Tribal Justice

After a federal judge struck down the Indian Child Welfare Act (“ICWA)” a few weeks ago, many have written about the continued need for ICWA, given both the lingering effects of historical racism and forced separation, along with proof that many of these dynamics continue to persist.  Undoubtedly, the treatment of Indians by federal and state governments has played a dominant role in creating the high rates of poverty, alcoholism, and suicide, among the other serious public health risks, in the community.

            When confronted with evidence of such a crisis, it is easy to view a community simply as a collection of their problems.  Public interests lawyers are particularly susceptible to falling into this trap.  Our minds quickly focus on the myriad problems our clients face that we need to solve, especially when so many have ignored – or contributed to – these problems over the years.

            But what if we flipped the script.  Rather than view communities as a collection of ills that must be fixed, instead we first seek to learn from them, discover their strengths, and try to improve our own lives and systems as a result of that knowledge.  In other words, make the relationship reciprocal – we learn from each other.  We help each other.  We grow together.

            I was reminded of these lessons this past week after watching the stirring documentary, Tribal Justice, which profiled the stark differences in how state and tribal courts adjudicate proceedings affecting families. I walked away from the screening with a profound sense of sadness of how state courts are missing the mark in how to approach disputes, and how much we can learn from the tribal court approach.

            That approach centers on relationships, particularly between the judge and the community she serves.  The judge is embedded in the community, knows its families and is in kinship with those appearing before her.  Not only does she render decisions, she also serves as a resource, helps mediate disputes, and participates in community functions.  In one particularly touching scene in the movie, one judge is walking around a crowded room, heaping food onto the plates of families graduating from drug treatment court.  While doing so, she is also delivering high-fives and hugs to smiling families.  She is flipping the script.  She is reminding members of her community that they are people worthy of being served.  And that she too is a member of their tribe.

            By building these types of relationships, she is able to dig deeper into the profound questions of what brought the family into the court system.  What led to the cycle of violence in the family?  How many generations back does the violence date?  What role did forced separation play in contributing to the family’s situation?  How does that knowledge allow us to move forward to help the family?   

            To this judge, court is not simply a forum to resolve technical legal disputes.  It is a place to explore why a family is struggling, what created the dispute, and how can the entire community help the family heal.  Court is a place in which the balance of the community can be restored.  In this model of decision-making, a judge must intimately know the litigants before her.  Without this relationship, true justice can never be dispensed.

            As I drove home after watching the movie, I reflected on the state court system I call my home.  Courts are located far from the communities they serve.  Judges don’t reflect the demographics of the litigants and know very little about them. Attorneys frequently don’t really know the clients they represent.  Caseworkers commonly rotate on and off a case, leaving families confused on whom to turn to in times of crisis.  After the proceedings conclude, we return to our separate communities, where “those people” do not live.  Courts no longer represent a place to heal.  For families in the system, it is a place to escape from.

            A personal story captures this dynamic.  Fifteen years ago in Washington, DC, I represented a teenager in the foster care system who had a lot to be angry about.  Her mother was addicted to drugs.  Her extended family could not care for her.  She bounced from one group home to another.  She was mad.

            At one court hearing, she angrily refused to tell the judge her name, confused as to why she needed to give her name to a stranger, especially since it was written all over his file.  The judge was furious.  He screamed at her, threatened to hold her in contempt, and said that a child would not manipulate him, or control his courtroom.

            I asked for a quick break, counseled my client on why she needed to tell him her name and convinced her to cooperate.  She reluctantly agreed.  Back on the record, after the child acceded, the judge proudly remarked, “See, this is tough love in action.  Sometimes you need to be tough for kids to learn.”

            But the judge missed an important truth.  “Tough love” first requires love.  And love requires strong, meaningful relationships with those we serve.  Those relationships are built slowly over time, both in and out of the courthouse, and are mutual.  That is, both sides, learn from, respect and help one another.  That love did not exist in the D.C. courtroom that day. 

            So yes, there is a well-documented public health crisis occurring in many Indian communities that needs to be addressed.  But there is so much more in these communities that we must learn from.  To start, let us work to incorporate their model of dispensing justice based on relationships so that we may strengthen our court process that all too often fails to heal families and restore communities.