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Consensus Among Government and Tribal Justice Systems

Many tribal courts use traditional Native American procedures when adjudicating civil and criminal cases, that is not the case in mainstream courtrooms.

In this country, all citizens are equal under the law—in theory. In Indian country, however, the courts, police and incarceration facilities are multicultural, multiinstitutional and multijurisdictional.

That cuts both ways.

The arrangement itself is complex. Tribal governments work within either federal or state criminal jurisdictions. But all too often, tribal communities don’t share their concept of justice.

Take the case of Oliphant v. Suquamish Indian Tribe (1978), in which the U.S. Supreme Court prohibited tribal courts from hearing cases involving non-Indians. The decision also said that U.S. citizens could be subject to culturally alien legal proceedings and concepts of tribal justice. A generation later, that proviso still holds. Today, when addressing criminal offenses, many traditional indigenous communities try to provide compensation or restoration of well-being to the victim’s family or kin. The idea is to heal the community and discourage further transgressions.

Similarly, many tribal courts use traditional procedures to hear and adjudicate civil and criminal cases. For example, the Navajo court system tries to apply standard common law whenever it can.

By contrast, most personnel of the U.S. justice system—police, judges, jailers and so on—aren’t generally trained in tribal cultural ways of jurisprudence. The result is that their legal rules, policing and incarceration methods must often work side by side with tribal methods. When you consider that there are hundreds of Indian nations, many retaining myriad aspects of tribal cultural forms and notions of justice, it’s no wonder that mainstream court, police and corrections officers usually can’t fulfill the cultural needs and expectations of Indian community members.

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Not surprisingly, most U.S. justice officials tend to favor traditional court, policing and corrections methods over their tribal alternatives. For their part, tribal communities have sought alternate or traditional methods of conflict resolution. Elder-led sentencing circles, peacemaking courts, wellness and drug courts, and restorative methods to manage crime and civil issues are among these methods. In a sense, tribal communities have tried to distance themselves as best as possible from the usual way of dispensing justice.

Unfortunately, this split in approach is mirrored in a split in perceptions. Recent research from the UCLA Native Nations Law and Policy Center suggests there is much disagreement about the quality of justice on the rez. Reservation justice employees feel their communities aren’t well-served, whereas federal and state justice employees think they are. Reservation justice officials also think the present system is less fair, less cooperative, less culturally compatible, less respectful, less funded, less humane and less well-managed than do their federal and state counterparts.

Tribally managed justice workers also disagree fundamentally with federal and state workers about the purpose, goals and outcomes of the law. That’s ominous: Justice institutions, after all, can’t expect to be stable or functional if tribal and nontribal court, police and corrections officers don’t have common ground, goals and interpretations of outcomes.

Where does that leave us? Obviously, justice in Indian country cannot satisfy tribal communities if reservation residents don’t feel that their understanding and expectations of justice are realized or implemented in practice. The multicultural, multiinstitutional and multijurisdictional character of Indian country must be recognized and respected. Going forward, the lack of consensus on key issues of public safety will have to be fully addressed before significant progress is made to ensure that tribal communities have satisfactory justice services.

The task is vital. Without some kind of common ground, an unholy, downward cycle is likely to emerge that exacerbates reservation resident dissatisfaction and conflict with contemporary justice institutions. The road to more satisfactory delivery of justice services to reservation communities lies in developing and implementing mutually agreeable understandings of culture, fairness, program outcomes, government-to-government cooperation and concrete recognition for tribal sovereignty.

And now is the time to start.