U.S. Department of Justice & 

U.S. Department of the Interior 

Expert Working Group Report:

Native American Traditional Justice Practices 

September 2014

Maha Jweied

Access to Justice Initiative

U.S. Department of Justice

 

 
AUTHOR’S NOTE

The group of experts that assembled in April 2013 came well prepared to discuss Native 

American traditional justice practices and the Federal efforts needed to support them. I would 

like to thank all of the attendees for taking time out of their busy schedules and arriving ready to 

explore the issues. Without their willingness to participate in open and frank discussions, this 

meeting would not have been the success that it was. 

I would like to extend my deepest thanks to Tricia Tingle, Associate Director of the Bureau of 

Indian Affairs’ Office of Justice Services – Tribal Justice Support, for her partnership in this 

effort. This meeting was jointly sponsored and supported by her office and the Access to 

Justice Initiative (ATJ) and would not have been possible without her leadership and

commitment to supporting all forms of Tribal justice systems. 

I would like to thank my colleagues at ATJ – specifically Deborah Leff, Karen Lash, Melanca 

Clark, Silvia Dominguez-Reese, Daniel Olmos, Bob Bullock, and Jenni Katzman – for their 

support throughout the planning of the meeting and preparation of this report. Special thanks to 

ATJ Office Manager Stephan Matthews, without whom the meeting would not have been 

possible, and to ATJ’s legal interns Lindsey Vawter and Geraldine McIntyre, for their careful 

note taking.

While this report is primarily a summary of the proceedings, in some instances we have 

included participants’ statements unedited. The points of view or opinions contained in the 

report are those of the expert working group and do not necessarily represent the views of the 

author or the official position or policies of the U.S. Department of Justice or the U.S. 

Department of the Interior.

For more information about the Access to Justice Initiative, please visit 

http://www.justice.gov/atj/ and for more information about the Office of Justice Services – Tribal 

Justice Support, please visit http://www.bia.gov/WhoWeAre/BIA/OJS/ojs-services/ojstjs/index.htm.

Maha Jweied

Acting Deputy Counselor

Access to Justice Initiative

U.S. Department of Justice

Washington, DC

Cover Design: Nicole Hanna, Liaison, U.S. Department of the Interior – U.S. Department of Justice 
Dedication

This report is dedicated to the memory of our dear colleague Gaye Tenoso, Deputy 

Director of the U.S. Department of Justice’s Office of Tribal Justice. May her dedication 

and commitment to protecting the rights of Native Americans and the sovereignty of 

Tribal nations guide us in our efforts to support indigenous justice.

Executive Summary i

EXECUTIVE SUMMARY

Throughout the United States, the term “traditional justice” is often associated with an 

adversarial court-based model of justice. But for American indigenous communities the term 

signifies a history and culture that evolved separate from judges in black robes. These systems

are often based on restoring harmony and peace to the victim and community – while still 

including elements of offender accountability.

In April 2013, the U.S. Department of Justice’s (DOJ) Access to Justice Initiative (ATJ) and the 

U.S. Department of the Interior’s (DOI) Bureau of Indian Affairs’ Office of Justice Services –

Tribal Justice Support (TJS) jointly convened an Expert Working Group (EWG) on the use of 

traditional Native American justice interventions to respond to criminal and delinquent behavior.

The meeting was held in furtherance of the Tribal Law and Order Act’s mandate that both 

Departments work with Tribal court systems to develop a plan to address alternatives to 

incarceration.1

 The meeting also evidenced the Administration’s commitment to Tribal

sovereignty by recognizing and showcasing the importance of traditional Tribal custom. 

The meeting brought together 14 experts from multidisciplinary communities, including judges, 

researchers, government officials and advocates with experience and knowledge in the use of 

traditional justice practices primarily within indigenous communities, for a one-day roundtable 

meeting.2

 The experts were asked to provide short presentations on the traditional justice 

intervention that they lead in their community or about which they are knowledgeable. The 

majority of the participants were from the United States, but a Canadian expert was also invited 

given the shared history and culture of the U.S. Native American and Canadian Aboriginal 

populations. 

Representatives of Federal agencies that support the use of traditional practices, such as DOJ’s

Bureau of Justice Assistance, DOJ’s Office of Juvenile Justice and Delinquency Prevention, and 

the U.S. Department of Health and Human Services Substance Abuse and Mental Health 

Services Administration, observed the EWG.

In recognition of the United States’ support of the United Nations Declaration on the Rights of 

Indigenous Peoples and its provisions that support the traditions and customs of indigenous 

communities and Nations, including Article 5,3 Professor James Anaya, the United Nations 

Special Rapporteur on the Rights of Indigenous Peoples, delivered the keynote remarks on the 

Declaration and its aspirations. 

1 Tribal Law and Order Act, 25 U.S.C. § 2802 (2010). See also Indian Law and Order Commission, A 

Roadmap for Making Native America Safer, Chapter 5: Detention and Alternatives: Coming Full Circle, 

from Crow Dog to TLOA and VAWA (Nov. 2013), available at 

http://www.aisc.ucla.edu/iloc/report/index.html. 

2 The participant list can be found at Appendix B.

3 The Declaration asserts the right of indigenous peoples “to maintain and strengthen their distinct 

political, legal, economic, social and cultural institutions.” Article 5 (emphasis added). 

 
ii Expert Working Group: Native American Traditional Justice Practices

The goals of the workshop included: 

 

 Suggesting Federal priorities to support traditional justice,

 Identifying alternatives to incarceration based on Native American traditional practices, & 

 Identifying ways that tribes and the Federal government can support traditional justice 

for both Native American and non-Native American communities.

Participants engaged in facilitated discussions around the following panels:

 Framing the Issue: Traditional Justice Practices of Native American Communities,

 Examples of Successful Traditional Justice Practices,

 Overcoming Challenges to Building Successful Programs, & 

 The Future of these Programs.

4

At the conclusion of the facilitated discussions, the EWG put forward recommendations to the 

Federal government as to how it could best support these practices, which were refined by the 

participants through electronic correspondence after the meeting. 

As follow-up to the EWG, ATJ and TJS participated in the third Peacemaker’s Gathering held in 

Sulphur, Oklahoma on April 22-24, 2014 hosted by the Chickasaw Nation. The Peacemaker’s 

Gathering was funded in part by TJS and DOJ’s Bureau of Justice Assistance. On April 22, 

2014, representatives from ATJ and TJS participated in a listening session with conference 

participants and provided copies of the recommendations included in this report. Participants in 

the listening session repeated many of the same recommendations. 

This report provides an overview of the EWG’s discussions and recommendations. ATJ and 

TJS were pleased to create an opportunity for the Federal government to learn about these 

important practices and advance recommendations that can support the use of traditional justice 

throughout the country. 

4 The Workshop Agenda can be found at Appendix A.

 
Summary of Meeting 1

TABLE OF CONTENTS

EXECUTIVE SUMMARY......................................................................................................... i

FRAMING THE ISSUE........................................................................................................... 2

EXAMPLES OF SUCCESSFUL TRADITIONAL JUSTICE PRACTICES............................................ 4

Navajo Nation’s Peacemaking ................................................................................. 4

Lower Brule Sioux Tribe’s Talking Circles................................................................ 5

Village of Kake, Alaska’s Adult and Youth Circle Peacemaking............................... 6

Leech Lake Band of Ojibwe’s Wellness Court ......................................................... 7

OVERCOMING CHALLENGES TO BUILDING SUCCESSFUL PROGRAMS ..................................... 8

Appropriate Sentencing – Lessons Learned from 

Canada’s Aboriginal Communities ........................................................................... 8

Need for Increased Capacity – Role of Tribal Colleges............................................ 9

How to Create Sustainability – Support from Indian Legal Services ...................... 10

DISCUSSION .................................................................................................................... 11

Respect for Tribal Sovereignty............................................................................... 11

Need for Funding ................................................................................................... 11

Appropriately Measuring Success and Conducting Evaluation .............................. 12

Importance of Native Languages ........................................................................... 13

Community Education, Health, and Healing........................................................... 13

Safety and Planning............................................................................................... 13

Inter-Tribal Information Sharing.............................................................................. 14

THE WAY FORWARD........................................................................................................ 15

The Future of Traditional Justice............................................................................ 15

Transferring Practices to Non-Native American Communities ............................... 15

Recommendations to the Sponsoring Agencies 

from the Tribally-Aligned Participants..................................................................... 16

APPENDIX A: AGENDA ..................................................................................................... 19

APPENDIX B: LIST OF PARTICIPANTS ................................................................................ 23

APPENDIX C: RECENT FEDERAL EFFORTS TO SUPPORT TRADITIONAL JUSTICE................... 25
2 Expert Working Group: Native American Traditional Justice Practices

FRAMING THE ISSUE 

The EWG began with a general discussion on the history and use of traditional practices and 

recent efforts to support their use and integration into present-day responses to criminal and 

delinquent behavior. This discussion was led by Chief Justice Emeritus Robert Yazzie of the 

Navajo Nation, Justice Barbara Anne Smith of the Chickasaw Nation, and Steve Moore, Senior 

Staff Attorney of the Native American Rights Fund. 

