National Indian Country Clearinghouse on Sexual Assault

EvidenceThe tribal justice system differs greatly from the Anglo justice system.  Whereas the Anglo tradition focuses upon the rights of the perpetrator, the Native, traditional system focuses upon the rights of the victim and what is best for the tribe.  By utilizing custom and tradition, tribal courts can reach culturally appropriate judgments that can help the victim more than a punishment rendered against the perpetrator utilizing Anglo-tradition could.

 

For example, Native communities have long recognized that violence committed against an individual also has great consequences for the community at large. 

 

left barVictims, unlike in the Anglo justice system, were not expected to stand silently and alone throughout the dispute resolution process. Rather, in traditional tribal communities, the victim and/or her representative(s) normally had input into the processes as well as in to the type and severity of consequences that the perpetrator would face.

 

In the Matter of the Interest of D. P., a Minor, 3 Nav. R. 255, 256 (CR Dist Ct. 1982) describes the application of Navajo custom and tradition to punishment and sentencing:

 

The Navajo tradition recognized that the central ideas of punishment were to put the victim in the position he or she was before the offense by a money payment, punish in a visible way be [sic] requiring extra payments to the victim or the victim’s family (rather than the king or state), and give a visible sign to the community that wrong was punished.  The offender was given the means to return to the community by making good his or her wrong.  Surely this is a far better concept of justice than to leave the victim out of the process of justice and leaving the victim with not [sic] means of healing the injury done.

 


Another way that traditional tribal courts differ from Anglo courts is that there is not as much emphasis placed upon formal, legal training.  Instead, the focus is upon the right person to assist and stand with the victim in court.  Many tribes allow non-law school trained persons to practice law in their tribal courts (including victim advocates, law students, and community members). Formal or informal representation of a victim as her legal counsel in criminal proceedings may be allowed under tribal code provisions or by arguing that, under custom and tradition, victims were traditionally provided with support and a voice in all conflict resolution proceedings. Clerks of the court for each tribal jurisdiction can provide information on admission to practice law and can also direct advocates and others on where to locate rules of court, tribal codes, and other materials helpful to representation.

 

Representation of victim rights in tribal courts may entail filing formal notice of appearance as the victim’s counsel. Included in the notice of appearance can be a request to receive copies of all motions, filings, and orders in the case.  Practitioners may wish to alert the court in their preliminary filing that they (and/or or they victim) seek permission (under the tribal code or under custom and tradition) to file motions with the court and to make arguments on behalf of the victim as to conditions of release, sentencing, restitution, any motions to continue a trial, and plea agreements.

 

Furthermore, since time immemorial, American Indian/Alaska Native victims and their supporters have provided significant input in to traditional dispute resolution processes.  Historically, restitution to make the victim, her family, her community, and the tribe as whole as possible was a top priority.

 

Restitution was not strictly limited to monetary payment or the exchange of goods for the benefit of one individual.  There was the additional recognition that an injury to a victim reverberated throughout the community.  Harm caused to a victim had very real effects on family who were dependent upon an injured or murdered victim’s support.

 

For example, in the United States Supreme Court case Ex Parte Crow Dog, 109 U.S. 557 (1883), a Lower Brule Sioux man murdered another Indian man named Spotted Tail.  Under the law of his tribe, Crow Dog was required to hunt for (and otherwise financially support) the victim’s dependent relatives as punishment for the murder. The facts of the case, recounted in careful detail, clearly illustrate that the Lower Brule Sioux recognized a wider class of people as “victims” than under Anglo law.  All persons dependent upon the murdered man for their sustenance were considered victims.  One could therefore make an argument, based upon custom and tradition, that compensation and restitution for an injured Lower Brule Sioux victim in tribal court should cover all lost wages and lost labor used to support dependents (whether or not they are members of the victim’s nuclear family).

 

National Indian Country Clearinghouse on Sexual Assault, a project by the Southwest Center for Law and Policy © 2013

This project was supported by  Grant No. 2011-TA-AX-K045 awarded by the Office on Violence Against Women. Points of view in this document are those of the author and do not necessary represent the official position of the U.S. Department of Justice. All rights reserved. | Privacy policy