November 01, 2016

The Indigenous Practice That Is Transforming the Adversarial Process

By Neil B. Nesheim

As humans, we are always on the lookout for that “aha!” moment. In the judicial arena, it is that time in a case or in your career when you witness and are part of a jaw-dropping, awe-inspiring, life-changing, what-did-I-just-experience? event. Have one of those moments and your adrenaline pumps, your motivational level skyrockets, and you realize that the work you do really does make a difference in people’s lives.

For me, that “aha!” happened in 2001 when I attended my first Circle. I was invited to Kake, Alaska (pop. 520), by Magistrate Mike Jackson, a very well-respected Alaska Native and Keeper of the Kake Circle. The event was a Celebration Circle that recognized the 18-month sobriety of a couple who were leaving the village and moving to a larger community. The comments made during the Circle are confidential. What I can tell you, however, is that what I experienced was so powerful and so moving that I decided to look at restorative justice and the Kake model more deeply.1

An Abbreviated History of Circles

Every culture that has ever been studied had the practice of sitting in a circle and talking.2 Like many indigenous cultures, the First Nation people of Canada and Alaska were able to resolve disputes and heal their communities on their own. They did this through the traditional and time-honored practice of Circles.

For the First Nation people, there are no books, scrolls, or hides that trace the origins of Circles. This is because the memories of the First Nation people are transferred through oral history. Grandfathers would sit around and tell stories that their fathers and grandfathers told them. And those stories would be passed on to the younger generations, who would then share the same stories that they heard. Mike Jackson remembers his father telling him stories of how the Kwaan (Village) would sit around in a circle and resolve conflicts and disputes. Listening to Mike dig deep into his memories and reflect on the past, you could tell that Circles were used long before the Russians, British, or Spanish explored or settled in present-day Alaska. There is no doubt that Circles were used as a tribal practice.

The practice of using Circles went away when the indigenous groups were assimilated and forced into adopting the adversarial system. This went on for several hundred years and hardly any of it was restorative in nature. Then, in the early 1990s, an event in Canada changed how the Western legal system perceived indigenous practices. With First Nation people in Canada being incarcerated at a rate of eight times the national average, Yukon Territorial Judge Barry Stuart was asked by a defendant to resurrect traditional healing and sanctioning practices.3 Judge Stuart agreed and over the course of the next 25 years, Circles have been revived and implemented across North America, Europe, New Zealand, and Australia.4

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