Re-creating rituals of legal justice in an Alaska Tlingit Village
(Compare the following description of a legal process with the Kpelle Moot described in your readings.)
My focus on Tlingit legal and environmental concerns results from my own fieldwork and research in the community of Kake, Alaska. (K Fulton)
Challenging the hierarchies of ‘man’s law’ or Euro-American law
What if justice became an opportunity for:
• Communities to take more direct responsibility
• Victims to have more agency in their victimization experiences
• The offender to participate in a personal confrontation of a very serious nature.
(Criminologist Nils Cristie)
Note: After the Alaska Native Claims Settlement Act was implemented in the early 1980s (see lecture 5.4), and Kake people began managing their lands through a corporation, life changed dramatically. People in Kake had worked for cash in fishing and cannery jobs, but their cash economy was a supplement to their traditional foods subsistence economy. In the 1980s, that balance changed and so did the health of the community.
As loggers from outside came to Kake to log their forest as part of corporate money-making efforts, much of the money from selling the logs to Japan was distributed among the people in the village, who over night had become corporate shareholders instead of forest caretakers. The distribution of thousands of dollars did not last long because the corporation leaders – newcomers to the world of capitalistic rules and corporate strategies – made some poor decisions. Still, while the money did come in, people’s lives changed and the 1980s was a horrendous decade. For example, Kake’s suicide rate was close to the highest in the nation during that decade. Drug and alcohol use skyrocketed, as well as murder, violence, and other dysfunction. In the end, few villagers saved their money but spent it on gifts, boats, cars, etc. etc. Remember, theirs was an economy based on gift giving and generalized and balanced reciprocity rather than negative reciprocity. It is not surprising that so little money was saved in banks. Hording and saving is a western value. The changes to a cash economy were much too abrupt for people to adapt.
Towards the end of the decade, after four young men had committed suicide in the span of a few weeks, a newspaper reporter from Anchorage came to Kake to write a story. When the story was published it was picked up by the media nationwide and even worldwide. Kake people were truly embarrassed to have the world know about their tragedies. The publicity became a kind of intervention. They held a town meeting where people cried, and talked, and yelled, and accused and cried again. Because of this meeting and the newspaper article, several people seemed to ‘wake up’ and want to change things. They realized that it was up to them to work to restore health to their community.
Restoring health, they realized, meant helping their children to be proud of being Tlingit, rather than ashamed of it. Health meant revitalization of Tlingit values, and it meant finding ways to heal from addictions, hurtful memories, and loss of culture.
Changing the legal system was one of their solutions.
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People in Kake, Alaska are approaching justice as transformative for the whole community
• Took charge of their own justice process
• Did not ask for state permission
• Learned from Canadian Tlingits how to perform restorative justice through Circle Peacemaking
• Success rate more than 97 percent, more than 120 cases by 2006
Kake Magistrate
“The justice system as we know it doesn’t work because it’s adversarial. It really doesn’t involve the victim. The state becomes the prosecutor and the state is the victim. It doesn’t resolve problems; it just adds to problems in the village.”
Presently Kake justice works in conjunction with the Alaska State justice system. Kake’s restorative justice system deals with misdemeanors but felonies are still referred to state law enforcement.
If someone, especially a young person, has broken the law or needs intervention, she or he has the choice of going through the formal state legal system or through the circle sentencing process. Law enforcement officials have said that the circle is actually a harder, longer process than going through courts and even going to jail.
Kake was recognized in 2003 by the John F. Kennedy School of Government, Harvard University for its Circle Peacemaking work. Part of the award included funding to teach the circle process to other Native American groups. The circle process and philosophy can be shaped to fit within various cultures and communities
Once someone has been referred to the sentencing circle, people in the community volunteer to participate. Family, friends, teachers, etc. of the perpetrator and the victim (if there is a victim) are encouraged to participate in the circle.
When people sit in the circle they:
• Shed their roles and become equals. (Police officers, judges, etc. take off their hats and become part of the circle, sharing power equally with other circle participants.)
• Spend three to ten hours doing what they call “talking from the heart”
• Help the victim to avoid blaming himself or herself
• Assist the offender in understanding the result of his or her actions
• People who have made similar mistakes in the past might tell about who they hurt and what they learned
The circle participants eventually decide, by consensus, what the sentence will be and what the wrongdoer needs to do in the course of the following year to reconcile and heal his or her misdeed toward the victim and the community as a whole. A plan is created to help the victim heal as well. If there is a victim, the circle’s main focus is on assisting her or him to heal.
The circle process is an important element. Sometimes non-Native people have tried circles less successfully because they did not understand the circle guidelines. However, Kake people have been teaching people in communities all over Alaska, Native and non-Native to successfully conduct restorative justice circles. Kake leaders say that the circle can work in any community. The process involves taking the situation seriously, practicing confidentiality, using respectful rather than blaming language, and using a talking piece to ensure equal opportunity for speaking. The circle keeper begins with a prayer or spiritual thought to acknowledge the seriousness and sacredness of the circle process. She or he has a talking piece, which is passed to the person on her or his left. No one else may talk except the person holding the talking piece. [A talking piece can be any object, even a rock, or a stick.] When the speaker is done she or he passes the talking piece to the person sitting left of her or him. The talking piece does not travel across the circle to anyone who wants it. It goes around the circle from person to person. If someone does not want to talk, that is fine. He or she passes the talking piece to the next person. People are guided to speak only from their own hearts and not in response or in argument with someone else’s message. The language is to be respectful and without blame, as I said before. (See the circle guidelines as another attachment in this lecture folder.)
