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February 14, 2024

There is More to the Story — You May Think You Know What Is Going on with Circle Peacemaking, but Alaska Natives have Other Ideas

Pat Sekaquaptewa and Grace Carson

Restorative practices have been practiced by Native communities since time immemorial. It is these restorative practices that Western systems have looked to when attempting to implement their own restorative justice systems. But Indigenous restorative practices are not only a process that Native communities engage in after harm has taken place, they are the application of the restorative values that are deeply embedded in Indigenous knowledge and being. In other words, Indigenous practices of restorative justice are inseparable from the restorative and healing values that are lived by Indigenous people daily in connection with oneself, one’s community and relatives, and nature according to tribal culture, traditions, and knowledge. Because of this, restorative practices are an extremely important aspect of Indigenous cultures across the United States.

Restorative practices can look different for each tribe. Historically, every tribe had their own process for handling conflict or addressing harm, but these processes had overlapping values and priorities such as community, kinship, healing, and accountability. This is in contrast to retributive processes used by Western forms of justice that focus on hierarchy, control, and punishment. Since colonization, tribes have had to adopt Western justice systems as a means of practicing tribal criminal jurisdiction. Despite this, tribes have continued to hold onto their restorative practices, continuing the use of restorative justice as a means to address harm and conflict in their communities.

As a result of colonization, which caused some tribes’ cultural knowledge and practices to be forgotten as a result of genocide, tribal restorative practices today look different than they once did. Restorative practices might also look different than they did prior to colonization if they are currently practiced through a tribal criminal legal system, as there are specific limitations on tribal criminal jurisdiction imposed by the federal government. However, to practice tribal restorative justice is not simply to return to the past. Indigenous restorative practices have continued to be imagined and created long after colonization. In fact, an essential aspect of Indigenous restorative justice is that it is living, flexible, ever-changing. While Native tribes and communities often draw upon traditional knowledge and practices, they have adapted to the injuries of colonization by creating new ways of responding to harm and conflict in their communities. This is exemplified in the ways that Indigenous peoples still practice restorative justice within the legal limitations that the federal government has put on them, creating new ways of practicing community, healing, and accountability.

We see this evolution of restorative practices for tribes specifically in Peacemaking, a tribal conflict resolution process. Peacemaking can be most simply described as a process where people talk together to resolve conflict, usually through Circle keeping, where the person who caused harm, the person who was harmed, and community members and tribal elders come together to sit in a circle to work through the conflict. Usually there is a Circle keeper who helps facilitate the mediation process. It is important to note that all participants must volunteer to participate in the Circle keeping process. Peacemaking must also include strategies to prevent harm in addition to addressing harm when it happens. However, Peacemaking is not one size fits all—it is a cultural practice that varies in each tribe. And as a result of colonization, tribes who do not have access to their traditional Peacemaking processes and traditions may borrow from and work with other tribes in their current Peacemaking processes and systems. Like other tribal restorative practices, Peacemaking has evolved and continues to evolve as tribes and their needs evolve.

The Circle keeping process, sometimes called a “Peacemaking Circle,” is particularly popular among Alaska Natives. Peacemaking Circles utilized in Alaska today are part of an older movement within Alaska Native communities originating in State-Native community collaborative efforts to create an alternative process to State juvenile and criminal court process. However, as discussed above, this process was not new, as Alaska Native communities traditionally resolved conflict using their values and traditional practices. Alaska Native communities view Circles as vessels for their values and ways of being. The flagship of the Circle Process is Circle Peacemaking in Kake, Alaska (a Tlingit community in southeastern Alaska). Some Alaska Native scholars argue that this hybrid approach is most effective when it lies with the Alaska Native community outside of a legal system, rather than with the federally recognized tribal government or court. Others seek to incorporate it into the operations of the tribal court.

Alaska Native communities and tribes are attracted to restorative approaches for their relationship building and repairing qualities, but they are primarily viewing them as vehicles for the sharing of Native identity, including Native/tribal history, worldview, language, and values. Tribal leaders and judges also view the implementation of restorative approaches as exercises of tribal sovereignty. In a leap that may be difficult for outsiders to understand, they also equate all of this with “subsistence,” or what Alaska Natives call traditional hunting, fishing, and gathering. What may seem to be a lifestyle choice to outsiders is actually all about the human and natural world relationships that make family, community, homeland, sustaining lifeways, and wellbeing for Alaska Natives. For them, Circles are also about traditional skills building and the provisioning of family and community.

