considered illegitimate, Native American peacemaking courts offer
a model for criminal-justice reform.
Abby Abinanti. (Courtesy of Yurok Tribe)
a gloomy day in September, Lisa Hayden rushed through the circular
door of the Yurok Tribal Court in Klamath, California, with her
1-year-old son on her hip. Hayden, 31, worried that the day wouldn't
turn out any different from all the others she'd spent in court
trying to protect herself from her ex-husband. For 12 years, starting
when she was pregnant with their first child, Hayden alleges, her
ex-husband had held guns to her head, punched her, and called her
The abuse that Hayden
says she suffered is shockingly common: According to a Justice Department
study in 2016, four
out of five Native Americans have experienced violence from
an intimate partner. In 97 percent of those cases, Native women
were victimized by non-Natives. To make matters worse, indigenous
people are less likely to receive fair treatment when interacting
with police and judges, according to a recent
analysis of data from the Centers for Disease Control and a
from the National Council on Crime and Delinquency.
This has been Hayden's
experience. Last year, anticipating her ex-husband's release from
prison, Hayden went to county court to request a restraining order,
showing the judge threatening letters her ex had sent from prison.
After spending less than five minutes listening to Hayden, the judge
dismissed her fears as something "she had to work through" and denied
her request. Within six months of his release, according to Hayden,
her ex-husband high on heroin, wearing a bulletproof vest,
and armed with three guns kicked in the front door of her
apartment, yelling that he wanted to kill her, as she and her three
children huddled on the floor. Though her ex was sent back to prison,
Hayden remained afraid.
This was why Hayden brought
her request for a restraining order to Judge Abby Abinanti of the
Yurok Tribal Court, a respected figure with a distinctive approach
to jurisprudence. Abinanti doesn't wear a robe, opting instead for
jeans and cowboy boots. She sits not on a dais, but behind a wooden
desk in a small room. Immediately upon entering Abinanti's courtroom
on that September day, Hayden said, she felt "more like a person"
than she had in county court. Abinanti listened at length, squinting
as if trying to solve a puzzle.
issued the restraining order. But she also made an offer to Hayden's
ex-husband, to send letters to his children and receive photos through
a caseworker; an earlier offer still stands for him to attend a
program designed by Abinanti's court to rehabilitate batterers,
and to remove his gang tattoos on the tribe's dime. The goal was
to protect Hayden while giving her ex-husband a chance to end his
cycle into and out of prison. (So far, he's refused all services.)
"No one ever came up with that in the county system," Hayden said
after Abinanti's ruling, smiling as her kids played nearby. "No
one ever tried to get at the root of it. 'Relieved' is the big word
Abinanti is one of a
growing number of tribal judges nationwide incorporating traditional
culture into their courtrooms, with the dual aim of rehabilitating
individuals and providing justice to people often failed by the
regular criminal-justice system. Abinanti, whose court was recently
described in a federal assessment as "extremely fair and balanced
in its rulings," is more likely to ask defendants to devise their
own ways to atone for a crime or settle a dispute than to slap them
with fines or incarceration. As Abinanti explains, "I'm looking
at: How did we resolve things before our cultural interruption,
when invasion occurred? We were village people, and we sat around
and had discussions. My purpose is to help you think up how to make
it right if you made a mistake
. For me, jail is banishment.
It's the last resort."
purpose is to help you think up how to make it right if you made
For me, jail is banishment. It's the last resort." Judge
Traditional models of
dispute resolution, which are characterized by the involvement of
everyone affected by an offense and emphasize repairing harm instead
of inflicting punishment an approach often called "restorative
justice" are gaining attention outside Native communities.
It's a significant shift, as historically both Congress and the
Supreme Court have diminished the legitimacy of tribal courts and
peacemaking forums. (In almost all circumstances, tribal
courts cannot hear criminal cases involving non-Native people,
even for crimes committed on Native land.) Now five Western states
as well as Michigan are using tribal models to develop courts that
seek to create a consensus between the plaintiff and the defendant.