Chief Justice Emeritus Robert Yazzie of the Navajo Nation 

Chief Justice Robert Yazzie opened the EWG meeting with a discussion of how Native 

Americans approach justice and reform. He described the traditional Navajo perspective in 

identifying conflict and the difficulty in addressing barriers, problems, or evil – which translates 

to naayéé in Diné. He provided his view of the barriers to improving safety in Indian Country: 

lack of funds for Tribal courts, fatigue in applying for discretionary grants because the money 

does not go where it is needed, high crime rates against Native American women, limited 

number of police officers, overburdened court systems, and lack of jail space. Chief Justice 

Yazzie noted the approach taken by the rest of the country does not fit the needs of Native 

American communities. 

Instead, he recommended that the paradigm for justice planning should include the following

four elements: (1) observation of the problem, which should include mediation, intuition, and 

prayer; (2) creation of a plan to approach problems from all sides, address them, and involve 

actors who need to be involved (e.g., this expert working group); (3) discussion of the plan and 

carrying it out in the most effective way (which he analogized to identifying where the enemy is 

located and then planning a coordinated attack); and (4) reflection and evaluation to learn 

whether the response was successful. 

He urged the participants of the EWG to talk and share their views. He noted that many know 

what the problems – naayéé – are, but the Federal response needs to be stronger. 

Justice Barbara Anne Smith of the Chickasaw Nation 

Justice Barbara Anne Smith discussed her efforts on behalf of the Chickasaw Nation to 

establish peacemaking in her community. She described the assistance of individuals 

represented in the EWG in guiding her through the process, which she described as lifechanging. She encouraged the EWG and individuals interested in peacemaking to become part 

of a peacemaking circle and stressed that one cannot simply study how it works to understand 

it. She described her experience teaching a seminar on peacemaking at Columbia Law School

by leading her students through peacemaking sessions, which she reported her students found 

transformative.

5

 She cautioned that rather than looking to “rules” to learn about peacemaking, 

individuals should experience it in order to understand how to implement it. 

5 Columbia University School of Law, Seminar in Native Peacemaking, 

http://web.law.columbia.edu/courses/L8803. Judge Smith also teaches a Peacemaking Seminar at The 

University of Oklahoma College of Law: http://www.law.ou.edu/content/smith-barbara. 

 
Summary of Meeting 3

She explained that from a courts’ perspective, peacemaking is about healing relationships. 

While the adversarial system often destroys relationships by creating winners and losers, 

peacemaking heals. She explained that participants learn how to listen to other peoples’ stories

and, in doing so, allow for the healing process to unfold because there is great healing when a 

person actually gets to tell his or her story. She noted that this was opposite to the experience 

in an adversarial court, where no one actually gets to tell their story. Moreover, in a 

peacemaking circle, participants can invite the people they need into the circle, which makes a 

difference because it allows for building and healing relationships. 

Justice Smith reported that the establishment of peacemaking in the Chickasaw Nation has 

worked very well. Those who are trained as peacemakers are committed to it. Individuals can 

either request peacemaking through the Supreme Court or can be referred to the process by 

Tribal judges, but it is not mandatory. 

She noted that people often ask if peacemaking “fixed the problem,” but she cautioned that that 

question misses the point. It is about healing relationships and when that is done, the issues fall 

by the wayside. 

Steve Moore, Senior Staff Attorney, Native American Rights Fund 

Steve Moore explained that the Native American Rights Fund’s (NARF) guiding principle for 44 

years has been the restoration of Tribal sovereignty and Tribal justice systems. Starting in the 

early 1990s, NARF began to focus efforts to support traditional ways of resolving conflict. Led 

by the Native American Bar Association, efforts to restore peacemaking elements in Indian 

Country have gained traction. He noted that today Indian Country legal systems are a hybrid 

that blends adversarial and traditional legal traditions. 

He described how the effects of the Federal government’s dismantling of Tribal institutions in 

the late 19th and early 20th centuries continue to be felt today. That included the removal of

Indian leaders from places of authority in their communities. He cautioned that the consequent 

loss of traditional ways of resolving conflict has not been appropriately studied or understood. 

Those ways, which did not need labels, existed for millennia before European contact and were 

valid and functional systems. 

Mr. Moore described NARF’s commitment to supporting the resurgence of these practices, 

including the launch of an Indigenous Peacemaking Initiative that grew out of a convening with 

Indian Legal Services and Tribal judges.6 He emphasized the necessity in creating a space for 

peacemakers to come together, but noted it was unclear how to support this work without 

hindering it. He asked the EWG to reflect on how to make a bridge—a connection between 

peacemaking and other aspects of criminal justice—without adversely impacting it. 

6 Native American Rights Fund, Indigenous Peacemaking Initiative’s website: 

http://www.narf.org/peacemaking/index.html. 

 
4 Expert Working Group: Native American Traditional Justice Practices

EXAMPLES OF SUCCESSFUL TRADITIONAL JUSTICE PRACTICES

The EWG then discussed examples of successful traditional justice practices. Given the nature 

of a one-day convening, only a handful of specific practices were mentioned. Thus, the 

practices discussed below are only a representative sample and not the universe of successful 

traditional justice practices. 

Navajo Nation’s Peacemaking 

Chief Justice Herb Yazzie 

Chief Justice Herb Yazzie provided an overview of the Navajo Nation’s legal system and use of 

traditional justice and peacemaking. He explained that Navajo law is not only traditional law, but 

includes modern human-created law. Traditional laws are fundamental laws of society, which 

work to protect younger people. He explained the importance of language, teachings, and 

traditional law and that there is a profound difference between the courtroom and what the 

elders teach. Chief Justice Yazzie explained that the judiciary’s role is to help the Navajo 

Nation’s citizens access their custom – language, ceremonies, teachings, and value system. 

He explained that peacemakers are not government employees, but that the Tribal government 

provides a small contribution to defray the costs of peacemaking and support education about

its use. Peacemaking guidelines are available online in the Diné language, where people can 

learn about recent developments in its practice and the theories around its use.7

 

The Nation’s efforts to try to improve access to the system have resulted in a joint Navajo 

Nation Supreme Court and Navajo Technical University project to establish a bilingual court 

reporter system funded by the Bureau of Indian Affairs. Transcripts can then be provided in 

either Diné or English, which are necessary for appellate proceedings. In the past, transcripts 

were prepared primarily in English because they were using non-Tribal contractors for court 

reporting services. When an elder or other witness spoke in Diné, the page was left blank. Chief 

Justice Yazzie expressed that in those instances, the judicial appellate proceeding was 

inadequate because the exchange in Diné was probably the most useful information offered in 

the entire trial. He stated that with today’s technology, it should be possible to have a system 

that can transcribe Diné when Diné is spoken. 

Chief Justice Yazzie remarked that while the Navajo Nation has a court system, and it is 

embedded in Navajo life, there is no reason to turn that system into a modern court – it must be 

compatible with traditional ways. The Nation has an ongoing process of indigenizing procedural 

rules. For example, when a grandmother accompanies a young person to a hearing and would 

like an opportunity to speak, many court rules would dictate that unless she is on the witness 

list, the judge should not allow her to speak. But not allowing elders and community members 

to speak creates a feeling that nothing was resolved. And in civil cases, people often leave the 

court angry and unwilling to talk to each another, which is not the Navajo way to resolve 

disputes. 

In addition to enhancing access to justice, using traditional Navajo custom produces costsavings. The Navajo Nation is expansive, and while technology might be used to allow 

individuals to avoid traveling long distances to appear as witnesses, the funding needed for 

7 See The Peacemaking Program of the Navajo Nation’s website: 

http://www.navajocourts.org/indexpeacemaking.htm. 

 
Summary of Meeting 5

these technological solutions is not available. Therefore, he urged, traditional justice practices 

should be used whenever possible. 

The Nation is also approaching access to traditional peacemaking systems by emphasizing the 

need to educate the young. The Nation has established relationships with school districts so 

that from kindergarten to 12th grade, peacemaking is available to resolve problems at school. In 

this way, the youth can hopefully be diverted from the courts. 

Chief Justice Yazzie also expressed his belief that domestic and family matters can be more 

appropriately handled through peacemaking. He argued that protection orders do not solve 

problems for Navajos – especially if they cannot communicate to resolve issues. Through 

peacemaking, healing can be achieved. 

Finally, he said in order for the Navajo community to survive and thrive, it is necessary to undo 

the oppressive system that exists, which results not only from substance abuse and alcoholism, 

but disrespect of the Navajo way of life. This disrespect is perpetrated by many, including 

Federal leaders, and impacts Navajo youth. He called for an open and public recognition of the 

laws and value systems that exist across the continent. 

