Restorative Justice – An Indigenous Practice That Was Outlawed in the Past

Carol A. Hand

Lately, I have been reflecting on the ever-more punitive nature of many US policies and institutions. I was reminded of a crucial decision point in US history as I read the incisively and eloquently argued posts about criminal (in)justice on Deconstructing Myths and  Take Heart!, and the inspiringly creative and respectful innovations posted on Nobody Wakes Up Pretty, and Joan Treppa – Citizen Advocate for Wrongfully Convicted People.

Thankfully, I am not an expert in the appropriately named field of “criminal justice.” From my perspective, the punitive, inhumane policies and institution we have put in place to deal with what we define as “crime” are not just. In fact, the policies and institutions could be aptly characterized as a crime against humanity. Given recent incidents of police violence in urban areas around the US, I remembered something I witnessed during my research study of Indian child welfare in 2001-2002.

************

It was a warm, humid summer night, one of many that year (2002). In my small efficiency apartment above the copy shop in the center of the small county seat of a rural county, I needed to keep the windows open to let in whatever gentle breezes existed. Tonight was different than other nights, though. Normally, I could hear the sounds of children yelling as they played on the streets well after midnight. I often wondered why kids were out on the streets so late. Weren’t their parents concerned? Why aren’t the police concerned? But this night, I awoke when I heard angry voices below and saw the colored lights – red and blue – moving across the newly painted walls of my apartment. I got up and looked down at the street.

From my window, I could hear the policemen asking the three Native American youth why they were in town. Perhaps “demanding to know in an accusatory manner” is a more apt description of the scene unfolding beneath my window. The youth agreed to leave rather than face the alternative – being taken to the police station. I found it interesting that during the months that I had spent in this apartment conducting an ethnographic research study about Indian child welfare, I had never witnessed the police intervene with the Euro-American youth who roamed the streets at night. Suddenly I understood why Native youth comprised 45 % of the juvenile justice cases in the county although they were only 8 % of the county’s youth population.

world dash crisis dot come

Photo Credit: Repression

As a researcher bound to a strict code of noninterference, I needed to consider what my ethical obligations were in such a situation. It took time for me to discover an acceptable resolution to this conundrum. First, I needed to learn more about the communities I was studying and identify reasonable long range possibilities. And once again I was reminded of fundamental, but often invisible, cultural differences. Policies and institutions evolve in cultures based on their answer to a simple question – Are people in essence born “good” or “evil?” Simplistically speaking cultures that emphasize individualism and the need to compete with others and dominate nature to survive tend to believe that people are born in a state of original sin. People in such cultures must be taught to behave in moral ways through modeling, coercion, and if need be, punishment, and the institutions these societies create are built on these assumptions. Cultures that believe people are born in state of original sanctity tend to recognize the interdependence of all people and their environments and emphasize the need to collaborate with others and care for the environment in order for the community and culture to survive in the future.

I thought about the ever-constricting sovereignty of tribal governance and jurisdiction that resulted from the enactment of the Major Crimes Act in 1885.

“In 1883, Crow Dog, a well-known Lakota medicine man, killed Spotted Tail, another popular leader of the tribe. Federal authorities removed Crow Dog from the reservation and tried him for murder. Crow Dog argued that the federal government had no right to try him because federal courts had no jurisdiction on the Lakota Reservation. In killing Spotted Tail, Crow Dog acknowledged that he had broken Lakota law and claimed that he should be tried and punished by the Lakotas. (Under tribal law, Crow Dog would have been made responsible for the care and protection of Spotted Tail’s family.) The [Supreme] court agreed with Crow Dog’s argument, ruling that the federal government had passed no legislation giving it criminal jurisdiction over the tribes and that criminal disputes involving tribal members were to be settled according to tribal law.” (O’Brien, 1989, pp. 71–72).

Angered by this ruling, the US Congress, in its newly assumed plenary power over tribal nations (1871), made the commission of major crimes by tribal members a matter of federal jurisdiction (The seven major crimes initially covered included murder, manslaughter, rape, assault with intent to commit murder, arson, burglary, and larceny.)