Casey Family Programs, one of the nation's largest child-welfare
foundations, is promoting partnerships between state and tribal
courts in which judges, social workers, and attorneys convene to
adjudicate cases. In the past several years, courses in Native American
peacemaking have been taught at the Columbia, Lewis and Clark, and
University of New Mexico law schools. Prestigious law-review journals,
including the American Bar Association's, have published
articles on the importance of therapeutic tribal courts and
peacemaking. As a sign of this increasing respect, Senators Al Franken
(D-MN) and Lisa Murkowski (R-AK) recently introduced legislation
that would grant tribal judges expanded ability to prosecute non-Native
The new attention is
partly due to the growing recognition that the country's punitive
approach to criminal justice has failed: The United States has 5
percent of the world's population but
25 percent of its population of prisoners, a disproportionate
number of them people of color. "The American justice system is
in crisis, and we have to think about what else could work," said
Cheryl Fairbanks, a board member at the National American Indian
Court Judges Association. Could the old practices revived by Abinanti
be part of this future?
other week, Abinanti packs her hatchback with groceries, books,
and blankets and drives six and a half hours from her apartment
in San Francisco, through the tawny hills of Northern California,
and up into the foggy redwood forests of the Yurok Reservation.
Abinanti, 70, has been making this drive her entire life.
As a child, Abinanti
was shuttled from her drug-addicted mother's house near the reservation
to the home of her paternal grandmother, who lived in San Francisco's
Noe Valley neighborhood, blocks away from Abinanti's current apartment.
Like many Native children, Abinanti was misdiagnosed by her school
and placed in a class for developmentally delayed students; not
until high school did a teacher realize she was bright. Abinanti
was angry a lot. ("I'm better now, even though I'm still half-mean,"
she offered with a dry smile.) Relatives often said she reminded
them of her grandfather, Marion Rube, a bank robber who once escaped
from San Quentin prison. Her childhood isn't something that she
typically shares from the bench, but it informs her empathic orientation.
"You don't start out
to be a meth-head it's not, like, a career objective," Abinanti
said on a recent drive north. When not talking, she hummed along
with Hank Williams on the radio. "You don't know what breaks a person,
and if you're strong enough to come back, you can't judge someone
Abinanti speaks often
about intergenerational trauma, the idea that the events of colonization
in the past rape, murder, and the dissolution of indigenous
languages and cultures create ongoing problems in the present:
Native American communities now experience physical and sexual assault
at three times the national average. For the Yurok, that traumatic
history is recent. Throughout Abinanti's childhood and until 1970,
the federal government, eager to assimilate indigenous people, terminated
more than 100 nations, including the Yurok. The government stripped
those citizens of their land and made it illegal to dance ceremonially
or practice Native religions. By 1974, when Abinanti became the
first Native American woman to pass the bar in California, there
was no tribe for her to work for, so she joined California Indian
Legal Services, a nonprofit law firm for the state's tribes and
tribal members. In some courtrooms, she was the first Native American
lawyer ever to enter there.
Abinanti was the first
Native woman in California to become a state judge; she also taught
law at the University of California, Berkeley, and served as a judge
or attorney for seven other tribes. In 2007, after the Yurok Tribe
reclaimed its legal status and reestablished its government, Abinanti
became chief justice. At the time, the court was open only once
a month, mostly to adjudicate fishing violations. Under Abinanti,
it's grown into an enterprise with about 20 employees and hears
an average of 670 cases per year, ranging from illegal trash dumping
to domestic-abuse cases.
Innovation and flexibility
are what distinguish Abinanti's court. For instance, if both parents
agree to the terms, she permits nonmonetary child-support payments
such as manual labor or salmon. Abinanti and her staff have created
a handful of programs intended to provide alternatives to incarceration.
A wellness program sanctioned by the state allows the Yurok Tribe
to pull members accused of drug crimes out of the court system and
bring them home for addiction treatment; the program includes cultural
rituals like sweat lodges and prayer. Another program is designed
to rehabilitate people who have beaten their partners or children.
It's the first in the state of California, and possibly in the country,
certified to include non-Native people. That's imperative on the
Yurok's checkerboard reservation, where tribal members and non-Natives
are often neighbors and partners. Participants in the yearlong program
consult with elders and learn to identify personal triggers and
to use anger-management tools. Since the program began two years
ago, none of its participants have returned to jail for domestic
attacked as illegitimate forums, tribal courts are beginning to
be seen as partners with innovative approaches.
