Legal Status of Indigenous Courts

Articles about diversion of certain matters to indigenous courts or acceptance by the criminal justice system of decisions made there.

First Nations court seen as path out of vicious cycle

from the article by Mike Youds for the Kamloops Daily News: Local bands have asked for a First Nations court to be established in Kamloops, delegates heard Thursday at an Aboriginal justice forum at TRU. The forum focused on the Aboriginal sentencing principles of Gladue, recently reaffirmed by the Supreme Court of Canada, while hosting Justice Marion Buller Bennett of First Nations court in New Westminster.

Activists berate Traditional Courts Bill in South Africa

from sipho Khumalo's article in The Mercury The controversial Traditional Courts Bill, which its critics say will take the country back to the era of bantustans, is set to come under scrutiny at a series of public hearings in KwaZulu-Natal. The sponsor of the bill, the Department of Justice and Constitutional Development, argues that the legislation seeks to affirm the recognition of traditional justice and its values based on restorative justice and reconciliation.

Victoria’s Neighbourhood Justice Centre

from the paper prepared by Courts and Tribunals Unit, Department of Justice, Victoria for the Indigenous Justice Clearinghouse: Community Justice Centres are neighbourhood-focused centres that seek to enhance community participation in the justice system, address local problems, and enhance the quality of local community life....Centres often vary in their model and focus but generally share a motivation to address crime and safety concerns locally, by developing effective relationships and links with the local community. Community justice centres challenge traditional methods of the criminal justice system. Rather than focusing on responding to crime after it has occurred, they seek to develop new relationships, both within the justice system and with stakeholders from the wider community, and to trial new and innovative approaches to community safety... A feature common to the various kinds of centres around the world is that they seek to respond in innovative ways to issues that may be otherwise considered negligible in the traditional criminal justice system.

Dan Van Ness: Indigenous dispute resolution and restorative justice

It is common to link restorative justice and customary principles and traditional practices of justice. The argument is that the underlying beliefs of customary justice are that justice should repair harm and that the parties themselves should participate in deciding how that is done. These are principles shared by restorative justice. However, there is a dark side to this relationship.

Marchetti, Elena and Daly, Kathleen. Indigenous Courts and Justice Practices in Australia

Indigenous populations in Australia have been informally contributing to sentencing procedures throughout remote communities for some time. During the late 1990’s, Indigenous participation in justice processes became formalized with the development of Indigenous sentencing and Circle Courts. Related justice practices include the setting aside of certain days in urban courts to sentence Indigenous offenders and the practice of judicial officials traveling on circuit to deal with cases in remote Indigenous communities. Judicial officials who travel on circuit to remote Indigenous communities incorporate the views of the elders or respected members of the local community into their justice practices. The authors review the emergence of Indigenous justice practices, which were necessitated by the relatively large number of Indigenous offenders and the need to establish partnerships between state governments and Aboriginal communities. Jurisdictions vary in their approaches to this liaison between state officials and Aboriginal representatives and are particular to the concerns of the populations of the areas. The similarities in Indigenous justice between jurisdictions include the requirement of an Indigenous offender; cases are usually heard in Magistrates’ Court; and the offense must have occurred in the geographical region under the courts jurisdiction. An important component of Indigenous justice is the presence of Indigenous court workers whose roles and duties vary by jurisdiction. A comparison of two jurisdictions, the New South Wales Circle Sentencing Court and the South Australian Nunga Court, is offered to illustrate differences of approach. Thus, the incorporation of Indigenous justice practices has resulted in a transformation of the Australian justice system involving communication between judicial officers, Aboriginal representatives, and Aboriginal offenders. Abstract courtesy of National Criminal Justice Reference Service, www.ncjrs.org.

Gottlieb, Karen. Process and Outcome Evaluations of the Poarch Band of Creek Indians Drug Court.

This report presents the methodology, findings, and recommendations of an evaluation of the drug court of the Poarch Band of Creek Indians, located in southwestern Alabama near the Florida border. The outcome component of the evaluation found no statistically significant relationship between completion status and recidivism; graduates were as likely to reoffend as the terminated participants; however, graduates were slower to reoffend than terminated participants. Although the pre-drug court recidivism rate of participants is not known, the recidivism rate of 50 percent after 3 years for those no longer in the program indicates that not all participants reoffended. The positive changes - increases in self-esteem and decreases in substance abuse behavior - seen in many of the participants indicates successful rehabilitation was achieved for some. The drug court’s strengths were determined to outweigh the weaknesses. Strengths included a core team with stability, compassion, and commitment to the program; the integration of a cultural program with the drug court; treatment incorporated as a structure in participants’ lives; intensive monitoring during the first phase; and the combining of the roles of counselor and probation officer. Improvement in the court could be achieved by integrating treatment with a steering committee that would include tribal and community leaders. This would extend the ownership of the court to the community. Some program weaknesses were poor communication between treatment providers and the team; irregular scheduling of staff meetings; the absence of tribal leaders or elders on the team; lack of enforcement of program requirements; and no individualized, is currently a mature drug court. At the time of the evaluation (2005), it had admitted 28 participants with alcohol and drug-related offenses. Fifteen of the participants graduated, 8 were terminated, and 5 were current participants. (abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).