Lower Brule Sioux Tribe’s Talking Circles 

Chief Judge Lorrie Miner

Chief Judge Lorrie Miner described the creation of a series of Talking Circles in the Lower Brule 

Sioux Tribal community starting in 2011. The first Talking Circle came out of a crisis when three 

young women attempted suicide. Out of these tragedies, Chief Judge Miner started a Girls’ 

Talking Circle, which continues to today. 

Funded by Public Law 638 monies from the Bureau of Indian Affairs, Office of Justice Services 

– Tribal Justice Support, the talking circle for girls has been a success. Used as a component 

of the girls’ juvenile probation when they are adjudicated delinquent, it serves as an alternative 

to detention. 

The talking circle provides a safe and respectful forum where the young women can share 

whatever is on their mind – good or bad. It can help to resolve conflict in their lives. For 

example, in April 2013, a young woman shared that she had been assaulted by her uncle, which 

resulted in an investigation that uncovered more victims and an indictment and criminal 

proceeding. 

A key component of its success is that the girls choose, with their parents’ approval, how to 

manage the circle. The probation officers can take the girls on field trips that are fun and safe – 

such as going out for pizza and a movie. 

Evaluating programs such as these is hard, but Chief Judge Miner noted that the metrics they 

use include reduced suicide attempts and gang activity, improved school attendance and 

graduation rates, and an overall better compliance with probation conditions. The talking circle 

now includes a substance abuse counselor, who has helped some of the girls with dependency

issues. And while those markers can be measured, Chief Judge Miner also notes the outcome 

of the talking circle itself is a measure of success: connecting troubled youth with positive role 

models and mentors from their community. 
6 Expert Working Group: Native American Traditional Justice Practices

Since the creation of the Girls’ Talking Circle, Lower Brule Sioux Tribe has added a Boys’ 

Talking Circle (funded through a South Dakota state grant), a Talking Circle for Women on 

Probation (funded through a Bureau of Indian Affairs Secured Continuous Remote Alcohol 

Monitor (SCRAM) grant, which incorporates cultural practices into the treatment program),8 and 

a Talking Circle for Men on Probation (funded by the Substance Abuse and Mental Health 

Administration’s Access to Recovery funds, which employs a case manager). The funding 

streams are disparate, but because the programs are gaining community support, Chief Judge 

Miner indicated that she intends to include a request for funding of these programs in her Tribal

court budget request to the Tribal government going forward.9

 

Village of Kake, Alaska’s Adult and Youth Circle Peacemaking 

Magistrate Judge Mike Jackson

While he was unable to attend the EWG meeting in-person, Magistrate Judge Mike Jackson 

submitted written information on the Village of Kake, Alaska’s Adult and Youth Circle 

Peacemaking. 

Judge Jackson noted that the Circle Peacemaking Flow Chart, available on the Village of 

Kake’s website, explains how matters are referred to the process. The circle peacemaking is 

generally considered the dispute resolution mechanism for the Tribal court10 and is administered 

according to a Judicial Code for Peacemaking and specific court rules.11

For the Youth Circle Peacemaking, the Alaska State Court System orders that minors 

consuming alcohol and first time offenders be diverted to the Alternative Dispute Resolution 

Group – Kake Youth Circle Peacemaking for Circle Sentencing. The Tribal Court works with the 

State Juvenile Probation Officer to support the Circle Sentencing for juveniles, and the Kake 

School District will call upon the Youth Court to facilitate in bullying cases or other concerns on 

school campus. The Youth Circle is facilitated by the youth, but adults are often invited to 

participate. 

Judge Jackson noted that success is measured through Tribal members’ participation, the time 

taken to hear cases, and the restoration of relationships – with victims being made whole and 

victims and wrongdoers finding support in their community. He explained that follow-up circles 

and celebration circles are held for participants who have reached milestones. 

The costs associated with the circles are minimal due to the generous donations of coffee, 

tissue, food, and other items by faithful volunteers and supportive community organizations. 

8 SCRAM is an alcohol monitoring anklet system that is worn by an offender after release from jail to 

monitor alcohol intake. Chief Judge Miner noted that the SCRAM program creates a cost-savings for 

tribal jails. Individuals who would otherwise be incarcerated are released using the ankle monitoring 

devices, which allows them to continue to work and provide for their families. The SCRAM devices cost 

$4.50 per day, while jail costs $125 per day. Chief Judge Miner reported a savings of over 6000 jail days 

have using the SCRAM devices. She noted her desire that these cost savings be reinvested to develop 

alternatives to detention.

9 Importantly, none of the costs are borne by the participants; otherwise participation would be cost 

prohibitive.

10 The Circle Peacemaking Flow Chart is available at http://www.kakefirstnation.org/flow_chart_CPM.pdf. 

11 Keex’ Kawaan Judicial Peacemaking Code is available at

http://www.kakefirstnation.org/OVKTribalCourts/judical_peacemaking_code.pdf. 

 
Summary of Meeting 7

Leech Lake Band of Ojibwe’s Wellness Court 

Associate Judge Korey Wahwassuck

Also unable to attend, Associate Judge Korey Wahwassuck of the Leech Lake Band of Ojibwe 

Tribal Court (currently a District Court Judge in Minnesota’s Ninth Judicial District) submitted 

written testimony for the EWG’s consideration. 

In 2006, the Leech Lake Bank of Ojibwe Tribal Court and the Cass County District Court 

(Minnesota), with the Cass County Probation Department and Minnesota Department of 

Corrections, entered into an agreement to create the multi-jurisdictional Cass County and Leech 

Lake Band of Ojibwe Wellness Court.12 The first of its kind, court jurisdiction is shared by the 

tribe and state.13 Judge Wahwassuck explained that the mission of the Wellness Court is to 

reduce the number of repeat substance dependent and driving while intoxicated (DWI) 

offenders by using a coordinated team approach with the Tribal Court Judge, the County District 

Judge, prosecutor, defense attorney, law enforcement personnel, social services workers, 

probation and treatment specialists, to quickly identify and intervene with selected non-violent 

substance-abusing offenders to break the cycle of substance abuse, addiction, and crime.14 

The Wellness Court is a post-conviction, post-sentencing DWI court that serves both Tribal

members and non-Indians. She explained court sessions are held in the Tribal and district 

courtrooms connected by interactive videoconferencing and clients have the option of appearing 

in whichever courtroom is more convenient for them. In 2009, a similar program for offenders 

charged with controlled substances was established with the Itasca County District Court. 

In 2010, a related program was launched for juvenile delinquency cases, where Tribal and nonIndian youths eligible for diversion may participate. She noted that this is the first step to 

creating a multi-jurisdictional juvenile delinquency program.

Judge Wahwassuck reported that joint jurisdiction has infused culture into the judicial process. 

The process has become key to helping people reconnect and learn about their culture and 

tradition and restore relationships. Spiritual healers have conducted naming ceremonies, sweat 

lodges, and talking circles. Participants previously disconnected from the Anishinabe traditions 

are becoming involved with their culture to great success—and in the process creating healing 

for the participants. And the partnership between the two courts and two sovereigns – the tribe 

and the state – has created healing between the communities. 

Judge Wahwassuck reported that the joint jurisdiction Wellness Court continues to operate 

successfully and with a significant reduction in recidivism. 

12 The Memorandum of Understanding that created the multi-jurisdictional Cass County and Leech Lake 

Bank of Ojibwe Wellness Court can be found at 

http://ccllwellnesscourt.files.wordpress.com/2010/10/memorandum-of-understanding.pdf. 

13 It should be noted that Minnesota is a Public Law 280 state and, thus, the tribe is without general 

criminal jurisdiction.

14 See Cass County and Leech Lake Bank of Ojibwe Wellness Court, General Information, 

http://ccllwellnesscourt.wordpress.com/general-info/. A flowchart of how the process works can be found 

by visiting: http://ccllwellnesscourt.files.wordpress.com/2010/10/general-overview-flowchart.pdf 

 
8 Expert Working Group: Native American Traditional Justice Practices

OVERCOMING CHALLENGES TO BUILDING SUCCESSFUL PROGRAMS

Appropriate Sentencing – 

Lessons Learned from Canada’s Aboriginal Communities

Professor Jane Dickson-Gilmore, Carleton University, Ottawa, Canada

Professor Jane Dickson-Gilmore of Carleton University in Ottawa, Canada described two 

sentencing-related initiatives in Canada that work with incarcerated people from Aboriginal 

communities using traditional customs and the challenges that were encountered. 

She noted that while Aboriginal people are 4% of the overall population of Canada, they make 

up 20% of the Federal prison population and 27% of the provincial prison population.15 She 

explained that Aboriginal communities suffer high rates of poverty, trauma, substance abuse, 

and violence and reservations are afflicted with high rates of crime and conflict. Despite efforts 

to reduce the overrepresentation of Aboriginal persons in prison through de-incarceration, 

recidivism remains a problem. Professor Dickson-Gilmore noted that underlying issues of 

poverty, historic trauma, and local power struggles within Aboriginal communities entrench 

these problems. She reported that in the meantime, many people are leaving their communities 

to escape the crime. 

