Tribal Justice: Legal System of Restorative Healing

Recently, a Texas judge struck down the Indian Child Act of 1978 as unconstitutional on the grounds that it violates the equal protection guarantee found in the Fifth Amendment. This landmark law was interpreted to give racial preference to Native American families in adoption proceedings of Native American children. This ruling potentially jeopardizes tribal nation sovereignty, as the dispute disregards the political nature of separate nations in a race-based claim. There are 573 federally recognized tribes, most with operating tribal courts that make judgments based on restorative justice and tradition.

 

On Oct. 10, Native Student Programs and Political Science Department hosted a screening of the documentary Tribal Justice, while hosting Judge Claudette C. White, who was featured in the film. Students and faculty from the University of Redlands and students from Sherman Indian High School attended the event in the Orton Center.

 

The documentary follows two Native American judges from two different tribes in California, Abby Abinanti and Claudette White. The film follows three cases, both in and out of the courtroom, to display the restorative nature of the trial court, in hopes to illuminate that there are answers other than incarceration.

The documentary film Tribal Justice was screened.

Judge Abby Abinanti is the chief justice of the Yurok tribe and was the first Native American woman to pass the California bar exam. Justice Claudette White served as the Chief Justice of the Quechan tribe for 11 years. In 2018, White began to serve as Chief Justice to the San Manuel tribal court.

 

As sovereign nations, most tribes have their own courts based on value and tradition. Within nations, there are social ills and often limitations to resources, but instead, they focus on healing and resolution for their communities rather than punitive measures and incarceration. It was engraved how important it is to not have justice done by strangers, but through internal leadership. The goal of the documentary was to provide examples of how tribal court incorporates tradition into judgments for the state courts.

 

Native Americans have the highest usage of methamphetamine of any group in America. Through the restorative processes of the Wellness Court, a unique system to the tribal courts that specializes in rehabilitation for alcohol and drug abuse, in efforts for individuals to become active members of their community. This court connects with tradition through practices of singing, and upon graduation, they receive an acorn.

 

In the Yurok tribe, Judge Abinanti worked closely with a man named Taos Proctor, who had struggled with addiction most of his life, particularly to crystal meth. He is on his third strike conviction and is tentatively facing 25 years in prison. Instead of routing him back into prison, Abinanti worked with Proctor to bring him on a clearer path. Proctor was able to find work, and become a leader in his community. He conducted AA and NA meetings. Through the accountability of the Wellness Court, Proctor was able to have an honest relationship with Judge Abinanti which led to his sobriety and strengthening of his family.

 

Down in Southern California, Judge White hears two cases regard child care. One-third of all Native American children are in state care. White is able to successfully reunite 9-year-old Dru who struggles with mental illness with his family through the Indian Child Welfare Act. A more personal case for Judge White was Isaac Palone who is White’s 17-year-old nephew. Palone was in a group home as his parents were unstable, and he was adopted into parental guardianship by White to give him structure and a caring home. Palone hopes for the best, but is facing two felony charges and ends up incarcerated, one of many youths in the prison pipeline.

 

The film tells trials of empath- showing the strength of the tribal court and the importance of restorative justice for tribal nations.

 

Following Q & A with Judge White

Q: What do you think are some foundational differences between tribal justice systems and non-tribal justice systems?

 

A: Most tribal processes take a less punitive approach, meaning we are not trying to punish them, more so to help them. So we would rather offer wellness programs, other services, and other forms of punishment. Maybe it doesn’t look like punishment, its incorporating culture and tradition back into their life; if that is something they are interested in. Or maybe it’s a mental health assessment if there are underlying issues. Less just punishing people and locking them up. In my time in tribal court, I’ve dealt with a lot of people who come before me and sometimes they are people who are not able to stand trial, mental health deficiencies. And at the same time this person might have a huge caseload in state court they have been prosecuted over and over again, jailed, but rather identify their issues and try to help them, they are just locking them up and punishing them. We see mass incarceration in the United States because that’s their solution. Less restorative justice and helping someone rehabilitate so that is a huge difference in tribal court settings, we are looking at alternatives opposed to punishing people. At the same time we hold them accountable, they are still going to be a part of our community and just warehousing someone temporarily doesn’t change behavior into a positive position as they are going to come back into our community.

 

Another is in the tribal setting we don’t always have kids in our courtroom. Our families do want children to be present as they want to know who it is that is making decisions for them, some want to say their peace or testify or hear what is going to happen. Sometimes isn’t age appropriate and we won’t allow it. Other times they are at an age where they can comprehend it and we will allow them to a part of that process.

 

Q: If you could communicate to state and federal court judges or people who don’t know a lot about tribal courts, what would be the top takeaways you would want them to know about tribal courts?

