Recent studies by the UCLA School of Law Native Nations Law & Policy Center suggest that American Indians do not believe that federal, state or tribal courts are fair. Reservation residents believe that federal courts are too far away, discriminatory, and culturally non-sensitive. Federal, county, and state managed courts don’t give much attention to indigenous cultures and the ways tribal communities may prefer to carry out justice.
Justice in most indigenous communities is achieved by restoring good relations between the families or kinship groups involved in a disturbance. In some tribal traditions, balanced social relations were restored through material compensation, ceremonies, banishment, or sometimes by ritual blood revenge—an exchange of a spirit for a spirit. After restitution was made the parties cease hostilities and life returned to normal. Families may remember the incident, but the families did not take action against the other.
Federal, county, and state courts usually depend on adversarial procedures of argument and interpretation of evidence. A main purpose of the American criminal court system is to establish guilt and pass out punishment. Many tribal communities avoid the American justice system whenever possible since they do not want to see their tribal members taken away and sent to prisons where they are separated from their families and the tribal community.
American court judges and prosecutors believe they are applying the same law and punishments to all American citizens, including to American Indian perpetrators and victims who might appear in their courts. A primary value in the American justice system is fairness, or the equal application of procedure and justice before the law. Most American court and police officials believe it is a primary duty to see that all American citizens are treated equally, and all persons who are accused of crimes are given fair trials and given due punishment if convicted.
Tribal forms of justice were based on negotiated settlements and individual and community reconciliation. In recent decades many American courts have increasingly adopted negotiated and restorative forms of justice decision making. Nevertheless, American Indians feel they are prosecuted more often than non-Indians and receive less favorable sentencing. There is evidence to support the view that there are disproportionately higher numbers of American Indians in federal, county, and state jails. Court procedures, the adversarial method, and U.S. common law are not easily understood or reconciled with traditional tribal justice procedures and understandings of justice. Consequently, many American Indians do not believe that American courts are fair, respectful of tribal traditions and values of justice, and discriminatory.
While many reservation Indians prefer tribal courts and tribal police departments, tribal courts are also often seen as unfair, but on somewhat different grounds than federal, state, and county courts. While reservation residents say tribal courts are good at incorporating tribal culture and concepts of justice, they tend to be severely underfunded and prone to interference from tribal government and/or influential families or political leaders. When tribal members believe the tribal government is not able to deliver fairness and justice because of lack of resources or political influence, then tribal members feel unsafe and dissatisfied with tribal government.
Reservation communities are dissatisfied with the administration of justice. Reservation residents express dissatisfaction with tribal, federal, state and county courts and police through reluctance to participate, cooperate, and support justice institutions. Recovering healthy and strong tribal communities require not only establishment of tribal leadership and sovereignty, but also government sound practice and community belief in the fair and just administration of government and court decisions.
Some of the most important services governments provide are justice and fairness. Indian reservations are subject to varying degrees of federal, state, and tribal justice administration. Reestablishing justice and fairness throughout Indian country will require greater cooperation, cultural understanding, sharing of resources, accountability, and agreement about what justice means from tribal, federal, state, and county governments and justice agencies.