With this backdrop, Professor Dickson-Gilmore described two criminal justice interventions 

based on traditional Aboriginal practice and challenges that have emerged:

Sentencing Circles: The practice of Sentencing Circles are intended to give community input 

into an offender’s sentence – with the rationale that those who know the person well are in the 

best position to decide a fair sentence and how it would be perceived by the community. There 

are two main types of Sentencing Circles in Canada: (1) Moses Circles, which include court 

personnel; and (2) Community Circles, which are organized outside of the court structure and 

run by a trained professional from the community with a sentencing determination made solely 

on the recommendation of the circle members. Importantly, research has shown no difference 

in recidivism between typical court sentences and these community based sentences.

16

Gladue Courts and Sentencing Reforms: The second practice she described was that of a 

Gladue Court,17 where a presentencing report called a “Gladue report” is prepared by a social 

15 Jane Dickson-Gilmore Presentation, available at http://prezi.com/idsd4_ittpid/expert-working-group-ontribal-justice/.

16 Id.

17 See Maha Jweied and Miranda Jolicoeur, Expert Working Group Report: International Perspectives on 

Indigent Defense (NCJ 236022) at 49-51 (Sept. 2011) (available at

https://ncjrs.gov/pdffiles1/nij/236022.pdf) (“Another restorative justice model used in Canada for 

Aboriginal communities is problem-solving courts staffed with Aboriginal community members. The most 

common problem-solving court in Canada is the Gladue Court. In Gladue Courts, court-personnel obtain 

extensive training on Aboriginal communities and the possible reasons why individuals from these 

communities are overrepresented in the criminal justice system. The Gladue workers create a 

comprehensive pre-sentencing report, which includes information obtained through meetings conducted 

with family and community members. They then work with offenders to help resolve problems and to 

prevent recidivism. The pre-sentencing report includes a risk-needs assessment to consider the 

resources the individuals need to overcome their problems. To date, evaluations of Gladue Courts 

indicate that they work well and are cost effective.”). 

 
Summary of Meeting 9

worker documenting the background of the offender, his or her involvement with the community, 

and a description of Aboriginal culture and related factors for the provincial judge (i.e., nonAboriginal court) to consider in sentencing. But there remains uncertainty as to whether this 

process is successful. From 2001-2011, despite overall reductions in crime rates, the Aboriginal 

inmate population (both men and women) has risen significantly.18

Professor Dickson-Gilmore suggested that one reason for this result is that the Gladue 

requirements do not trump any other rules that a court must follow in sentencing. Thus, 

offenders’ risk and need profiles continue to trump their Aboriginal status. Also, many 

communities that would seek to support the offenders at home simply lack the resources to do 

so. 

How to Improve these Processes: Professor Dickson-Gilmore concluded her presentation 

with some guidelines on how to make Aboriginal Justice more effective: (1) strengthen the 

capacity of the community before adding new processes (“build up the community before 

building on the community”) because the important work must come from the community; (2)

create clear goals from the outset; (3) do not demand that the communities take on challenges 

that outside communities have been able to resolve only through adequate funding – unless 

resources and funding are made available; (4) recognize that the solution is not simply more 

money – even wealthy communities face these same challenges (e.g., marginalization, historic 

trauma); and (5) think more broadly about success (e.g., a circle is not a failure if the offender 

ends up in jail; circles are empowering). 

Need for Increased Capacity – Role of Tribal Colleges

Professor Nora Antoine of Sinte Gleske University of the Rosebud Sioux Tribe

Professor Antoine discussed the importance of Tribal colleges in supporting traditional justice 

interventions. She cautioned that in deconstructing problems that exist in Indian Country – such 

as those related to crime and criminal justice – it is important to be aware of all of the factors 

that influence decision making in Indian Country. Tribal colleges serve an important role in these 

decisions: they impact community members and can influence outcomes. 

She noted that while ideally peacemaking belongs in the community independent of a Tribal

court setting – the resources and skills are not available to support these programs in this way. 

Thus, peacemaking is often linked with the courtroom. As such, community members perceive 

the Tribal court as the only place where conflicts can be resolved. But Professor Antoine 

suggested that Tribal colleges can provide input and support relatives in their homes where 

peacemaking should also occur. 

Professor Antoine asserted that Tribal colleges are long-term players with a stake in the 

community and the capacity to help facilitate peacemaking. Thus, any forward movement to 

support traditional justice should include Tribal colleges.19

18 Jane Dickson-Gilmore Presentation, available at http://prezi.com/idsd4_ittpid/expert-working-group-ontribal-justice/. 

19 More information about tribal colleges and universities (TCU) can be found on the American Indian 

Higher Education Consortium website at http://www.aihec.org/. 

 
10 Expert Working Group: Native American Traditional Justice Practices

How to Create Sustainability – Support from Indian Legal Services

James Botsford, former Director of Wisconsin Judicare’s Indian Law Office

Mr. Botsford discussed the role of Indian Legal Services in supporting indigenous and traditional 

justice and the rule of law. He noted that the indigenous way of thinking is more intuitive and 

cyclical – and thus very powerful. He noted it deals more with relationships and as a result, 

Native Americans struggle with the idea of retribution. As such, he urged that all civil problems 

and many of the criminal justice problems that exist in Indian county be resolved through 

mediation – and he noted that Indian Legal Services’ programs are positioned to assist these 

efforts.

He explained that there are 25 Indian Legal Services offices in the United States – collectively 

known as the National Association of Indian Legal Services (NAILS). 20 These offices serve 

Native Americans both inside and outside of Indian Country. Mr. Botsford was formerly the 

director of one of these offices: Wisconsin Judicare’s Indian Law Office.

In 2003, his office received some Federal funding, which was used to support a peacemaking 

initiative based on the recommendation of the Wisconsin Tribal Judges Association. Wisconsin 

Judicare trained 40 individuals in mediation and peacemaking using a formal mediation training 

with cultural and Tribal-specific components. But when funding was not renewed in 2005, 

sustaining the program was difficult. As a consequence, a number of trained peacemakers

remain unemployed. 

Fortunately, in 2010, NAILS offices working with NARF successfully obtained specific Federal

funding to support their work: the Tribal Civil and Criminal Legal Assistance (TCCLA) Program

administered by DOJ’s Bureau of Justice Assistance.21 Working with the Federal government 

and local communities, NAILS offices can use this and other sources of funding and expertise to 

help support and sustain the reemergence of indigenous justice in Native American 

communities.

20For a complete list of the National Association of Indian Legal Services (NAILS) offices, visit: 

http://www.judicare.org/content.cfm?PageID=52. 

21 For more information about the Tribal Civil and Criminal Legal Assistance Program, visit 

https://www.bja.gov/ProgramDetails.aspx?Program_ID=102. 

 
Discussion 11

DISCUSSION

Throughout the day, the EWG engaged in thoughtful discussions on the resurgence of 

traditional justice. Key themes emerged:

Respect for Tribal Sovereignty

All of the EWG participants stressed the need for the Federal government to respect Tribal

sovereignty as a predicate to revitalizing traditional practices.

 

A participant stressed that the impact of racism, colonization, and historical trauma is the root 

problem of crime in Indian Country. He noted that revitalization of indigenous processes is only 

possible once Tribal people perceive themselves as respected by the Federal government. 

Participants pointed out that they viewed the strained Congressional deliberations over the 

Violence Against Women Reauthorization Act of 2013 evidence of this lack of respect. Another 

participant asserted that Tribal communities will heal if the Federal government stops its 

disrespectful treatment of Tribal nations. Another participant concurred and stressed the need 

for the Federal government to give deference to Tribal tradition.

One participant stated that the Federal government must respect the traditional processes even 

if the outcomes are not always clear. She explained that the peacemaker plants a “seed” that 

takes root to heal people and create peace. So even if it does not look like much was 

accomplished, the seed was planted and much will come from it in the future. Respect of Tribal

governments, their people, and their ways is needed for the seed to take root. Another 

participant noted that indigenous systems themselves should be allowed to flourish, and all 

governments must be supportive of rebuilding indigenous systems.

Need for Funding

The EWG discussed the availability of existing Federal funds that support Tribal justice systems 

– both DOJ grants and DOI base funding – to support traditional justice institutions and 

processes. 

Experts noted that the use of grants creates problems for sustaining successful programs in 

future years when grant funding is not guaranteed or available. They stressed that the Federal

government must commit to supporting these programs continuously. A participant asserted 

that funding for Tribal courts is treated as discretionary when it should be recognized as a treaty 

obligation. 

Participants noted the importance of educating Tribal governments that they can include 

requests for funding of these programs in grant applications. Others remarked that Tribal

communities must come together and develop these programs collaboratively and from a 

multidisciplinary approach. 