 

A: Understand that a different way of justice does not mean its a lesser way, one of the difficult things we have as tribal judges are getting state courts to recognize decisions and issues we deal with in tribal court as just as legitimate as the work they do and often they undermine and don’t give credit to the tribal court they deserve. They second guess the work that is being done, they often don’t know that the judges are law trained or competent. And so they don’t give tribal courts a lot of credit in terms of the judgments they are making.

 

Secondly, with Indian children, we work things differently in tribal court, and we make greater efforts to allow families to reunify and extend time to allow families time to put their family back together than they do in state court because we believe children should be with their families as opposed to just removal in the state court system. You might have anywhere from six months to a year and then its termination of parental rights. In a tribal court system, we might have that extended and maybe doubled that time frame depending on the circumstances… Rather than sever parents rights we might keep the child in guardianship to ensure the health, safety, and welfare of that child, but ensure the parent can be part of the child’s life. Those relationships are critical and should be long-lasting and many times in state court it is just termination and that relationship ends, and I would want them to see when dealing with Indian children effort needs to be made for reunification.

 

Q: What is your role as a woman, as a chief justice in tribal communities?

 

A: It definitely has its challenges being a woman and not looking like people would expect as a judge. I don’t mean to minimize res status, but I’m resed out on my reservation. I know a lot of you on Sherman might associate with that. That’s a challenge being from the reservation, and having those stereotypes and biases from academic institutions I attended. I remember the first time I went to school, it was even a challenge to get to school, even my own mother who I love dearly who has since passed didn’t even want me to go to college, or leave the reservation. She wanted me to stay home, told me I could get a job for the tribe. I remember as a young woman being told by my professors if I went back home I would never be treated the same, that they would never accept me to be the same, and I didn’t understand that. I definitely see the differences even in my own community, some people embrace you and others did not. They are intimidated by education and knowledge, they think you are coming here to change the culture and the way we live here to Western society, our people don’t always embrace that.

 

The challenge is to be tribal and committed to my culture and my people and then sell yourself to the world and be someone you don’t think you are, to be bold. These things are challenging, even more so as a woman. You heard me say in the film I am not immune to all the things that plague you on a reservation, alcohol abuse, drug addiction, all these things bad things you can think of on a reservation, I have not been immune to it and those things happen off the reservation. But coming from the reservation, we know our statistics are high dealing with those issues. I come carrying all that baggage with me and trying to find my place in the world. Being a young judge, I wasn’t an old white man, that’s the assumption for the public for what judges look like. I’m brown, I was younger, and that would be the mentality you don’t look like a real judge. I always had to work hard to speak better and step up my game so to speak in how I present myself because of those immediate barriers. I have found ways to work on it, step out of what you’re comfortable with. We are taught in many tribal communities to be too boastful or proud, be humble, show humility. But in the larger public you have to be things you’re not comfortable with. You have to figure out your home life and public life and that balance in between it, sometimes your own people are hard on you and call you a sellout and give you a hard time. It’s a challenge on both sides being a native woman.

 

Q: When did you know you wanted to go into law?

 

A: I didn’t want to, I was going into social work. But early on in my program, my advisor told me I was a bleeding heart and I started spending out of pocket and giving way too much time to the people. They told me to pursue another course of study because this would consume my life. I started pursuing criminal justice and I was able to transfer back home to a community college near the reservation and during my last year, and I served on the tribal council. I served two terms on the council. One of the issues we were fighting was a low-level nuclear waste facility in the Mojave desert, on ancestral lands that were spiritually traveled through for last ceremonial rights at the end of our life. It was important for us to protect and defend. And this project took 10 years to defend and we were successful. During this time, we would have to go to Washington DC to meet with our legislators and senators and staffers, and when we would go they didn’t want to hear from our tribal leaders, but from our attorneys and they wanted to hear from industry leaders, even though we were making spiritual and cultural arguments. Who best to hear from then the people being affected, but they didn’t care to hear from us. I went to law school to return to my people to be a leader.

 

Q: How do you carry the knowledge you have about people? How do you navigate the relationships you have with people?

 

A: It becomes a challenge, like I said, born and raised on my reservation. One of the things I try to do it and it’s difficult as you have to kind of ostracize yourself from the community, but I am very careful about the relationships I have with people. I keep a small circle of my immediate family and sisters, maybe a few first cousins. That means I have to decline birthday parties and baby showers because what if a certain person shows up and I know who they are connected to and they have a case before me and I don’t want confrontation or for them to show up to court and think you were just at a baby shower with them or on Facebook with them. I have to distance myself in that direct sense. But I am also very available to my community because I believe in large part that I need to be invested and committed to them, I participate in probably every tribal function there is. In the larger sense, I am out there to do things. I am a traditional person, so I have traditional responsibilities, which we separate from my professional work. I credit my community for allowing me to do that and not treating me differently in those traditional roles in what I do for the tribe in the professional capacity.

 

Corrections were run in this article to remedy the names of Taos Proctor and Isaac Palone. The first question in the Q&A was adjusted as well. 



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