The strength of a tribe is in its members, and when a significant number of tribal members are caught in the web of drug or alcohol abuse, the tribal community suffers from the loss of their knowledge, talents, and leadership. Many tribal governments have recognized substance abuse as a communityproblem for many years, and dozens have established alternative courts that would handle these cases outside of typical – and ineffective – criminal court proceedings.

For many years, tribes in some parts of the country have relied on a justice system that looks very different from the procedures that the U.S. borrowed from England. In English law, a controlled debate addresses a judge or a jury to determine the guilt and relative responsibility of an individual charged with a crime. The individual, if found guilty, is then punished with a fine or incarceration or both. The individual typically leaves the community for a number of years, and the person or the community that was damaged by the crime has no further say in the matter.

The traditional courts have a discussion with members of the community that was damaged, including the person who caused the damage. The discussion determines how, and under what circumstances, the individual can be returned to the community as a functioning and trusted member of the tribe. These courts have been called “Tribal Healing to Wellness” courts. 

The funding is needed to support the range of services – including addiction healing services – that the wellness court offers as part of its program. Individuals participating in the program must adhere to agreed expectations of the community, or face any of a list of consequences, including potential incarceration. 

Experience with these courts indicates that they are successful alternatives to incarceration that actually address the underlying problems that brought individuals to the attention of the court.

Updates

November 2014

The Tribal Law and Order Act of 2010 required the Department of Justice and the Department of the Interior to research tribal models of justice and eventually to implement and support them. In September, a working group released a report on the use and efficacy of a range of traditional Native American justice approaches for criminal and delinquent behavior.

Tribal justice methods contrast sharply with the United States justice system, focusing heavily on reconciliation and restoring harmony to the victim and the community. Often these processes include perpetrators rather than punishing them by isolation or imprisonment, especially in settling community and familial disputes.

The report names a number of problems inhibiting the justice systems on reservations, including logistical challenges of funding and implementation, high crime and substance abuse rates due to historical community trauma, and importantly the incompatibility of the U.S. common law practices with Native traditions and culture. Various tribal justice leaders were asked to outline their successes and challenges in applying tribal practices instead of European or U.S. practices.

For example, sentencing circles serve as an answer to the community; the tribal leaders noted the lack of tribal community input, especially from elders, in the U.S. court system. Sentencing circles embrace community involvement, rather than giving full sentencing responsibility to an appointed judge and jury. This tradition puts the onus of sentencing on community members who know the perpetrators and therefore the most effective sentence for them. In the Alaska State Court System, juveniles who commit crimes can be referred to the Kake Youth Circle Peacemaking for Circle Sentencing, a court run by fellow youth.

A traditional Haudenosaunee method of conflict resolution, Peacemaking, is also gaining traction in non-Native communities as an alternative to judicial courts and prison time. A community in New York has taken up this method in order to reduce unnecessary and ineffective incarceration.

The report stresses that there are numerous challenges to address, including the need to increase funding and to find ways to evaluate the judicial systems. On the whole, a greater effort will be made to find and support community-appropriate responses to crime, substance abuse and delinquency within Native American tribes.

May 2016

The strength of a tribe is in its members, and when a significant number of tribal members are caught in the web of drug or alcohol abuse, the tribal community suffers from the loss of their knowledge, talents, and leadership.  Many tribal governments have recognized substance abuse as a communityproblem for many years, and dozens have established alternative courts that would handle these cases outside of typical – and ineffective – criminal court proceedings. 

Known sometimes as “Healing to Wellness” courts – and sometimes by names in a native language – these courts take a more solid and reliable path toward solving the problems at the root of substance abuse. The Wellness Court convenes a team to work with the participant on the healing process.  Teams usually include both a prosecuting and defending attorney, along with people who can assist with the healing plan. 

Not just an idea.

The plan might include anything from health care to family counseling to job training and placement, along with the healing elements important to the participant and the particular tribe. Many incorporate native traditions of dispute resolution, appealing to traditional values and relationships within the family and community to find a way forward.  Some incorporate experiences that support culture and traditional identity, such as hunting, fishing, and subsistence activities, or spiritual supports found in sweat lodges, ceremonies and spiritual mentoring. 

More than 75 tribal Wellness Courts are now in operation, in nations that span 25 states.  (For more information, see the website of the Tribal Law and Policy Institute, which provides assistance to tribes establishing Wellness Courts.) 

Gradually, federal law is catching up

In 2010, the Tribal Law and Order Act was signed into law.  It included a mandate to the Justice Department to explore alternative courts to handle drug and alcohol abuse-related crimes.  The Justice Department convened an expert committee to carry out this provision. In 2014, the committee issued its report, “Native American Traditional Justice Practices” which recommended assistance to tribes to establish these alternative courts. 

In November 2015, Senators Tester MT and Franken MN introduced S.2205 to provide grant funding to tribal governments that wish to develop alternative courts for tribal members with drug and alcohol abuse problems, especially those who would otherwise end up in the criminal justice system.   In April this year, the Senate Committee on Indian Affairs held a hearing on S. 2205. 

The bill leaves considerable leeway to tribal governments to design their own programs to fit tribal values and objectives under the grants.  Unfortunately, the bill also insists that tribes adopt “graduated sanctions” for participants – including incarceration – if they fail to meet the requirements of the program.  Since punishment and retribution are inherently in opposition to the reconciliation and healing approach that has been well tested in the Wellness Courts, some tribes may find this requirement difficult to incorporate into their plans.