Participants also noted that Federal grant officers must be educated to support this work and 

possibly provide guidance on how to incorporate traditional justice into existing programs. A 

participant proposed creating a working group to inform Federal leadership about these 

practices. EWG participants also discussed the difficulties with evaluating these practices, which 

is often required to obtain funding.
12 Expert Working Group: Native American Traditional Justice Practices

Appropriately Measuring Success and Conducting Evaluation

The EWG agreed that evaluating this work is difficult and challenged funders and grant officers

to help determine how to evaluate these programs properly. One participant noted that a usual 

measurement of criminal justice processes, length of time of proceeding, is unlikely to be a 

helpful guidepost in measuring peacemaking’s success because of the nature of the process. 

And while some peacemakers want to know how the process works out – i.e., whether conflict is 

resolved – sometimes not having people return is evidence of success. Alternatively, sometimes 

people come back six or seven times because they like the process, and they learn how to talk 

to each other.

Another expert noted that it is not possible to evaluate possible additional harms that are 

prevented as a result of this process. 

An expert noted that the metrics she uses to measure the traditional justice practice she leads 

include rates of gang activity, suicide, compliance with probation conditions, class attendance, 

drug use, and alcohol use. Another simple measurement that was suggested was the number of 

times the process was used in the community.

Another expert stressed that the community must specify what the goals are in order to 

establish metrics that can be linked to community needs. Over three years, she worked with 

communities through stakeholder circles of youth and elders (men and women) to create a set 

of goals that helped identify where the community wanted to be in five years after setting up the 

traditional justice system. The clear goals allowed for a clear path. She cautioned it was not 

easy and did not happen quickly, but was integral to help determine how to evaluate the 

program and assess whether the practice is logically connected to community goals.

Participants acknowledged that research is important to respond to evidence-based demands 

and that some research has already been funded, such as Eric Gross’ evaluation of Navajo 

peacemaking funded by DOJ’s National Institute of Justice.

22 But the EWG agreed more 

research is needed. A participant recommended that young Native researchers and 

statisticians should be brought in to help devise evaluation methodology because they are most 

familiar with these processes.

One participant encouraged the group to think about evaluation outside of the United States and 

to draw on international models that have been developed for systems that are more similar to 

Native American traditional justice practices. She also encouraged that evaluation and 

research be based on the questions that the community wants to know, not the evaluator. She 

urged cooperation between the communities and the Federal agencies so that the communities 

can come up with the evaluations themselves as a way to indigenize the courts and identify the 

correct evaluation process. 

Another expert cautioned that evaluation by the Federal government may be inappropriate 

altogether and wanted to avoid having the Federal justice system evaluate Native American 

justice, which is perceived as judgment by the Federal government. Instead, he recommended 

22 Eric Gross, “An Evaluation/Assessment of Navajo Peacemaking,” NCJRS No. 187675 (Feb. 15, 1999), 

available at https://www.ncjrs.gov/pdffiles1/nij/grants/187675.pdf; see also U.S. Department of Justice, 

National Institute of Justice, Tribal Resources Page at http://www.nij.gov/topics/tribaljustice/Pages/bibliography.aspx. 

 
Discussion 13

that the Federal government change its approach to providing assistance rather than grants. 

He recommended that the Federal government simply help with building the correct facilities 

needed for these practices to thrive -- instead of funding courthouses with benches and jury

boxes. 

Importance of Native Languages 

Another expert noted the need for bilingual court reporters for transcription services. Responses 

translated into English do not always appropriately reflect the meaning of the exchange that 

took place. For example, the meaning of Bibahazaanii in Diné is not simply fundamental law, 

but rather how the law originated in the first place. So supporting bilingual services supports all 

types of justice interventions in Indian Country.

Community Education, Health, and Healing

The EWG also discussed the role of the community in supporting these processes. One expert

recommended that immediately after a session, the leader of the intervention should solicit 

feedback from those community members who participated and continue to follow-up with them 

over time, which will allow people to learn whether they are achieving social change. She 

cautioned that a lot of advance work must be done in order for these communities to succeed. 

It is not possible to simply “dive-in.” She encouraged that experts ensure that the community is 

in a position to support the work and gauge feedback by following-up with the participants over 

time. Suggested questions to ask include whether the process is accessible and whether 

people are really using it. She cautioned that the problems are vast, so if the people are not 

using the process, then the community must first be educated before the full potential of the 

process can be achieved. Moreover, she noted that there may be people who want to be 

leaders of these processes who are not fully healed themselves and that it is important to have 

individuals who are not in crisis lead these efforts.

Another expert observed that teenagers who go through these processes educate and guide

other teens about them. This often results in participants being healthier, happier, and more 

trusting of the system.

A participant also noted that in order to determine who from the community should be included, 

it is necessary to look to the underlying issue. In other words, the intervention should include 

more than the two people involved in the core dispute, because the family will also likely need to 

be included to mend relationships.

Safety and Planning

The EWG also discussed the need for victim safety and planning. One expert noted that 

sometimes people participate in these interventions for the wrong reasons and elders who are 

the perpetrators of some of the worst harms try to participate, which can be counterproductive. 

She cautioned that these programs should be run by people who are well along in their own 

healing journey to prevent revictimization and new trauma. 

Many of the experts agreed that communities should have good safety planning in place for 

women and children in domestic relations cases handled by these processes. 
14 Expert Working Group: Native American Traditional Justice Practices

Another participant recommended that in establishing these processes, communities should

ensure that they are accessible across a Tribal nation because people will not drive 200 miles to 

participate in one. This is a particular issue for tribes with large land masses. 

Inter-Tribal Information Sharing

An expert noted that tribal members are eager to know their culture and learn how other tribes

are integrating traditional justice practices into their justice systems. Sharing information helps 

make this work accessible to everyone. Another participant noted the value of existing 

infrastructure to help bring together as much information as possible for continued research, 

media, and other resources so that the Tribal community feels connected to other tribes.

Relatedly, the experts agreed that flexibility is key to the success of these practices. An expert 

noted that communities must be able to define the approach that works best for them. She 

acknowledged that peacemaker courts and sentencing circles are wonderful tools, but other 

tools in other communities could also be effective. Communities must identify their own 

resources. They can reach out to tribes successfully using peacemaking for guidance, but that 

should not limit them from establishing a system that works best for their unique community.
 The Way Forward 15

THE WAY FORWARD

The Future of Traditional Justice

Associate Judge David Raasch, Stockbridge-Munsee Tribe

Associate Judge David Raasch described his commitment to peacemaking and his experience 

in overseeing both adversarial dispute resolution and peacemaking, which he called the original 

alternative dispute resolution process. He urged Tribal communities and governments to 

consider alternatives to the modern adversarial system – practices that he asserted have value 

in international settings. 

He explained that when a crime occurs, there is more at stake than merely the fact that laws 

were broken. He noted that sentencing circles provide more accountability to the community 

than a Western sentencing scheme. Judge Raasch recommended that Tribal governments 

move their focus from following the modern adversarial system back to traditional processes. 

Only after traditional processes are found to be insufficient, he argued, should Tribal

governments turn to modern ways. He noted the need for strong leadership to support this work. 

He recommended that the Federal government replace an overreliance on arrest and

prosecution with funding these healing ways of the spirit. He acknowledged that Federal money 

is available through funding streams like DOJ’s Coordinated Tribal Assistance Solicitation

(CTAS), but noted the difficulties tribes have in fitting peacemaking into some of the designated

purpose areas because they lack evidence-based research on the effectiveness of traditional 

justice. Efforts should be made to develop evidence-based research to more easily secure such 

funding.

He also cautioned that good code writing is critical to supporting these programs because 

peacemaking cannot compete with mandatory sentences. 

Judge Raasch concluded his remarks by recommending an annual coming together for all 

cultures in the spirit of peace to discuss and support peacemaking. 

Transferring Practices to Non-Native American Communities

Brett Taylor, Deputy Director, Center for Court Innovation 

Brett Taylor described the Center for Court Innovation’s (the Center) Tribal Justice Exchange, 

which, in addition to working with tribes to instill problem-solving justice principles into their 

Tribal justice systems, seeks to identify practices in Tribal courts that could translate to state 

court systems.23 While on a site visit to the Navajo Nation to help plan and launch the first 

community court in a Tribal court setting, Center staff witnessed the power of peacemaking and, 

with DOJ’s Bureau of Justice Assistance support, worked to develop a peacemaking pilot 

project in a state court, the Red Hook Community Justice Center in Brooklyn, New York.24 

23 The Center for Court Innovation’s Tribal Justice Exchange website is

http://www.courtinnovation.org/topic/tribal-justice. 

24 The Center for Court Innovation’s Peacemaking Program’s website is 

http://www.courtinnovation.org/project/peacemaking-program 

 
16 Expert Working Group: Native American Traditional Justice Practices

Mr. Taylor explained that in planning the Red Hook Peacemaking Program, the Tribal Justice 

Exchange held a roundtable of national leaders on peacemaking to discuss the feasibility of 

using peacemaking in a state court and how such a program could be implemented. 

