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When Justice Doesn’t Work: A NARF Attorney on Restoring the Circle

Brett Lee Shelton is an Oglala Lakota attorney with the Native American Rights Fund with a challenging portfolio.

Most Americans can turn to the courts for remedies to injustice. However, the mainstream justice system may not provide comfortable solutions, and sometimes isn’t even available, for Native people, said Brett Lee Shelton, an Oglala Lakota attorney with the Native American Rights Fund, a nonprofit law firm that has defended the rights of Indians and tribes for 45 years.

Shelton gives examples from his three specialties at NARF—boarding school healing, sacred sites protection and peacemaking-based justice systems. He notes that some boarding school survivors have won court cases for horrific abuses suffered, but others have been stonewalled. After Natives sued the Catholic Church in South Dakota, the state legislature stepped in and, in 2010, passed a law that allowed the courts to toss out most of the lawsuits. In the matter of sacred sites, safeguarding them through litigation is costly, he says, and may involve making the sites public and thereby attracting visitors who inflict additional damage.

Finally, says Shelton, mainstream justice produces winners and losers: “Someone always walks away unhappy.”

At NARF, Shelton is working with indigenous approaches to these issues that promote healing and sustain traditional lifeways while they resolve controversy. ICTMN talked to him about his challenging portfolio:

How does an indigenous justice, or peacemaking, system work?

Tribal people have resolved disputes since time immemorial. They gathered in a circle. They took into account the opinion of anyone involved. They weren’t bound by rules that, for example, prevented a certain person from testifying. In the mainstream system, which was given to the tribes as part of the Indian Reorganization Act, two parties fight before a supposedly neutral party who sits above them. The physical message is so different.

NARF did a survey in 2011 and found that Native people want culturally appropriate justice systems, and that to get there they need training, technical assistance, models from communities with programs in place, information on conferences and funding, and the like. So we’ve done training and constructed an Indigenous Peacemaking Initiative website with these resources.

You are Oglala and your law degree is from Stanford University. How did you resolve the opposing messages as you trained?

When you grow up with a tribal background, you carry values that you have to set aside when learning a very different system. But you don’t forget. When I worked in the mainstream court system, I knew I was good at it but felt I wasn’t benefitting everyone because the rules are there to create victories rather than really solve problems.

How can boarding school survivors find a benefit?

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In our boarding school project, we focus on healing, not money damages. One of the first steps in any reconciliation is truth-telling. The aggressor admits responsibility, and that validates the survivor’s experience. We are working with the churches that ran the schools and pushing for the United States to admit and document what it did to Native people, the impact on them and continuation of that impact to this day. The churches seem to want to figure out what to do, so we’ll see how much they decide to do.

A similar process has gone on in Canada, where the government consented to be sued and, with the churches, established a Truth and Reconciliation Commission. Here in the United States, the National Native American Boarding School Healing Coalition formed as a result of a conference in 2011, and is working towards an end goal of locally-controlled and designed healing models. It’s an ongoing process.

What is known about the continuing shocks of the boarding school experience?

It was a traumatic experience for most children, including physical, emotional and sexual violence and a concerted effort to strip away their culture. The resulting trauma is transferred to succeeding generations in three major ways. First, someone doesn’t know how to parent because they’ve never had a healthy example, and they pass on that lack of role modeling. Second, a person picked up destructive behaviors that influence his or her life and that of the community.

Third is something scientists are learning more about, which is epigenetic transfer, or transfer through genes whose function is altered. This happens because trauma has a profound physical effect, changing the way blood and brain chemistry works at the genetic level, and this can be passed on to a child.

RELATED: Trauma May Be Woven Into DNA of Native Americans

However, it’s important not to be fatalistic. Through healing, we can learn to switch off the damage. The most important protective factors for Native people, shown in numerous scientific studies, are our cultures. Boarding schools were there to de-Indianize our ancestors. So when we restore ourselves to our cultures, we start to undo that.

How do you approach sacred-sites protection?

A small number of federal agencies have jurisdiction over land on which most sacred sites sit. Some do well and some less so. In negotiations, we’ve been able to point out to an agency’s staff in one state that their colleagues in another state have come up with ways to accommodate the tribes. So we can show them that as an agency, they already know what to do.

One thing anti-protection groups often claim is that federal protection of Native sacred places is “establishment.” That is, it establishes a state religion, which is unconstitutional. However, we point out that this misconstrues the Constitution and what Native people are asking for. We want accommodation for our cultures, not endorsement of our religions. We think this approach is economical—it avoids expensive litigation—and appropriate to our indigenous way of thinking and doing.

Our goal here, as in other areas, is making everyone whole.