The tribe has yet to
analyze its recidivism rates overall, but a handful of studies indicate
that other tribal courts are achieving better success for their
members than are state courts. The Kake Tribe in Alaska found that
members enrolled in a peacemaking project fulfilled their court-ordered
amends 97.5 percent of the time, compared with a 22
percent success rate in the Alaskan state-court system. Participants
in the Leech Lake Band of Ojibwe Wellness Court, which allows people
arrested for driving while intoxicated to receive culturally specific
treatment on the reservation, had 60 percent fewer rearrests one
year after entering the program than the DUI offenders, both Native
and non-, who attended a county rehab program.
Timothy Connors, who's
been a state judge in Michigan for more than 25 years and has served
by invitation in the past five on the court of the Little Traverse
Bay Bands of Odawa Indians, is leading an effort to create county
courts that use a tribally inspired peacemaking approach in cases
where the parties involved will have an ongoing relationship after
they leave court. In the first four years of these peacemaking courts,
94 percent of the cases resulted in an agreement between both parties
and avoided litigation. Unlike mediation, the goal of these courts
isn't simply the resolution of a given issue, but rather a deepened
understanding between the affected parties. "It's the idea of cleansing
and healing versus judging," Connors said. "They are designed not
to get even, but to get well."
Under current law, states
aren't required to recognize most tribal-court rulings. Yet there
are now at least 15 Tribal-State Court Forums coalitions
of federal, state, and tribal judges, which meet regularly to facilitate
efficient cross-jurisdictional enforcement of court orders, civil
proceedings, and compliance in child-welfare cases. "Tribal courts
have been continuously attacked as illegitimate forums since contact,"
said Jerry Gardner, executive director of the Tribal Law and Policy
Institute. "But with the rise of restorative justice, tribal courts
are being seen not just as legitimate institutions but as partners,
which have wise and innovative approaches and resources to probe
the root causes of crimes."
recent evening, Abinanti sat on her couch watching baseball with
a few colleagues and discussing the people who'd ended up in jail
over the weekend. For the judge who spends much of her spare
time studying economic development, searching for a way to help
her tribe overcome its 73 percent unemployment rate knowing
these families is an asset, as it deepens her understanding of the
impact of a particular crime.
In non-tribal courts,
by contrast, judges must recuse themselves if they know a defendant.
That's just one of a number of barriers to applying tribal models
to America's criminal-justice system more broadly. The scale of
the state-court system alone makes it nearly impossible for judges
to take the time required for Abinanti's approach: There were nearly
7 million cases filed in California state court in 2015. Mandatory-sentencing
laws would also have to be overhauled. As Savala Trepczynski, executive
director of the Thelton E. Henderson Center for Social Justice at
the UC Berkeley School of Law, noted by e-mail: "If we were serious
about mirroring Judge Abby's style, we'd have to create and sustain
a society with minimal incarceration. We'd have to reimagine the
purpose of the criminal-justice system and destroy the economic
incentives to incarcerate."
Developing such courts
can be a challenge even for tribes. There's no reliable data on
how many of the 567 federally recognized tribes have set up courts
that reflect their traditions. But at least 19 have written tribal
codes, and many more are revitalizing their courts with cultural
concepts. However, many face significant budget challenges. (Abinanti
likens herself to a street hustler for all the time she spends applying
for grants.) The Bureau of Indian Affairs is funding most tribal
courts at just 6 percent of what is needed, according to a 2015
BIA report to Congress. Certain states, including California and
Alaska, receive no allocated federal funds for tribal courts. A
pilot project to determine funding needs in those states was created
during the Obama administration, but it would be eliminated under
President Trump's proposed budget.
There is also the question
of whether a restorative-justice model is appropriate for every
crime, particularly those involving sexual predators. There is a
real potential for further harm if the victims of sexual violence
are expected to communicate with the perpetrators, said Sarah Deer,
co-director of the Indian Law program at the Mitchell Hamline School
of Law and a national expert on violence against Native women. "I
get nervous about putting victims in that system," Deer continued,
"because it sets up a lot of victim-blaming."
Still, Abinanti believes
that for perpetrators truly committed to making amends, rehabilitation
is possible, even though it may take years. "This isn't as simple
as saying you're sorry and moving on," she said. "Some things aren't
you at least have to try."
Rebecca Clarren is an
award-winning journalist with InvestigateWest, a nonprofit journalism
studio in the Pacific Northwest.