Throughout 2012, the Center worked with Red Hook officials and community members to 

design the peacemaking program and recruited approximately 15 neighborhood volunteers to 

be trained as peacemakers. Experienced peacemakers from the Navajo Nation provided handson training to the Red Hook volunteers and helped guide the program to fruition. 

Mr. Taylor reported that just prior to the scheduled training with the Navajo peacemakers, 

Superstorm Sandy created massive devastation to the Red Hook neighborhood and flooded the 

Red Hook Community Justice Center, where the training was scheduled to take place. 

Nonetheless, the Red Hook volunteers agreed that the training should continue. The Navajo 

peacemakers used the trauma of the storm as an opportunity to use peacemaking for healing. 

The Red Hook Peacemaking Program was successfully launched in January 2013. At the time 

of the EWG, the program had received 18 referrals, and three cases had been completed. Mr. 

Taylor explained that the fourth case turned out to be problematic, but noted that as he learned 

from his mentors there is no case too difficult for this process. 

State courts in Michigan and Arizona have asked the Center for training and technical 

assistance to support the creation of similar peacemaking programs in their jurisdictions. 

Recommendations to the Sponsoring Agencies from the Tribally-Aligned 

Participants

At the EWG meeting and subsequently through electronic correspondence, the experts 

prepared the following recommendations to the Federal government on ways it could support 

traditional justice for both Native American and non-Native American communities: 

1. Tribal court judges should have more opportunities to learn from each other. Support 

should be provided for creating such opportunities, especially in coordination with, or in 

response to requests from, organizations of Tribal courts and/or judges working in those 

courts. 

2. Financial incentives should be offered to Tribes in order to further their vision of peace in 

their communities. 

3. Non-native criteria, especially in the context of grant or other funding requirements, should 

not be imposed on Tribes. It would be more suitable to collaborate with Tribes and other 

grantees concerning development of meaningful performance indicators in this field. 

4. Joint-jurisdictional opportunities, such as in Leech Lake/Cass County Minnesota, should be 

supported when appropriate by all relevant jurisdictions. 

5. Support should be provided for entire Tribal justice systems, rather than only court systems, 

when Tribes desire peacemaking implementation support. 

6. The National American Indian Court Judges Association and other organizations serving 

Tribal court officials should be supported financially to help Tribal courts reintegrate 

traditional justice models. 
 The Way Forward 17

7. Trainings offered by, or supported financially by, Federal agencies should utilize qualified 

American Indian/Alaska Native trainers whenever possible. 

8. Tribes should be allowed to apply for funds for new ideas that do not fit into currently defined 

purpose areas on grant applications. 

9. The Federal government should sponsor a National Day of Peace to raise awareness of the 

availability of, and successes of, peacemaking and other traditional justice systems in native 

and mainstream contexts. 

10. The Federal government should allocate funding for training on peacemaking.

11. Native American organizations, such as the Native American Rights Fund and others, 

should be funded so that they can continue peacemaking training and provide a platform for 

sharing best practices in Tribal peacemaking implementation. 

12. Tribes should be allowed flexibility to define and measure program success in ways that 

may not necessarily match Federal benchmarks.

13. Competitive grants are not sufficient to sustain successful programs, so the Federal

government should commit to sustaining Tribal programs that it currently funds through 

competitive grants. 

14. Funding should be treated as something that is necessary for the fulfillment of treaty 

obligations, rather than discretionary.

15. When the Tribal Law and Order Act is funded, tribes should be allowed to utilize funds for 

peacemaking rather than simply on more law enforcement and prosecution, because of the 

potential economic efficiencies to be gained. 

16. Federal technical support should be provided to help tribes develop the statistical record 

necessary to qualify peacemaking as either an “evidence-based practice” or a “promising 

practice” or both, and thereby open up the possibility of currently available funding for such 

practices to support peacemaking. 

 Appendix A 19

APPENDIX A: AGENDA

Monday, April 29, 2013 

8:30 – 8:45 Registration and Networking 

8:45 – 9:05 Opening Remarks and Prayer

Deborah Leff, Acting Senior Counselor for Access to Justice, U.S. Department of Justice

James Cole, Deputy Attorney General, U.S. Department of Justice

Kevin Washburn, Assistant Secretary for Indian Affairs, U.S. Department of the Interior

Jodi Gillette, Senior Policy Advisor for Native Americans, White House Domestic Policy 

Council

Opening Prayer: Chief Justice Emeritus Robert Yazzie, Navajo Nation 

 

9:05 – 9:15 Introductions and Workshop Goals & Outcomes 

Maha Jweied, Senior Counsel, Access to Justice Initiative, U.S. Department of 

Justice 

Tricia Tingle, Associate Director, Tribal Justice Support, Office of Justice 

Services, Bureau of Indian Affairs, U.S. Department of the Interior 

Overview of the Expert Working Group meeting’s goals and outcomes. 

9:15 – 10:45 Framing the Issue: 

Traditional Justice Practices of Native American Communities

9:15 – 9:45 Presentations: This panel discussion will provide an overview of 

the history and use of traditional practices and recent efforts to 

support their use and integration into present-day responses to 

criminal and delinquent behavior.

 Chief Justice Emeritus Robert Yazzie, Navajo Nation

 Justice Barbara Anne Smith, Chickasaw Nation

 Steve Moore, Senior Staff Attorney, Native American Rights 

Fund

9:45 – 10:45 Facilitated Roundtable Discussion

Facilitators

Maha Jweied, Senior Counsel, Access to Justice Initiative

Tricia Tingle, Associate Director, Tribal Justice Support, 

Office of Justice Services, Bureau of Indian Affairs 

All participants will have an opportunity to discuss their goals for 

the workshop and the questions they would like to explore over 

the course of the day.

10:45 – 10:55 Break
20 Expert Working Group: Native American Traditional Justice Practices

10:55 – 12:30 Examples of Successful Traditional Justice Practices

10:55 – 11:25 Presentations: Panelists will describe the traditional justice 

programs in their communities. 

 Chief Justice Herb Yazzie, Navajo Nation

 Chief Judge Lorrie Miner, Lower Brule Sioux Tribe 

 Magistrate Judge Mike Jackson, Village of Kake, Alaska 

11:25 – 12:30 Facilitated Roundtable Discussion

Facilitators 

Brett Taylor, Deputy Director, Center for Court Innovation 

Aaron Arnold, Director, Tribal Justice Exchange

The presentations will be followed by a discussion with all 

participants to understand benefits and challenges of these 

programs and processes. Federal participants who have 

incorporated Native American traditional justice into Federal

programs will also describe these programs and goals.

12:30 – 1:30 Lunch

Eric Wilson, International Affairs Coordinator, Bureau of Indian Affairs

Keynote: Professor James Anaya, UN Special Rapporteur on the Rights of 

Indigenous Peoples

1:30 – 1:40 Break

1:40 – 3:10 Overcoming Challenges to Building Successful Programs

1:40 – 2:10 Presentations: Panelists have assisted tribes in developing 

procedures for traditional justice programs and will identify 

potential challenges as well as strategies for overcoming 

obstacles to developing successful programs. 

 Professor Jane Dickson-Gilmore, Carleton University

 Professor Nora Antoine, Sinte Gleska University, Rosebud 

Sioux Tribe 

 James Botsford, Former Director, Indian Law Office, 

Wisconsin Judicare 

2:10 – 3:10 Facilitated Roundtable Discussion 

Facilitators 

Brett Taylor, Deputy Director, Center for Court Innovation 

Aaron Arnold, Director, Center for Court Innovation’s 

Tribal Justice Exchange

Continuation of the discussion on the benefits and challenges of 

these programs and processes.
 Appendix A 21

3:10 – 3:20 Break

3:20 – 5:40 Moving Forward

 

3:20 – 3:40 Presentations: Panelists will explore what is needed to sustain 

these programs and processes across the country—including 

programs for non-Native American communities.

 Associate Judge David Raasch, Stockbridge-Munsee Tribe 

 Brett Taylor, Deputy Director, Center for Court Innovation

 

3:40 – 5:40 Facilitated Roundtable Discussion

Facilitators 

Brett Taylor, Deputy Director, Center for Court Innovation 

Aaron Arnold, Director, Center for Court Innovation’s 

Tribal Justice Exchange

The Expert Working Group will be asked to develop 

recommendations on the use and/or support of traditional justice 

practices. 

5:40 – 6:00 Concluding Remarks and Prayer 

Maha Jweied, Senior Counsel, Access to Justice Initiative

Tricia Tingle, Associate Director, Tribal Justice Support, 

Office of Justice Services, Bureau of Indian Affairs 

Closing Prayer: Associate Judge David Raasch, Stockbridge-Munsee Tribe 

 Appendix B 23

APPENDIX B: LIST OF PARTICIPANTS

S. James Anaya 

Special Rapporteur on the 

Rights of Indigenous Peoples

Office of the High Commissioner 

for Human Rights

Geneva, Switzerland

James Antal

Deputy Associate Administrator

Youth Development

Prevention and Safety Division

Office of Juvenile Justice and 

Delinquency Prevention

U.S. Department of Justice

Washington, DC

Nora Antoine

Professor

Sinte Gleska University

Mission, SD 

Aaron Arnold

Director

Tribal Justice Exchange

Center for Court Innovation

Syracuse, NY 

James Botsford

Former Director

Indian Law Office

Wisconsin Judicare, Inc.

