Reclaiming Native Truth,” a two-year collaborative project between the First Nations Development Institute and Echo Hawk Consulting, surveyed 13,000 Americans and found that most have minimal knowledge and many incorrect beliefs about Native Americans. For example, many respondents believe there aren’t many Native Americans left in America and report not knowing any native people. Presumably, that ignorance extends to knowledge of native court systems as well. There are 573 federally recognized tribes with diverse religions, customs, beliefs, values, dress and other cultural practices. Each also has its own government and court system as part of its inherent tribal sovereignty. Tribes and the federal government exercise concurrent criminal jurisdiction over native offenders who have committed crimes in Indian country—land that Congress has set aside for the use of natives under the supervision of the federal government.1
Prior to colonization, every tribe had a justice system and government that reflected its community’s unique values and structure. As an example, for the Cherokee, clan law governed behavior and practices, including marriages, protection from other tribal members, homicide, rape and incest.2 The law was not written, but instead recited by high priests once a year at a ceremonial event.3 In contrast to English law, an adversarial system of confrontation and dispute, Cherokee law was based on public consensus and restoring peace and harmony to Cherokee society.4
Today, there is a wide range of diversity in tribal court systems and some incorporate these traditional forms of justice. For instance, tribes may elect to operate at least one, or a combination of, legal institutions such as Courts of Indian Offenses (originally established by the Department of the Interior), inter-tribal courts (courts operated by multiple tribes), tribal courts (courts designed to enforce one tribe’s code and constitution), and traditional native justice forums.5 However, some traditional native justice practices and principles, such as the inclusion of medicine and ceremony, contrast with those found in American courtrooms. For instance, traditional native justice practices aim to bring the offending party back into balance with the community, including the offender’s and victim’s families.6 Thus, the victim’s family or members of the victim’s and offender’s community may be allowed to participate in determining the offender’s sentencing or punishment. This conflicts with the approach that American courts often employ—that the offender’s punishment and suffering should reflect the harm caused and that the offender must be held accountable to the state.7
It is important for psychologists who work in or study the legal system to acknowledge the differences between traditional native justice practices and the American system because native people experience some of the highest rates of incarceration and violence in the United States—38 percent higher than the national average.8 Between 1999 and 2014, the number of native people incarcerated nearly doubled.
Thus, it is incumbent on psychologists to examine natives’ comparative experiences in both court systems, and finally, to bring out of the shadows of invisibility the rich diversity of native tribal courts’ procedures and philosophies of justice. ■
“Judicial Notebook” is a project of APA Div. 9 (Society for the Psychological Study of Social Issues).