“When reflecting on the problem of judicial inequity, it is important to consider the western worldview in which this system is grounded, a competitive and commerce-driven perspective obsessed with consumption, while disregarding its consequential wastefulness. The US courts mirror this worldview, punitively casting the disenfranchised into a penal wasteland. This is the adversarial system.” (Hand, Hankes, and House, 2012, pp. 451-452)

I also thought about my observations of the present day prison setting. I remember driving home from my site visit to review a student’s practicum performance in a women’s medium security prison. A gifted and mature student, Ursula (not her real name) was fortunate to be placed with an extraordinary social work practitioner (Frieda, an assigned name to protect identity) who established many necessary programs to address crucial issues for the women she served: GED completion, treatment for incest and domestic violence, parenting, and job skill development to name a few. Frieda’s compassion and creativity in a dauntingly punitive setting was profoundly inspiring. Yet on the long drive back from the prison I found myself wondering why women had to suffer so egregiously before they got help for things that could have been prevented. The lives of most of the women Frieda worked with had been scarred by the consequences of discrimination and structural inequalities. They had grown up in dangerous impoverished inner city neighborhoods. Hunger, abuse, inadequate housing, woefully underfunded education, and lack of access to health care limited their life choices. And in their heavily policed neighborhoods, they were far more likely to end up in prison than others from more affluent neighborhoods who committed more serious offences in private or privileged corporate settings.

************

compassion greatergood dot berkeley dot edu

Photo Credit: Compassion

There are many viable alternatives to punishment and imprisonment, but it requires recognizing others as our relations. This was easier for me to do with Ojibwe youth than it was for the Euro-American police officers or county child welfare staff I met with during my reserach.

“Whereas the prevailing culture of European colonizers was based on the notion of individual rights and self-actualization, within traditional Indigenous communities, each person was first and foremost part of the community. This does not mean that individuality and autonomy were not valued. On the contrary, each member was respected for his/her unique contribution to the group. That contribution might be as a hunter, a healer, an aunt, or an uncle. Each individual’s role or mission was regarded as good, a life mission, and no role or mission was considered better than another (Hankes, 1998). In this worldview, every member contributed to forming and sustaining the community and this extended-family relationship continues to be expressed across tribes in the phrase all my relations.” (Hand, Hankes, & House, 2012, pp. 449-450)

I did finally decide on an action after my field research ended. But that is a story I will tell in my next post. I’m not sure when that will be, though. Tomorrow I’m scheduled for cataract surgery and I have no way of knowing the outcome. I hope you will understand why it may take some time for me to finish this story, and why I may not be as active a reader and commenter on blogs in the coming weeks.

Works Cited:

Carol A. Hand, Judith Hankes, & Toni House (2012). Restorative justice: the indigenous justice system. Contemporary Justice Review: Issues in Criminal, Social, and Restorative Justice, 15:4, 449-467, DOI: 10.1080/10282580.2012.734576

Sharon O’Brien (1989). American Indian tribal governments. Norman, OK: University of Oklahoma Press.

Copyright Notice: © Carol A. Hand and carolahand, 2013-2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited. Excerpts and links may be used, provided that full and clear credit is given to Carol A. Hand and carolahand with appropriate and specific direction to the original content.

Advertisements

27 thoughts on “Restorative Justice – An Indigenous Practice That Was Outlawed in the Past”

  1. Thank you, Carol, for mentioning my work and for writing what I find myself asking again and again: “…why women had to suffer so egregiously before they got help for things that could have been prevented.”
    BTW, I’ve heard that after cataract surgery, colors often seem so fresh and bright, the world feels new. I hope you too find renewal. and I’ll look forward to your renewed blogging when you heal.

    Liked by 4 people

    1. Diane, I am honored to be able to mention your important work. This is a crucial question, isn’t it – why don’t we prevent egregious harm when we really do know what works?

      Thank you for your kind words, as well.

      Like

  2. The Individuals with Disabilities Education Act (IDEA) recognized that exposure is not the same as access. Any student can sit in a classroom and be “exposed” to the content. Not every student can “access” the curriculum without specified services and accommodations, i.e., the Individualized Education Plan (IEP). Every citizen is covered by the Constitution but not every citizen has equal access to the law, i.e., attorneys and the court system. Native Americans in North America have neither unfettered tribal sovereignty or citizenship. I doubt there has been a treaty or act that hasn’t left indigenous people in North America holding the short end of the fairness stick. This is my long winded way of saying the law will always benefit the lawmaker.

    I hope your cataract surgery goes well and that your eyes heal quickly, Carol. Peace to you.