Wausau, WI 

James Cantrall

Deputy Director

Office for Victims of Crime

U.S. Department of Justice

Washington, DC 

Melanca Clark

Senior Counsel

Access to Justice Initiative

U.S. Department of Justice

Washington, DC

Sheila Cooper

Senior Advisor for Tribal Affairs 

The Substance Abuse and 

Mental Health Services 

Administration

Rockville, MD

Patrick Dunckhorst 

Juvenile Justice Program 

Specialist, OJJDP 

U.S. Department of Justice

Washington, DC

Jane Dickson-Gilmore

Professor

Department of Law and Legal 

Studies 

Carleton University

Ottawa, ON, Canada

Silvia Dominguez-Reese

Senior Counsel

Access to Justice Initiative

U.S. Department of Justice

Washington, DC

Kathleen ME Gless

Victim Justice Program 

Specialist

Office for Victims of Crime

U.S. Department of Justice

Washington, DC 

Kathi Grasso

Senior Policy and Legal Advisor

Office of Juvenile Justice and 

Delinquency Prevention

U.S. Department of Justice

Washington, DC

Leslie A. Hagen

National Indian Country Training 

Coordinator

U.S. Department of Justice

Columbia. SC

Nicole Hanna

Liaison, U.S. Department of the 

Interior – U.S. Department of 

Justice

Washington, DC

Norena-Ann Henry

Senior Policy Advisor 

Bureau of Justice Assistance

U.S. Department of Justice

Washington, DC

Paige Hausburg

Tribal Coordinator

Office of Child Support 

Enforcement

Administration for Children and 

Families

U.S. Department of Health and 

Human Services

Washington, DC

Sam Hirsch

Deputy Associate Attorney 

General

U.S. Department of Justice

Washington, DC

Magistrate Judge Mike Jackson

Customary & Traditional Officer

Kake Circle Peacemaking

Kake, AK 

Maha Jweied

Senior Counsel

Access to Justice Initiative

U.S. Department of Justice

Washington, DC 

Karen Lash

Senior Counsel

Access to Justice Initiative

U.S. Department of Justice

Washington, DC 

Deborah Leff

Acting Senior Counselor for 

Access to Justice

Access to Justice Initiative

U.S. Department of Justice

Washington, DC 

Chief Judge Lorrie Miner

Lower Brule Sioux Tribal Court

Lower Brule, SD 

Steven C. Moore 

Senior Staff Attorney

Native American Rights Fund

Boulder, CO 

David Morrissette, Ph.D. LCSW

Senior Program Manager 

Center for Mental Health 

Services 

The Substance Abuse Mental 

Health Services Administration

Rockville, MD

Steven W. Perry 

Statistician 

Bureau of Justice Statistics

U.S. Department of Justice

Washington, DC

Associate Judge David Raasch

Stockbridge-Munsee Tribe 

Bowler, WI 
24 Expert Working Group: Native American Traditional Justice Practices

Brett Shelton

Staff Attorney

Native American Rights Fund

Boulder, CO

Justice Barbara Anne Smith

Chickasaw Supreme Court

Ada, OK 

Brett Taylor

Deputy Director

Center for Court Innovation

New York, NY 

Gaye Tenoso

Deputy Director 

Office of Tribal Justice 

U.S. Department of Justice

Washington, DC

Patricia Thackston

Policy Advisor 

Bureau of Justice Assistance

U.S. Department of Justice

Washington, DC

Tricia Tingle

Associate Director

Office of Justice Services - Tribal 

Justice Support

Bureau of Indian Affairs

U.S. Department of the Interior

Washington, DC

Tracy Toulou

Director

Office of Tribal Justice 

U.S. Department of Justice

Washington, DC

Vicki Turetsky 

Commissioner 

Office of Child Support 

Enforcement 

U.S. Department of Health and 

Human Services 

Washington, DC

Eric Wilson

International Affairs Coordinator 

Bureau of Indian Affairs and 

Bureau of Indian Education

U.S. Department of the Interior

Washington, DC

Chief Justice Herb Yazzie

The Supreme Court of the 

Navajo Nation

Window Rock, AZ, Navajo 

Nation

Chief Justice Emeritus 

Robert Yazzie

Navajo Nation

Window Rock, AZ, Navajo 

Nation
Appendix C 25

APPENDIX C:

RECENT FEDERAL EFFORTS TO SUPPORT TRADITIONAL JUSTICE

U.S. DEPARTMENT OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS (BIA) 

http://www.bia.gov/ 

 Public Law 638 Contracts: The Bureau of Indian Affairs funds 190 Tribal Courts 

through Public Law 638 Contracts. Tribes may use this funding to support traditional 

justice processes, which many do including recently awarded base increase to Navajo 

Nation to support traditional peacemakers.

 One-Time Funding to Tribal Courts: The Bureau of Indian Affairs also provides onetime funding for Tribal courts that receive funding under the Public Law 638 contracting 

and competing process at the end of each fiscal year. Requests for funding under this 

mechanism must be submitted as a direct request by the tribe to fund costs associated 

with the traditional justice. Some tribes have requested and successfully received 

funding to support this activity in the past. 

 

 Tribal Court Assessment: The Bureau of Indian Affairs provides specific funding to 

tribes who participate in Public Law 638 contracting or compacting have gone through 

the Tribal court assessment. In the event that there is a strategic plan developed, the 

Bureau provides financial assistance and training and technical assistance to the 

reviewed Tribal court to the extent funding is available. If deficiencies are identified, 

additional resources might be available in this way. 

 Court of Indian Offenses (Code of Federal Regulation Courts): The Bureau of Indian 

Affairs, in collaboration with the Santa Fe Indian School owned by the nineteen pueblos, 

has launched an initiative to address student discipline infractions through traditional 

interventions, requiring the students to apologize to their pueblo governor. The students 

are also provided with a success counselor who will work as a liaison between the 

student and school administration, tribal government, and the court. 

 

 To learn more about these opportunities, please contact the Bureau of Indian Affairs 

Office of Justice Services – Tribal Justice Support: 

http://www.bia.gov/WhoWeAre/BIA/OJS/ojs-services/ojs-tjs/index.htm. 

U.S. DEPARTMENT OF JUSTICE, OFFICE OF JUSTICE PROGRAMS (OJP) 

http://www.ojp.usdoj.gov/ 

 DOJ Tribal Training and Technical Assistance Providers for Tribal Courts: 

http://www.justice.gov/tribal/tta.html#s4 

U.S. DEPARTMENT OF JUSTICE, NATIONAL INSTITUTE OF JUSTICE (NIJ) 

http://www.ojp.usdoj.gov/nij/ 

 OJP and NIJ-funded work on this topic can be found at: http://www.nij.gov/topics/tribaljustice/Pages/bibliography.aspx. 
26 Expert Working Group: Native American Traditional Justice Practices

U.S. DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE ASSISTANCE (BJA) 

http://www.ojp.usdoj.gov/BJA/

 Tribal Courts Assistance Program (which is found in Purpose Area 3 of the 

Coordinated Tribal Assistance Solicitation or CTAS): The purpose of the Tribal Courts 

Assistance Program (TCAP) is to support the development, implementation, 

enhancement and continuing operation of Tribal judicial systems. Competitive grant 

funding is available to federally recognized tribes of any size for implementing, 

enhancing and continuing the operation of Tribal courts, including improving indigent 

defense. Tribes can, and many do, use this fund to support traditional justice models. 

TTA is available to both tribes who receive grant funding and those who do not.

TTA resources: 

 Tribal Judicial Institute at University of North Dakota’s School of Law, more 

information can be accessed and assistance requested by visiting: 

http://law.und.edu/tji/tcap.cfm 

 National Tribal Judicial Center: http://www.judges.org/ntjc 

 Center for Court Innovation Tribal Justice Exchange Peacemaking Program: 

http://www.courtinnovation.org/project/peacemaking-program. 

 Indian Alcohol and Substance Abuse Program (available through CTAS Purpose 

Area 3): The purpose of the Indian Alcohol and Substance Abuse Program (IASAP) is to 

assist tribes in addressing alcohol and other substance abuse concerns through 

culturally relevant programs. Competitive grant funding is available to federally 

recognized tribes of any size. Tribes can, and many do, use these funds to support 

traditional practices and traditional justice models. TTA is available to both tribes who 

receive grant funding and those who do not. 

