Aviva Simon-Pottharst
Last week, members of the Tribal Justice class traveled to the Yurok Reservation to spend a day at the Yurok Tribal Court. The Reservation is in Northern California, about an hour’s drive from the Oregon border, and encompasses a 47-mile stretch of the mighty Klamath River that is the lifeblood and cultural center of the Yurok people. We arrived at nine in the morning to observe the Adult Wellness and Guardianship calendars; the Juvenile calendar had been rescheduled to the afternoon so that kids did not have to miss school.
For the past nine weeks, our class has explored the concept of justice from the perspective of Native American tribes. Tribes are sovereign nations, and for this reason many have their own court system. There are hundreds of tribes (the federal government currently recognizes 566, of which 109 are in California, with hundreds more lacking recognition), each with a unique history and culture, and so the tribal “perspective” on justice is by no means monolithic. Our course has focused on California tribes, and already we have had the privilege of visiting two tribal courts with notably different customs and approaches to achieving justice.
That being said, there are some fundamental similarities that underpin many tribes’ conceptions of justice. Tribal justice is often restorative rather than punitive. Tribal courts tend to take a holistic approach to justice, relying on the participation not just of the perpetrator/plaintiff and the victim/defendant, but of family and community members. In these ways and countless others, tribal courts integrate their cultural values and norms when they carry out justice.
One of the first things Chief Judge Abby Abinanti pointed out to us as we entered the courtroom is that the four tables in the room, when pushed together, reveal a map of the Klamath River inlaid into the wood. A Yurok Tribe member designed and built it with stones from the river. The courtroom sits about ten people. Judge Abby sits at one of the tables, on the same level as everyone else.
The Yurok Tribe has called the lands in and around the Reservation home since time immemorial. The Tribe has survived disease brought by Europeans, Gold Rush-era bounty hunters, California laws that legalized the enslavement of Native Americans, and federal assimilationist efforts such as boarding schools and the theft of children through forced adoptions. The Tribe has also witnessed a sharp decline in the health of the Klamath River, largely due to hydroelectric dams built upstream during the 20th century. This year is the second year in a row the Tribe has declared there will be no fishing season: there are no salmon in the river.
The Yurok Tribal Court is charged with grappling with the innumerable effects of this historic trauma and environmental degradation. The court provides a range of services to the Yurok community, including a Wellness Court, which provides a path for healing for tribe members involved in the justice system; Child Support Services; Elder Advocacy; Hey-wech-ek’ (“I survive”) services for survivors of domestic violence; a Re-Entry Program for tribe members released from state and local correctional facilities; a Legal Access Center; and the Skuy-ech-son’ Program, which provides culturally appropriate healing services for people having relationship problems such as physical or emotional abuse. Many of the programs have high success rates, and have drawn the attention local judges, some of whom have been willing to transfer cases against tribal members to the Yurok Tribal Court. The programs have also attracted several non-Indians who have entered the state court system due to problems such as substance abuse and have requested to participate in the Tribe’s programs. Occasionally, the Tribe has been able to accommodate these requests.
As we toured the building and met the court staff, Laura, a paralegal and Yurok tribe member, told us, “It’s all about restoring balance. People who come here are out of balance. We don’t punish people for being out of balance.” After the tour, we sat down to observe the Wellness Court. The first party did not show up. But the paralegal, the bailiff, and the parole officer each contributed an update about her: she was seen at home cooking dinner for her kids recently; she was seen out in the community; she seemed to be doing well. Judge Abby continued the case. She later explained that sometimes when people do not appear she sends one of her staff out to look for them, or she goes and searches for them herself.
The next few cases were called and continued quickly – Judge Abby seemed to know all of the facts and issues involved already. She is, after all, a member of this community, and the people who appear before her are her neighbors, cousins, and friends. Here, as one of my classmates aptly put it, justice is not separate from everyday life.
This concept is foreign to the Western justice system. A state or federal judge who finds herself presiding over a case involving even her acquaintances would need to recuse herself. When a classmate later commented on this to Judge Abby, she said the concept of giving a stranger the power to make decisions for you is foreign to Yurok culture. On the contrary, the authority and legitimacy to make such decisions comes from knowing the parties outside the courtroom, and from being aware of what is going on in their lives or in the greater community that could be causing them to fall out of balance.
That being said, Judge Abby explained that there are some matters she feels are not hers to resolve. Once, two men came before her to resolve a fishing dispute where one claimed the other was encroaching on his fishing hole. In Yurok culture, the right to fish in a certain place is passed down through families from generation to generation. The men had been fishing next to each other for 30 years. Judge Abby sent them to talk with one of the Tribe’s male dance group leaders, and they were able to reach a resolution.
After both calendars were concluded, we stayed in the courtroom to ask questions. The parties in one of the Guardianship cases had requested a trial. Mediation is the court’s preferred method, and Laura, who is a mediator as well as a paralegal, said that she will sit down with parties five hundred times if that’s what it takes. But the parties in this case had tried mediation and didn’t think it was going anywhere, so Judge Abby granted their request. One of my classmates asked what the trial would look like. “It’s not good practice to let someone else make decisions about your family,” Judge Abby explained. While she would make a decision for them if it came down to it, she would still encourage them to come to an agreement at the trial.
I left the courthouse with the sense that some healing had occurred that day. No case had been “resolved” definitively, and Judge Abby had even set a trial, something the court works hard to avoid. But this is what the parties wanted; Judge Abby didn’t impose it on them. This utter lack of coercion set my experience at the Yurok Tribal Court apart from any other experience I have had in a courtroom. “People like to be respected so they can respect back,” said Judge Abby. The parties had decided a trial was the best way to reach a resolution, and Judge Abby respected their wishes.
Western courts go to great lengths to cast their opinions in terms of “logic” and “rationality.” Western justice purports to be neutral, because to have personal connections to the dispute is to invite prejudice. The Yurok Tribal Court, on the other hand, considers emotion, spirituality, and personal connection as inextricable and vital components of justice. For those of us who are disillusioned with many aspects of the American legal system, the Yurok Tribal Court provides a hopeful reminder that there are functioning justice systems that focus on restoring people rather than punishing them when they lose their way. It is also a reminder that there is much we can learn from tribes. Educating ourselves about tribes and working to promote tribal sovereignty is a great place to start.
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