven generations behind and ahead, by engaging tradition across many aspects of life including that of justice.
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