By Callie Shanafelt
California Health Report
Advocates for Native American survivors of intimate violence cheered when they won the right to prosecute non-Indian assailants in tribal court. That change came with a provision in the Violence Against Women Act earlier this year. On at least one slice of California sovereign tribal land, the change also means defendants will have to engage with a very different criminal justice system – one that is based on restorative justice.
“What you’re trying to do is resolve a problem,” Yurok Tribal Judge Abby Abinanti explained of their tribal court’s guiding principle. “There must be a consequence for a bad act. You work through the consequence, and if they’re amenable to it, make it up to the victim.”
The ability to try non-Natives in tribal courts, which was hotly contested, came with the reauthorization of the Violence Against Women Act earlier this year. Many Native women suffer from intimate violence. Nationally, Native American women experience higher levels of physical violence, rape and stalking than any other racial group. More than one in three Native American women will be raped in their lifetime, according to the Department of Justice. The majority of perpetrators are not Native American.
Few perpetrators were brought to justice for a number of complex reasons. In states where native tribes did not share jurisdiction with the state, for instance, non-Native people could and did commit violent crimes against Native American women – and no one on tribal land had the authority to prosecute them. They had to rely on federal officials to find a prosecute criminals, a difficult proposition, especially where tribal lands are geographically isolated. Native American women may also live on a reservation with non-Native men who haven’t been subject to tribal authorities, including the tribal police.
Tribal courts haven’t had the right to prosecute non-Native people since 1978 when the Supreme Court ruled that tribes do not have jurisdiction over non-Indians. House Republicans like Senator Chuck Grassley were reluctant to give the right back.
“[U]nder the laws of our land, you got to have a jury that is a reflection of society as a whole, and on an Indian reservation, it’s going to be made up of Indians, right? So the non-Indian doesn’t get a fair trial,” Grassley explained at a town hall meeting in his home state of Iowa in February.
The conflict over tribal jurisdiction was unfortunate and misplaced, Abinanti said. “Clearly they don’t have a sense that we’re functional,” Abinanti said. “I’m not out to mistreat any defendant.”
Abinanti is a retired state court judicial officer and is familiar with both the state and the Native court systems. They are, she notes, systems with different philosophies about retribution and rehabilitation within tribal courts.
But the Yurok tribe focuses on restorative justice. They resolve needs of the victim, the offender and the community, rather than addressing harm to the state as done in most courts in the U.S. The Yurok’s goal is to repair the actual harm that has been done and find healing to end the bad behavior for the benefit of the community.
By providing support to the perpetrator, Abinanti also hopes to end their bad behavior.
“By the time it gets to somebody like me, it’s not the first time it’s happened,” Abinanti said.
This approach is aligned with traditional Native American perspectives about justice. Historically, the Yurok Tribe had a justice and dispute resolution system that included mediation or payment as part of the resolution process. A village leader or group of leaders would listen to the complaint, dispute, or problem and arrive at a settlement amenable to the wronged party and the community.
“One of the most important components of this traditional response was the conversation and negotiation that would occur about the incident, in which tribal leadership would mediate between the two parties,” reads a document of the Northern California Tribal Court Coalition Domestic Violence Court.
Working with Judge Abinanti is very different than working with state judges in Del Norte County, said Yurok Social Services domestic violence advocate Porscha Cobbs.
“With tribal court, there are ways to show accountability in a restorative way,” Cobbs said.
Instead of sentencing someone to a few days in jail, they may sentence them to give up fishing rights or donate fish they catch to the community. This would be a much more significant consequence than a night in jail for a Yurok man, Cobbs said. Many living on reservations in this rugged stretch of the far North of the state depend on fishing from the Kalamath River for subsistence.
Victims who went through the restorative justice process felt less fear of their perpetrator, an increased sense of security and a greater ability to resume normal daily life, according to one study.
Restorative justice models have been used around the world in many indigenous communities. One of the most notable recent examples was the Truth and Reconciliation Commission in South Africa. In order to heal from the injustices during Apartheid, the commission offered amnesty to perpetrators who agreed to tell the whole truth of their wrongs.
This community accountability may mean tribes can succeed with a variety of methods for healing and criminal justice. Though tribes are diverse in their approaches to criminal justice, several in the North are joining with the Yurok to better respond to domestic violence.
Stephanie Dolan directs the Northern California Tribal Court Coalition of five tribes. Dolan is setting up a domestic violence court for all the tribes in the coalition. Three of the tribes have the largest Native populations in the state.
Dolan partnered with the Center for Court Innovation in 2011 to conduct a survey about domestic violence among the tribes in her coalition. Their results differed somewhat from national statistics, showing that most participants thought that perpetrators of violence against women on reservations are equally of Native and non-Native backgrounds.
Members of the five tribes contend with high unemployment rates and high rates of women and children living below the federal poverty level and higher than average rates of substance abuse and mental health problems. These issues are risk factors for domestic violence and sexual assault.
Judge Abinanti says the new VAWA provision is helpful, but may be beside the point. “Who’s doing it is not my concern,” Abinanti said. “The issue is the behavior is not ok.”