I was trained in circle peacemaking and have taken the circle to groups who were in need of reconciliation. Several people tell me that they realized through the circle that they rarely listen to the whole of what someone says in conversation. Usually they are busy constructing a response to what someone else is saying rather than listening deeply. In the circle participants are able to listen to the whole of what other people are saying because they know that when their turn comes, their job is to speak only about their own stories or from their own heart.
Discourse about the circle
Circles are Old and Universal. People everywhere sat around campfires and talked things over in egalitarian societies.
• In the past the circle was about survival
• A group or community could not survive if there were problems between its members
• Decisions were made about what was best for the community
• What was best for the community was that people healed
• The same is true today. The circle is still about survival.
In Kake young people are learning to participate in community justice. They have been asked to teach young people in other communities how to create a youth circle.
Circles and the rules for communication that go with them are powerful resources for:
• celebrations
• conflict resolution
• education about peacemaking processes and solutions
Interestingly and significantly, Tlingits in Carcross, Canada were at the forefront of creating a circle-sentencing model that included community consensus and involvement and would be effective in healing of victims and offenders and thus the whole community. Canadian Carcross Tlingits taught Kake tribal members and others the basic philosophy and process, and have taken their workshops all over Canada, the United States, and internationally, receiving recognition from the Queen of England, among others.
Tlingit teachers from Carcross, Canada, during a 2004 workshop, compared more traditional and indigenous justice with contemporary Western justice.
(See videos of Phil and Harold Gatensby. They were instrumental in creating circle justice in their Canadian Tlingit community in conjunction with crown judge Barry Stewart, who is also featured in one of the videos.)
In a 2004 workshop in Kake, Carcross Tlingit Harold Gatensby and Tagash clan member Mark Wedge, compared more traditional Tlingit and other indigenous justice with contemporary Western justice. They said that laws and justice can be distinguished between Creator’s Law or Woman’s Law and Man’s Law.
Man’s law is based on hierarchy.
Man’s law includes:
- punishment
- power over others rather than shared power
- property
- money
- persons becoming objects
- judgment of the whole person
- fear
- win or lose
In man’s law you are going to be punished. In man’s law if you’re rich, you win, and in man’s law forgiveness is like a cuss word.
Gatensby and Wedge teach that creator’s law is based in the circle. Everybody lived in creator’s law at one time. All tribes had circles, even European tribes. Circles are not new. They are old. They are inclusive. They belong to the universe.
Circle members teach that in the past, the circle was about survival because a group or community could not survive if there were problems between its members. In the past, decisions were made about what is best for the community, and what is best for the community is that the people heal. The same is true today. The circle is still about survival.
Creator’s law includes:
- love
- respect for all life
- forgiveness
- what goes around comes around
- all things are connected
- honor
- giving/sharing
- prayer
To quote the two Canadian teachers:
“In creator’s law, if you tease people, you more than likely will become like what you are teasing. That’s the law. If you’re greedy, the law is that something will happen to you because of your greed. In man’s law you can get away with things. Nobody gets away with creator’s law.”
Man’s law is written everywhere, like a blanket over everything. These laws can destroy your life. These laws make us think creator’s law doesn’t apply to us.
Creator’s law is re-remembered as woman’s law or female law, according to the Carcross teachers, who ask, “What is the one way to get from woman’s law and healing to man’s law and punishment and hierarchy?” Their answer, “Gossip.”
In addition to connecting the circle to creator’s and women’s law, Kake people also describe their work as linked to more legalistic traditional Tlingit peace keeping methods. In the words of the Kake magistrate, “The old way was called Ax Guawakaai. What it really means is the deer people. They don’t hurt anything other than eating shrubs and plants. And all kinds of predators prey upon them, and everybody benefits from them. But back then it was a pretty rigid way of settling disputes. And this (the circle) is probably a fingernail sketch of it, of what they used to do.”
Restorative justice through circle peacemaking
Two fundamental notions:
• The wrongful act was a breach between the wrongdoer and the victim/community
• The well-being of the community and protection of its members depends upon healing the breaches of the two relationships
Justice researchers Albert Dzur and Susan Olson said this:
In the formal justice system that we take for granted, justice is performed for us by lawyers, judges, police officers etc. People are passive observers rather than participants. The law becomes separated from people, in a sense. Lawbreakers often see themselves as committing a crime against the state rather than having hurt other people by their actions.
Dzur and Olson noted in their research about circles and restorative justice:
• When the public participates in justice on a personal level,
… then the community has a means to exercise its responsibility for its members.
• This is an improvement over suffering crime passively and being dependent upon the coercive power of the state for protection and order.
The researchers also noted the following key virtues of public participation and dialogue:
• Airing of values, reacquainting each other about what we believe is good and right. In circles people talk about why expectations and laws exist on a personal level. They talk about what kinds of values are important to the community and why. This rarely happens in formal legal proceedings.