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Legally Speaking

 

Issue: December, 2005
Author: Andrew W. Baldwin

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Peacemaker Court: The Traditional Alternative

Debates about how to reform the American legal system to better meet the needs of children and families have spawned the emergence of drug courts, mandatory counseling programs, increased dispute mediation, family courts, and other important efforts.

While some of these are relatively new to the Anglo-American judicial system, American Indian tribes have maintained traditional ways of resolving and healing disputes which already provide much of the benefits sought by these reforms. The Northern Arapaho Tribe of Wyoming has codified support for its traditional dispute resolution system in what many tribes now call a “Peacemaker Court.” The Eastern Shoshone Tribe of Wyoming recently took similar legislative action.

Traditional American Indian justice has been described as “horizontal.” It emphasizes problem-solving on a wider basis than just the individuals involved in a specific event, pulling in families and community to address underlying causes of behavioral problems. Peacemaking allows for discussions about why a crime occurred, why the people involved took the action they did, and what should be done to repair the damage. Participation is like “sitting in a circle,” where each person shares in both the problem and the solution. “Peacemakers,” or trusted community elders, lead a mediation process toward solutions which are as broad or as narrow as they need to be to address the root problem. It is not only a specific dispute “resolution,” but also a broader dispute “solution.” By comparison, the Anglo-American system relies on a hierarchy of power that reaches from judge, to litigant, to probation or social programs, and has been described as more “vertical” in its approach.

Historically, tribal systems have gone “underground” because of pressure from non-Indian governments to use only the Anglo-American model for resolving disputes. Suppression of traditional Indian culture was the official policy of the United States for most of its history. The right to free worship on Indian reservations, for example, was not fully recognized by the federal government until 1934 (Federal Agencies Task Force, American Indian Religious Freedom Act Report 4-7, U.S. Dept. of the Interior, 1979). In many cases, the need for traditional approaches to function “under the radar” has impaired the effectiveness of those traditional methods, contributed to a breakdown of social structure and values, and increased the pressure on tribal courts and social service programs for solutions. Poverty and unemployment (each in excess of 60% on the Wind River Reservation) have added to the serious challenges faced by tribal communities. These are some of the real and deeply personal reasons tribal members need and demand their sovereignty – to protect themselves, their traditions, and their future as a people.

The Peacemaker Court aligns the Anglo-American model so that it supports, rather than competes with, traditional cultural values and dispute solutions used by tribes. A variety of cases coming to the Tribal Court may be diverted into the Peacemaker Court, including marital and family disputes and minor business transactions. Peacemakers are appointed by the Tribal Court and are authorized to mediate disputes. Participants who object to how a Peacemaker handles the matter may complain to the Tribal Court and stop the process. Peacemakers are held to a standard of ethics similar to that applicable to judges. If a dispute cannot be resolved this way, it is referred back to the Tribal Court. If a solution is reached, the Peacemaker reports this to the Tribal Court, which then reviews and memorializes the agreement into a judgment or order which, if necessary, may be enforced as any other issued by the Tribal Court. Copies of the Northern Arapaho Peacemaker Code are available through the Tribal Court or the Northern Arapaho Business Council and should be posted on the Tribe’s website (northernarapaho.com.

A Peacemaker manual and forms are being developed by the Tribal Court. These manuals and forms are for use by Judges, Peacemakers, Clerks of Court, and Tribal officials. A “plain language” version of the Peacemaker Code is available for participants or others interested in the Peacemaker process. These should be available from the Tribal Court in the near future and also should be posted on the Tribe’s website (northernarapaho.com).

The Peacemaker Court institutes a long tradition. Tribes have used Peacemaker Courts, in a formal or an informal way, for hundreds of years. The Seventh Circuit Court of Appeals noted that “[p]rior to the late 1800s, when the Bureau of Indian Affairs (BIA) established a Court of Indian Offenses on the Menominee Reservation, the Tribe operated a system of dispute resolution that was based on ancient practices involving a Peacemaker, or respected tribal elder.” U.S. v. Long, 324 F.3d 475 at 477 (7th Cir. 2003). Tribes across the country seem to be making greater use of the Peacemaker Court system as a formal model used to implement traditional law. For example, the Mohawk Tribe established a peacemaking center in 1990, the Nez Perce Tribe began developing a system in 1995, and the Chippewa-Cree Tribe began its efforts in 2004.

The Peacemaker Court is a beacon for the future. Bringing the Anglo-American court model into conformity with traditional values strengthens those traditions and the Tribal Court system. Those committed to improving the Anglo-American system should consider the more “horizontal” approach to dispute solutions being supported by the “Peacemaker Court.” We all have a vested interest in the success of the newly formalized Peacemaker Court.

Mr. Baldwin is a shareholder of Baldwin & Crocker, P.C., in Lander, Wyoming, which has represented the Northern Arapaho Tribe or tribal agencies since 1992. He served as in-house counsel to the Northern Arapaho Tribe in 1988-1992, as Executive Director of Wind River Legal Services in 1984-1988, and as a Reginald Smith Law Fellowship recipient (poverty law) on the Wind River Indian Reservation in 1982-1984.

Copyright © 2005 – Wyoming State Bar

     

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