Today, in the many small Alaska Native Tribes, there is also a push for Circle Process to be the tribal court. There are 231 federally recognized tribes in Alaska and roughly a third of these have formal tribal courts; the rest may use their deliberative bodies (traditional or Indian Reorganization Act Tribal Councils) to resolve conflicts. The typical caseloads of the formal tribal courts include child protection, adoption, domestic and family violence protections, substance abuse issues, and juvenile matters—most in a civil context. Historically, the State of Alaska, and intermittently, Alaska’s executive branch of government, have contested the existence of tribes in Alaska, even those recognized by the U.S. government. This tendency combined with a U.S. Supreme Court decision limiting the “Indian country” status of tribal homelands, put the territorial jurisdiction of tribal governments in Alaska in doubt. The western theoretical justifications for a government to exercise criminal jurisdiction turn on the existence of a bounded territory (statorily defined as as “Indian country” for tribes in the U.S. Code). Consequently, tribes in Alaska tend to exercise primarily civil jurisdiction.According to Natasha Singh, former General Counsel for Tanana Chiefs Conference, today tribal courts in Alaska, via their civil jurisdiction, are turning to restorative justice and Peacemaking to focus the entire community on healing. She describes a process using community-wide Circles in small villages (tribes).

Most of the tribal courts and Circle cases include children and/or adolescents, their parents and/or caregivers, and involve substance abuse and often violence. Because of this, there is also interest in how tribal courts and/or Circles might integrate aspects of Family Group Conferencing or Family Group Decision Making and/or Tribal Healing to Wellness Courts (the tribal version of drug courts). Consequently, there is a both a great opportunity for innovation and complexity in the design and implementation of hybrid approaches. Informal experiments with these approaches come and go in Alaska, with few tribes enacting laws or rulemaking to sustain them (the Kenaitze Indian Tribe of Alaska being the exception).

Finally, an added, but very important, consideration with respect to the use of Circles as courts is how the state of Alaska recognizes and enforces tribal court orders, and how this might implicate and impact the Circle keeping process. The devil is in the details, particularly in the due (fair) process requirements. The collision of fair process and what it takes to build and repair relationships comes into stark contrast in Alaska Native tribal courts. Because federally recognized tribes in Alaska lack law enforcement and service infrastructure, they need the state’s agencies and courts to honor and support the given tribal court’s orders, whether it be to finalize an adoption, enforce a protective order, or provide services. Under current Alaska and federal laws, the doctrine of comity applies to most tribal court orders. The state must also give full faith and credit to tribal court orders arising in “child custody proceedings” under the federal Indian Child Welfare Act. Finally, under the federal doctrine of exhaustion, the state’s courts must prudentially abstain from exercising jurisdiction to hear challenges to tribal court jurisdiction or due process issues, until the parties have exhausted their remedies before the tribal court.

Essentially federal-tribal-state relations and laws will impact the process of a Circle where it serves as the tribal court, including requirements for: (1) notice of “hearings”/Circles; (2) “hearings”/Circles on the record; (3) written “orders”; and (4) a tribal appellate body to hear and decide appeals. The Alaska Supreme Court, of late, has been supportive of tribal sovereignty and tribal court jurisdiction over tribal members. However, the state’s lower courts have had difficulty recognizing and enforcing the orders of hybrid tribal court processes where they require documentation of notice, “a full and fair opportunity [for the parties] to be heard,” disclosure of how judges/Circle facilitators are related to the parties, and any objections. Where tribal judges (as Circle facilitators) seek to issue orders and have them enforced by the state, they will either be forced to bend their Circle process to the requirements of some adversarial process, or the state’s courts will have to continue to be flexible and collaborative in backing up the needs of the tribal courts and their parties (members). For example, in small villages where most people are related to each other in some way, the Alaska Supreme Court has found that relatives may be witnesses, tribal intervenors, or part of an inter-tribal panel, but they may not act as a member of the panel deciding a dispute. Do Circle facilitators “decide” anything in Circles? Do participants (who likely include relatives of “parties”) in a Circle or in Family Group Conferencing/Decision-making “decide” things? It is easy to see how everyone may get confused.

Despite the complexity and confusion, Alaska Natives highly value their tribal courts and their Circle process. There are some obvious fixes. The tribes could separate their tribal court process from their Circle process and have their tribal court judges refer matters to Circles, with Circle generated written plans or agreements coming back to the tribal court to be approved by tribal court order. This would protect the relationship building/repairing space of the Circle and buttress the enforceability of related tribal court orders in the Alaska courts. One may think that this should all go without saying, as this is how it works in the western justice system. But this has not been the case in Alaska for multiple reasons. In Alaska, tribes are both pulling their traditions forward and innovating with hybrid models and Alaska’s courts are striving to respect tribal sovereignty and Alaska Native culture. Alaska tribes will need to enact laws to clarify the process. The state of Alaska and its courts should continue to recognize tribal sovereignty and to support tribal innovations in this area.

Circle Peacemaking, as applied in the Alaska villages today, has its origins in Alaska Tribes’ traditional systems. Alaska Natives infuse this process with their traditional values. Since Alaska became a U.S. Territory in the early 1900s, and with the influence of both western government forms and laws, the Alaska Tribes have had to conform their traditional systems to include quasi-adversarial tribal courts. They have done so as an act of Native nation building, to assert their tribal sovereignty, and to have some control over the wellbeing of their people. Yet, they do so with a yearning to see their traditional values and ways reflected back to them in their institutions. They are drawn to restorative approaches that are relationship making and repairing, as opposed to adversarial and punitive. The arguably hybrid result is not western justice, but rather a Native justice that feels just to them.

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