Penal Reform International. Report on Monitoring and Research on the Gacaca

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Penal Reform International. Rapport de la Recherche sur la Gacaca – PRI

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Penal Reform International. Rapport de la Recherche sur la Gacaca – PRI Avec le soutien de la

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Penal Reform International. Research Report on the Gacaca – PRI Report 1

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Dwyer, Peggy. Sentencing Aboriginal Offenders: The Future of Indigenous Justice Models.

At the end of the 20th century, Australia’s first Aboriginal court was established to sentence indigenous offenders. Over the last 6 years, a number of different courts, in most of our States and Territories, have become operational. While their style and set up differs to accommodate the interests of the local community, the broader aims are the same - to create a distinct culturally appropriate tribunal in which to sentence indigenous offenders, that will increase the involvement of the offender and the local community in the decision making process. The primary purpose of this paper is to explore two existing indigenous justice models - Aboriginal Courts and circle sentencing courts - and to suggest ways in which they may be expanded in the future, both geographically and in scope. (excerpt)

Dewhurst, Dale. Parallel Justice Systems, or a Tale of Two Spiders.

Recently, attempts have been made to modify or create systems of justice to respond to Aboriginal rights and values. One such attempt is the establishment of Canada’s first Aboriginal Court, the Tsuu T’ina First Nation Court. Staunch advocates of the adversarial system of justice may complain that the First nations Court gives Aboriginal people too much power; or, they may complain that it breaches fundamental principles of justice by providing separate justice systems for Aboriginals and non-Aboriginals. However, it is my position that where the court model is weak, it is because Aboriginal people have too little control. My concern is that attempts to introduce Aboriginal justice systems into the “adversarial system” (the term used to designate the current Canadian justice system) are prone to fail where the two systems have differing levels of authority. If Aboriginal systems are considered to be alternative, preliminary, of lower authority, or unofficial, their opponents will resort to the more “final” or “official” adversarial system in controversial cases. Instead, Aboriginal justice systems must be designed as authoritative and parallel models of justice. To discover some of the principles necessary to achieve this end, I will critically examine the rationale and structure of the Tsuu T’ina First Nation Court and I will draw out three useful comparative points from the historical development of the courts of common law and equity. This critique and comparison will show how we may take further steps toward achieving truly authoritative and parallel Aboriginal justice models. But first of all, for those who want a shorter route the problem and its solution are revealed in the tale of the two spiders. (excerpt)

Briggs, Daniel and Auty, Kate. Koori Court Victoria – Magistrates Court (Koori Court) Act 2002.

The introduction of Koori Courts in Victoria pursuant to the Magistrates Court (Koori Court) Act 2002 has not been without its detractors and like all change, is attended by controversies. Steps which attempt to ‘move the law along’ (as if she were an old bag lady), are often seen as a threat to the legitimacy of the legal system. Before we even commenced sitting at Shepparton by the Bayunga or Koriella river, known to non-Aboriginal people as the Goulburn, our regional Koori court was the subject of criticism with members of the legal profession commenting that Aboriginal people would not be able to find their way to the court, or that they would ‘go walkabout’ on the day of the hearing (Herald Sun 6/5/2002). This early criticism was met by much positive commentary (The Age October 2002). Nevertheless criticism continued, when a senior member of the Victorian bar, citing the establishing Act incorrectly, suggested that the Koori Court ‘tipped the scales’ and provided ‘luxury’ or ‘special’ courts and some ill-defined special regime of sentencing options (Galbally, Herald Sun 13/3/2003). He also contrasted the banning of Father Christmas from child-minding centres with the Koori Court initiative. The Victorian Attorney General, Rob Hulls criticised the ‘impaired logic’ which underpinned this commentary (Herald Sun 14/3/2003). It is timely to put the controversy and distractions to one side and start seriously considering what we do in the Koori Court in Victoria. (excerpt)

Marchetti, Elena. Indigenous sentencing courts and partner violence: perspectives of court practitioners and elders on gender power imbalances during the sentencing hearing.

One of the most common forms of violence in Indigenous communities is violence between intimate partners. Indigenous sentencing courts and specialist family violence courts (as well as mainstream courts) are used in Australia to sentence Indigenous partner violence offenders. Currently, there are over 50 Indigenous sentencing courts operating in all Australian states and territories, except Tasmania, which use Indigenous Elders to assist a judicial officer in sentencing an offender. Debates exist surrounding the issue of whether alternative justice forums are appropriate in cases involving domestic and family violence. Feminist advocates are concerned with the appearance of a 'too lenient' response to violent men and the danger of exposing a victim to further power imbalances during a hearing, whereas Indigenous advocates focus on the need for justice practices that are more culturally relevant, sensitive and appropriate. This article explores the extent to which gendered power imbalances are present in Australian Indigenous sentencing court hearings concerning intimate partner violence offending, and how, if at all, such power imbalances are managed by a process which aims to be more culturally appropriate. (author's abstract)

Clark, Scott. The Nunavut Court of Justice: an example of challenges and alternatives for communities and for the administration of justice.

