Indigenous Roots of restorative justice

This is a brief overview of what I’ve read about indigenous[1] peoples’ practices of justice. It is in no way representative of the many diverse native cultures and faith traditions from which restorative justice takes root. 

           Restorative justice is not new. Well, the name is new, and its practice in the Western world (the colonized Western world) was not born until the 1970s with the “Kitchener experiment” in Ontario, Canada. This “experiment” was conducted by a probation officer who arranged for two teenagers to meet directly with the twenty-two people whose property they had vandalized which ended with the teens agreeing to restitution.[2] But, the roots of restorative thinking can be found in various faith traditions and indigenous cultures dating back centuries.Therefore, we will be diving into the justice practices of a few indigenous peoples’ communities to get a feel for what restorative justice looks like when practiced as a lifestyle rather than an alternative to the United States’ criminal justice system. To do this, we will be following some of the findings from Robert Ross’s book, Returning to the Teaching: Exploring Aboriginial Justice, in which he lays down some underlying themes from his time as a non-native person speaking with Aboriginal people, mostly the Cree and Ojibway First Nations in northwestern Ontario. 
          The first principle that Ross describes is that "justice involves far more than what you do after things have gone wrong ... instead it involves creating the social conditions that minimize such wrongdoing."[3] A strong healthy community is the bedrock to justice in many indigenous communities, while the Western world might see it merely as a response to wrongdoing. Robert Yazzie, a retired Chief Justice of the Navajo (also known as Dine)[4] Nation Supreme Court, states, “I always say that America responds to crime after the fact, not before the fact.”[5] Therefore, most of the justice work done by the Navajo is rooted in prevention meant to maintain harmony and balance in the community. 
           Leanne Douglas is the coordinator of the Biiaaban program that is run in the Mnjikaning First Nation community in Ontario, Canada, which works with people who have committed wrongdoing and the people who have been affected by wrongdoing. She states, “If somebody was acting out and not behaving properly, it meant that they were out of balance and that they needed to be brought back into balance. When we talk about balance and harmony within the community I think it comes from that.”[6] By making the principles of balance and harmony the first priority of justice, more time and resources are spent strengthening the community rather than responding to breaches of relationships.
          The second principle laid down by Ross is that, “Aboriginal teachings speak of all things in the universe as part of a single whole, interconnected through relationships. The whole includes the physical and the spiritual. Realizing the interrelationships among humans, the Earth and the spiritual builds healthy relationships, which are the foundations of a harmonious society.”[3] Looking at the world from the communal rather than the individual is integral to many aspects of some indigenous folks’ experience, which goes directly against the individualistic philosophy of the colonial Western world. Judge Joseph Flies-Away, formerly chief judge for the Hualapai Tribal Court from 1996 to 1998, states that when someone commits a criminal act, “People say, ‘He acts like he has no relatives” which means that the purpose of law,then, is to bring people back into the fold.” He continues, “People do the worst things when they have no ties to people. Tribal court systems are a tool to make people connected again.”[5] As James Zion, a colleague of Robert Yazzie who has been involved with Indian law since 1975 states, “People are not simply individuals in society. Everyone owes special obligations to others.”[5]
          The third, and the final principle we will be examining, that Ross summarizes is, “According to traditional teachings, people will always have different perceptions of the truth and the events that occurred. From this perspective, the truth has more to do with each person's reaction to and sense of involvement with the events in question, for that is what is truly real to them. Thus, objectivity is an illusion and the question of the seriousness of the crime a futile one. The focus of justice, then, is to address the harm done and the causes of the wrongdoing, rather than the severity or the details of the offence.”[3] This is a hefty principle, but each element in it shows how fundamentally different certain types of indigenous peoples' justice are from the adversarial criminal justice system of the West which makes a point of finding the facts and punishing accordingly. This principle also draws from the Navajo concept of K’e, or respect, which is essential to the peacemaking process and what Justice Robert Yazzie states, “means to restore my dignity, to restore my worthiness.”[5] From this perspective of restoration of dignity, we honor all those involved in the justice process more than we honor some agreed upon “truth”. 
          What struck me most during my (very) short time researching various indigenous peoples' systems of justice was that those I've found are WAY more hardcore than the United States’ criminal justice system. People tend to view restorative justice as a fluffy, altruistic, or even non-realistic alternative to the “tough on crime” criminal justice model of the United States. But this system is not about taking responsibility, as, for example, I learned at temporary staff member Meg Mott’s talk on the Sixth Amendment that more than 95% of felony charges end in plea bargains simply because it’s easier for the defendant than going to trial. No one in our “tough on crime” system is being forced to reckon with what they have done in any real way, therefore there is no accountability and recidivism is high.
          Leanna Douglas, the coordinator of the Biidaaban justice program, summarizes why indigenous justice is much “tougher” than the criminal justice system: “When you go to the court system, people in the community really don’t know what’s going on there. But when it’s public and in the community then everybody knows and it can act like a community watch program. So people know that people are watching them and that they need to behave properly. [The people who commit the wrongdoing] are frightened about facing the community. They took responsibility for what they did and apologized, but it was definitely a frightening experience—a lot more frightening than standing in court and not having to say anything.”[6] The United States criminal justice system allows the sense of isolation and individuality to flourish while both Aboriginal and restorative justice creates an environment where accountability is borne out of a recognition of one’s responsibility to the community of which one is apart of. 

Reference Section 

[1] The words Aboriginal, native, indigenous, and indian are used in this blog post to describe folks that belong to communities who have lived on their respective lands before Western colonization. Most of my use of these words come from the articles I reference, but it’s important to recognize that different folks have different words they use to describe their people. 

[2] Staff, IIRP. “3. History.” IIRP, www.iirp.edu/defining-restorative/history.

[3] Leung, May. “The Origins of Restorative Justice.” Www.cfcj-Fcjc.org, 4 Apr. 2001, www.cfcj-fcjc.org/sites/default/files/docs/hosted/17445-restorative_justice.pdf.

[4] Navajo is a name given to the Dine Nation by the Spaniards and the Federal government. The nation voted on changing the name to Dine in 2017, but ultimately decided to stick with the name of Navajo to not confuse community members. This information was taken from this article: https://www.indianz.com/News/2017/04/19/navajo-nation-council-rejects-bill-to-ch.asp. 

[5] Mirsky, Laura. “Restorative Justice Practices of Native American, First Nation and Other Indigenous People of North America: Part One.” IIRP, www.iirp.edu/news/restorative-justice-practices-of-native-american-first-nation-and-other-indigenous-people-of-north-america-part-one#endnote1_to.

[6] Mirsky, Laura. “Restorative Justice Practices of Native American, First Nation and Other Indigenous People of North America: Part Two.” IIRP, www.iirp.edu/news/restorative-justice-practices-of-native-american-first-nation-and-other-indigenous-people-of-north-america-part-two.