TTA resources:

o National Criminal Justice Training Center at Fox Valley Technical College: 

https://www.ncjtc.org/iasap/Pages/default.aspx 

 Healing to Wellness Courts through both IASAP and the Adult Drug Court Program, 

funds and TTA are available to support healing to wellness courts which rely heavily on 

traditional justice practices. Competitive grant funds are available to federally recognized 

tribes of any size. TTA is available to both tribes who receive grant funding and those 

who do not.

TTA resources:

o Tribal Law and Policy Institute: http://www.tribal-institute.org/lists/bja.htm 

 Tribal Justice Systems Strategic Planning (available through CTAS Purpose Area 2): 

This program designed to support tribes in developing a comprehensive tribal justice 

system strategic plan. A strong emphasis is placed on tailoring the process to each 

individual tribe’s unique resources and needs and many tribes chose to place an 

emphasis on incorporating traditional justice practices into their overall plan. Competitive 

grant funds are available to federally recognized tribes of any size. TTA is available to 

both tribes who receive grant funding and those who do not. 
Appendix C 27

TTA resources:

o National Criminal Justice Training Center at Fox Valley Technical College: 

https://www.ncjtc.org/TJSPP/Pages/default.aspx 

 Tribal Justice Systems Infrastructure Program (available through CTAS Purpose 

Area #4). The Tribal Justice Systems Infrastructure Program (TJSIP) is designed to 

assist tribes with planning, renovating and constructing justice system facilities such as 

correctional facilities, multipurpose justice centers (including courts), correctional 

alternative facilities, and transitional living facilities. TTA is available to both tribes who 

receive grant funding and those who do not.

TTA resources:

o National Indian Justice Center: http://www.nijc.org/CTASArea4.html 

 Tribal Civil and Criminal Legal Assistance Program (TCCLA)

The Tribal Civil and Criminal Legal Assistance (TCCLA) Program provides grants, policy 

leadership, and TTA to support federally recognized Indian tribes in enhancing their 

tribal justice systems and improving access to those systems. The grants are targeted to 

nonprofit organizations with a 501(c)(3) tax status to provide legal assistance services 

under tribal jurisdictions for Indian tribes, tribal justice systems, tribal members and 

where appropriate non-Indians. Resources serve to strengthen and improve the 

representation of all indigent defendants in criminal proceedings and tribal member, 

indigent litigants in civil causes of action under tribal jurisdiction. Legal support to tribal 

governments and tribal justice systems may include but are not limited to the 

enhancement of court policies, procedures, and code. Lastly, training and technical 

assistance funds are targeted to national or regional membership organizations and 

associations whose membership or membership section consists of judicial system 

personal within tribal justice systems. TTA funds support the development and 

enhancement of tribal justice systems, including peacemaking. Visit the BJA Tribal Civil 

and Criminal Legal Assistance Program web page at 

https://www.bja.gov/ProgramDetails.aspx?Program_ID=102

The National Tribal Justice Resource Center (Resource Center) of the National 

American Indian Court Judges Association (NAICJA) serves as BJA’s primary TTA 

provider to TCCLA grantees and provides TTA to tribal justice systems personnel, 

indigent defense services, tribal leaders, and those organizations seeking to provide civil 

legal assistance or public defense services to tribal communities and Alaska native 

villages. For more information, visit: www.naicja.org 

The American Probation and Parole Association (APPA) in partnerships with the Tribal 

Judicial Institute of the University of North Dakota and the National Tribal Judicial Center 

of the National Judicial College provides training and technical assistance to Indian 

tribes and tribal justice systems who are implementing or plan to implement enhanced 

sentencing authority provision authorized in the Tribal Law and Order Act. For more 

information, visit: http://www.appa-net.org 

 Tribal-State-Local Intergovernmental Collaboration

Under Section 222 of the Tribal Law and Order Act directs the Attorney General to 

provide technical assistance on strategies to promote intergovernmental collaboration 

among state, tribal, and local partners to develop successful cooperative relationships 
28 Expert Working Group: Native American Traditional Justice Practices

that effectively combat crime in Indian Country and nearby communities. Topic areas 

include law enforcement, prosecution, public defense, courts, including traditional forms 

of peacemaking, corrections probation and parole and offender reentry. As part of this 

effort, BJA is working with federal and Training and Technical Assistance partners to 

coordinate resources. BJA supports its grantees and nongrantee tribes to help build, 

enhance, or expand their activities as they relate to crime prevention, the administration 

of justice, and other significant efforts. A current list of BJA tribal justice TTA providers 

can be accessed through the tribal justice and safety web site: www.justice.gov/tribal

 National Training and Technical Assistance Center

BJA’s National Training and Technical Assistance Center (NTTAC) is a major source of 

criminal justice TTA information and resources, offering specialized assistance on 

current laws and evolving trends that affect the criminal justice field. BJA-sponsored TTA 

provides direct assistance to develop and implement comprehensive, systemwide 

strategies for public safety that also improve criminal justice systems. NTTAC supports 

criminal justice practitioners, elected officials, and citizen advocates in the following 

areas: training, information dissemination, technical assistance, and conference 

facilitation. For more information, visit the NTTAC web site at http://bjatraining.org/

U.S. DEPARTMENT OF JUSTICE, BUREAU OF JUSTICE STATISTICS (BJS) 

http://bjs.ojp.usdoj.gov/ 

 2014 National Survey of Tribal Court Systems, includes questions on traditional 

systems: https://www.tribalcourtsurvey.org/ 

U.S. DEPARTMENT OF JUSTICE, OFFICE OF JUVENILE DELINQUENCY AND 

PREVENTION (OJJDP) http://www.ojjdp.gov/ 

 OJJDP Tribal Youth Training and Technical Assistance Center, 

http://www.tribalyouthprogram.org/about-training-and-technical-assistance-center. 

 OJJDP and BJA, in partnership with the American Probation & Parole Association and 

the Education Development Center, Webinar: Alternatives to Incarceration in Indian 

Country on Thursday (June 20, 2013) (The goal of this webinar was to provide Tribal

justice agencies with an overview of the wide variety of alternatives to incarceration that 

can implemented into a menu of sentencing options and programs to enhance the 

community-based services provided to justice-involved Tribal members.) 

(https://www2.gotomeeting.com/register/458326794) 
Appendix C 29

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, SUBSTANCE ABUSE AND 

MENTAL HEALTH SERVICES ADMINISTRATION (SAMHSA)

 Addiction Technology Transfer Center Network, June 5, 2013 Webinar: “The Utilization 

of Traditional Based Practices for American Indians/Alaska Natives with Substance Use 

Disorders: Research and Treatment Implications” (Information regarding the use of 

traditional based practices for American Indians/Alaska Natives with substance use 

disorders and the research and treatment implications.) 

(http://www.attcnetwork.org/regcenters/EventDetails.asp?rcID=22&eventID=10533) 

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, INDIAN HEALTH SERVICE 

(IHS) http://www.ihs.gov/ 

 The Indian Health Service’s Division of Behavioral Health, Webinar: Partnering with 

Justice Systems for Behavioral Health Treatment and Prevention (September 24, 2013) 

(This webinar looked at both Healing to Wellness Courts and the Victim Advocate 

support system, the goals of the approaches, the barriers encountered, and the ways 

behavioral health practitioners can forge productive partnerships with stakeholders in the 

justice system.)

U.S. DEPARTMENT OF VETERANS AFFAIRS (VA) http://www.va.gov/ 

 Veterans Justice Outreach (VJO) Program & Health Care for Re-Entry Veterans 

(HCRV): VJO Specialists are responsible for direct outreach, assessment, and case 

management for justice-involved Veterans in local courts and jails, and liaison with local 

justice system partners; their contact information is available at: 

http://www.va.gov/homeless/vjo.asp. HCRV Specialists provide outreach to Veterans 

approaching release from state and Federal prison; their contact information is available 

at: www.va.gov/HOMELESS/Reentry.asp. Both VJO and HCRV Specialists can be used 

as a resource by Tribal courts to help divert justice-involved veterans from incarceration 

and get them the help they need and have earned through their military service. 

Traditional processes may be integrated into this activity. 

 Resource for Justice Involved Veterans – A Guide for Tribal Justice Systems: The 

Guide describes several efforts currently underway to address the need for treatment 

and other services among Veterans in the criminal justice system. Veterans Treatment 

Courts (VTC) are an example of one approach, although not the only one, and receives 

particular attention. The Guide discusses the components common to most VTCs and 

suggest the steps a Tribal government may take to implement a certain piece of the 

model. One purpose of the Guide is to provide interested Tribal governments with a 

breakdown of how VTCs work and identify the movable parts of various programs that 

would allow Tribal governments to choose the parts it wants to explore using in its Tribal

justice system – including systems that incorporate traditional justice. No less important, 

the Guide is intended to identify resources available to justice-involved Veterans, 

regardless of whether their communities have adopted the VTC model. The Guide can 

be accessed at: 

http://www.va.gov/TRIBALGOVERNMENT/docs/resources/Resources_for_JusticeInvolved_Veterans-Final_Version.pdf