The Nunavut Court of Justice, a superior court and the only unified criminal court in Canada, was established in 1999, coincident with the creation of Nunavut. One of the court's three main objectives has been to provide an efficient and accessible court structure capable of responding to the unique needs of Nunavut. The achievement of that goal is an ongoing process in light of challenges inherent in providing justice in Nunavut. The article considers delays and lengthy case processing times as one example reflecting the difficulties facing the court. The author argues that improvements have been made since 1999 but that ongoing problems with the implementation of organizational improvements in the areas of legal aid services, the Inuit court worker program, and the justice of the peace program mean that the court's original objectives are not being completely met. Reasons for the gaps are examined, including perennial funding shortages for Nunavut's justice programs. The Nunavut Court is also seen as representative of broader challenges for the mainstream justice system in engaging with Inuit communities and culture. Fundamental problems resulting from the historical and ongoing marginalization of Inuit in Nunavut contribute to problems with the administration of justice. The author argues for increased movement toward true community-based justice alternatives, hot to the exclusion of the mainstream system but in an effective intersection with it. (author's abstract)

Penal Reform International. Rapport de monitoring et de recherche sur la Gacaca: Les témoignages et la preuve devant les juridictions Gacaca

This latest report from the gacaca monitoring project deals with the issues surrounding testimony, evidence-giving and proof in the gacaca courts. In effect, the whole gacaca justice system relies on witness statements and oral accounts of events – accounts which can be distorted by the passing of time, corrupted by the desire for retribution or curtailed for the sake of expediency. This report looks in detail at the difficulties which have arisen in uncovering the ‘truth’ of the genocide and the effect the gacaca testimonies continue to have on those seeking justice and reconciliation. (publisher's abstract)

Penal Reform International. Research Report on Gacaca Courts – PRI

For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)

Borowski, Allan. In courtroom 7 -- The children's Koori Court at work. Findings from an Evaluation.

This article reports some of the findings of an evaluation of the Children’s Koori Court (CKC)—the first legislated effort in Australia to involve the Indigenous community in the sentencing of young Aboriginal offenders as a strategy for reducing their overrepresentation in the juvenile justice system. A prominent feature of this court of summary jurisdiction is that the presiding magistrate, while remaining the sentencing authority, is assisted by Aboriginal Elders. This article focuses on the evaluation findings that were derived from observations of the CKC in action. They indicate that the operational objective of cultural responsiveness was realized. They also point to realization of the community-building goal—fostering Indigenous ownership of the administration of the law. Little slippage was found between the CKC’s design and operation, although some areas of improvement were identified. Nevertheless, the scope for the CKC by itself to significantly reduce overrepresentation is limited. (Author's abstract)

Mavec, Dante. The appropriate place of Indigenous Sentencing Courts in the Australian criminal justice system.

In light of their great potential, Indigenous sentencing courts have been established in most Australian jurisdictions but many controversies and uncertainties still surround their operation. One such controversy is whether Indigenous sentencing courts are suited to dealing with all offences. Sexual offences are excluded from the mandate of most of the courts, with justifications for this decision varying between jurisdictions. Another issue that constantly surfaces each time the use of Indigenous sentencing courts is widened is the concern that Indigenous sentencing courts distinguish defendants based on their race, and thus violate the principle of equality before the law. As use of these courts becomes more widespread, it is important that fundamental questions such as these are considered, to ensure that the courts take their appropriate place in the Australian criminal justice system. (excerpt).

Gottlieb, Karen. Lessons Learned in Implementing the First Four Tribal Wellness Courts.

The "lessons learned" presented in this paper were drawn from the experiences of the first four tribal wellness courts (drug courts): Hualapai (Arizona), the Blackfeet (Montana), Fort Peck reservation (Montana), Poarch Creek (Alabama). Although these tribal drug courts had distinctive experiences in planning and implementing court procedures and programs, they exhibited a similar pattern of strengths and weaknesses. The intent of identifying lessons learned from these court programs is that other tribes learn from their experiences and avoid the same mistakes. The first of 10 lessons discussed is to develop a strong structure for the court team. The responsibility of the team is to integrate the members’ skills and backgrounds in achieving a holistic approach to treating court participants who have substance abuse problems. The team should be composed of representatives from across the reservation, including tribal elders and others who embody traditional tribal values. The second lesson is to use the informed consent model for admittance to the court program, which involves the selection of referral points and the use of legal procedures that protect the individual’s due-process rights. The third lesson is to assess readiness for change in potential participants through legal and clinical screening for eligibility. A fourth lesson is to integrate culture, not religion, into the court, which involves providing access to holistic, structured, and phased substance abuse treatment services that incorporate culture and tradition. Other lessons discussed involve monitoring participants during times when illegal acts are likely to occur; rewarding positive behaviors; choosing a judge who can be both a leader and a team player; collecting automated court information systematically from the beginning of the court; developing a written curriculum for court staff; and emphasizing early outreach within the community. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).