    Liked by 4 people

    1. I appreciate your comments and the information you shared about IDEA based on your expertise as an educator, Jeff. The distinction between exposure and access to education is so crucial, as Kozol’s work, Savage Inequalities, makes so compellingly clear.

      In terms of the freedom to exercise full tribal sovereignty, there’s a long way to go – for many reasons…

      (Thank you for your kindness, Jeff. I appreciate it a great deal.)

      Like

    1. Thank you for your kindness, Aquileana.

      I appreciate the link to the post that describes Aristotle’s concept of justice. What I found interesting is his focus on awards the equitable distribution of society’s rewards and goods. Certainly this can be viewed as a positive foundation for European notions of justice. Perhaps he mentions the importance of relationships in other works. The (ideal) tribal concept views “crime” as harm to the connections that bind people together rather than the unequal distribution of society’s rewards and acclaim. Sharing and generosity were taken for granted as necessary for the survival of the community – which was also essential for individual survival in challenging environments. Those who viewed things or acclaim as more important than people created disharmony and threatened the survival of all in the community and their balance with their environment. I’d love to hear more about your views.

      Like

      1. I pretty much agree with you when you state that crime might be considered as harm to the connections that bind people together rather than the unequal distribution of society’s rewards and acclaim. I wouldn’t say it is restrictively a tribal concept… Going further, Hans Helsen in his book Pure Theory of Law Said that positive-legal order can be identified when there are norms that regulate their own creation through a process of authorisation and, in addition, the order itself is ‘by and large effective’… This the idea is that the legal order as a whole is coercive… And somehow laws are always proportional punishments to certain behaviours… That´s why Justice is always proportionally restorative somehow as it tends to achieve a balanced state of things.
        All my best wishes to you, Carol, Aquileana 🙄

        Liked by 1 person

        1. Thank you for this important ongoing dialogue, Aquileana 🙂 I know I will need time to think more about your important ideas, and maybe the following thoughts miss the mark a little when speaking about proportional restorative justice, but I think they’re important questions to consider nonetheless.

          I wonder if Helsen writes about the importance of decision making processes used to develop laws? Small, close-knit societies have the luxury of using consensus, making sure that everyone is heard and has a final say on policies or laws that are enacted. Democracies, even when they do provide meaningful opportunities for citizen engagement, only need to please slightly more than half of a given society, often resulting in continuing divisions and frequently shifting factions in power. Yet when governing large, geographically dispersed, and heterogeneous populations democracy is better than dictatorships, oligarchies, or feudalistic rule (aristocratic or corporate).

          Perhaps the most important question is not who makes the laws, but who benefits the most from the laws that are enacted, and who suffers most? And why are such inequitable situations tolerated? Ursula LeGuin raises this question in her thought-provoking essay: “The ones who walk away from Omelas” (http://www.kareyperkins.com/classes/445/omelas.pdf).

          Liked by 1 person

  3. “Each individual’s role or mission was regarded as good, a life mission, and no role or mission was considered better than another” I love this, Carol! Our system is so flawed, sadly. Would that we could have communities that valued each and every person and what they can bring to the whole. There would be more love and compassion. Thank you, again, for your inspiring and thought provoking words.

    I wish you a speedy recovery, peace and love. Looking forward for the next installment when you are well. Bless! Barbara

    Liked by 1 person

  4. Carol, Just read this and I know your surgery went well. You’ll probably be reading and writing sooner than you thought. This has become quite a common surgery and I know many people who’ve had it and their sight is greatly improved. I just heard a report on NPR yesterday about a program being started to help women who have been coerced or forced into prostitution. It removes their criminal history and helps them start new lives. In the black community it is an old “joke” that justice in America is just us.

    Liked by 1 person

  5. Carol!… Just a note to second your statements on your comment back to me above… You are right when you say that Small, close-knit societies have the luxury of using consensus and that even democracies provide meaningful opportunities for citizen engagement… Nevertheless in a major scope I think that Kelsen’s model is woefully a reality nowadays… I’d say that Capitalism tend to segregate this sort of democratic methods you mentioned above and I think that judiciary systems are most times coercive as if a criminal tone was covering them from above… Mine would be perhaps a more extreme vision, but I have no doubts that even Civil Law is related to the idea of punishment, and that would be just an example… Best wishes!, Aquileana ⭐

    Liked by 1 person

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s