Special to Indian Country Today
ST. PAUL, Minnesota — When a Native American activist tipped over a Christopher Columbus statue in front of the Minnesota State Capitol last spring, prosecutors faced a dilemma. How do you fairly try a man who broke the law but also stood up against injustice?
They found an answer using ancient tools: Peacemaking Talking Circles, a traditional conflict resolution practice that is regaining favor in state and tribal courts.
The Columbus statue had graced the Minnesota State Capitol grounds for decades. And for decades, Indigenous people had objected.
“The Capitol belongs to all the people. It was in fact called the People’s House,” said Beverly Bushyhead, an equity strategist, circle facilitator and citizen of the Eastern Band of Cherokee Indians. “And yet this statue represented a symbol of only particular people. And so the Native community had been asking how to please remove this, how to please change this, how to please address this.”
It was, perhaps, no surprise when protester Mike Forcia, a citizen of the Bad River Band of Lake Superior Chippewa, toppled the statue in June as racial justice demonstrations erupted around the globe in the wake of George Floyd’s death at the hands of Minneapolis police.
Forcia, a longtime Native American activist, organized the June 10 rally at the State Capitol. He was charged with criminal damage to property.
What came next, though, was something of a surprise. Instead of throwing the book at Forcia, prosecutors opted for a restorative justice process that involved convening three traditional Peacemaking Talking Circles. The circles would “explore the underlying reasons for and the impact of the actions that led to the charges in this matter, and to bring forth value-driven recommendations from the community about what would be the most meaningful way to restore harms resulting from these actions,” according to court documents.
In the end, the consensus recommendation was for Forcia to complete 100 hours of community service, admit he broke the law and acknowledge the harm he caused to members of the Italian-American Community, who took pride in the statue. Forcia also apologized to members of the Native American community who disagreed with his tactics. He could not be reached for comment by Indian Country Today.
The state also made concessions.
Citing the perspectives that emerged from the circles, prosecutors admitted that the “violence, exploitation and forced assimilation that has been inflicted upon Native people” caused trauma that is still palpable and that “the impact of those harms is largely unrecognized by or unknown to the dominant culture.” Further, prosecutors admitted to “the failure of public systems” to address decades of calls to remove the statue.
The Peacemaking outcome was hailed by both sides.
“I expected a more traditional criminal justice model and we didn’t get anything like that,” said Jack Rice, a member of the Luiseno tribe and the attorney who defended Forcia. “I’ve handled thousands of cases in this county and the fact that we did something fundamentally different was exciting.”
Ramsey County Attorney John Choi agreed.
“I think it’s one of the best tools that we have to transform our current American system of justice,” Choi said.
‘Disparate voices can be heard’
U.S. courts are modeled on their British forebears and employ an adversarial system designed to pick winners and losers and punish wrongdoers.
“The idea is that everybody puts on their best case and then a neutral third party decides what’s best for the outcome, evaluating the two best cases,” said Brett Lee Shelton, Oglala, a staff attorney with the Native American Rights Fund. “Well, sometimes, fighting against each other isn't the best way to resolve an issue. Maybe most times.”
Often at the end of a case in Western courts where one side is declared the winner or, in a criminal case, the defendant is sentenced, there are still tensions among the parties or in the community. Traditional Peacemaking processes strive to identify — and address — those tensions.
“The beauty of using this ancient circle process is that all of these disparate voices can be heard, they can speak and everybody has to listen to them,” defense attorney Rice said. “I think that’s critical, because at the end of the day what we need to do is bind ourselves together as a society.
“The (Western) criminal justice system simply does not do that.”
In tribal courts, traditional Indigenous conflict resolution practices were shunted aside when the federal government imposed Western legal systems. But the ancient ideas are reappearing, spurred in part by an initiative run by attorney Shelton at the Native American Rights Fund.
“Our ancestors somehow got along for centuries and millennia before and dealt with problems that came up between humans, and continued to live there in community,” he said from his base in Boulder, Colorado. “So let’s take a look at how they did that and see if we can institutionalize that process.”
Shelton has been helping tribal courts set up Peacemaking programs for a few years and says momentum is building in Indian Country to restore the traditions.
“Seems like every year we get more and more inquiries at our project from tribes that are ready, willing and able to start picking it up,” he said.
Dual process endures in Southwest
For a beacon, tribes look to the Southwest where Peacemaking practices never faded away.
Roman Bitsui, a Navajo citizen and coordinator of the Navajo Peacemaking Program, said that traditional practices and values stayed part of the legal system in the nation even after the Western court system was imposed in the early 20th Century. In the 1980s, the Peacemaking process was more formally adopted and today has grown to become a parallel entity that works in concert with the Western system.
“The Navajo Peacemaking process has always been with us,” Bitsui said. “We have a dual process — one Western and one traditional.”
And, like spreading ripples in a pond, Peacemaking circles are beginning to show up in state courts, too. One Michigan judge has employed them since 2013 and thinks they can play a large role in reforming judicial systems everywhere.
“I have no doubt it’s where we need to go,” said state Court Judge Judge Timothy P. Connors in Washtenaw County, Michigan. “I’m so thankful for the resilience of our Indigenous communities that kept this alive and that they are growing it and bringing it back and willing to share. It’s phenomenal to me. I’m overwhelmed by the generosity that they would share this wisdom with a state court judge.”
Connors is working to spread Peacemaking practices to other jurisdictions — and within his courtroom.
“It works in family court, in civil court, in probate court and we’re just now got a proposal to start putting into the adult criminal docket,” he said. “When it works, it’s truly transformative instead of transactional…
“My Native colleagues and friends say, ‘How do you explain it to state court judges?’ and I say, ‘We need to judge less and smudge more.’”
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