Indigenous Justice and Indigenous Difference in Washington v. Roberts and Guthrie
Last Thursday marked the first day of what is without question the most widely publicized legal proceeding in Tlingit history. In the 750-person lumber and fishing town of Klawock, Alaska, 12 self-proclaimed tribal judges pondered the fate of two young criminals. The “tribal court” had the trappings of authenticity: the hall had been ritually purified with a “devil’s club” branch, and some of the judges wore red and black ceremonial blankets and gestured with eagle and raven feathers. But there were abundant reasons for skepticism, both of the tribunal and the sentence it was likely to mete out. Not least of which was its presiding magistrate: one of the more creative cross-cultural jurists in recent legal history, Rudy James [Van Biema 1994].
In the mid-1990s, what I term “the banishment case” excited anthropologists, criminologists, indigenous rights activists and others working in the fields of law and justice. In August 1994, Washington State Superior Court Judge James Allendoerfer agreed to a “unique experiment in cross-cultural justice” when he allowed two Tlingit youths convicted in a brutal beating and robbery to delay their mandatory jail sentences and face a traditionalist tribal court in Alaska. With the state court’s sanction, the Kuye di’ Kuiu Kwaan tribal court banished the two youths, Simon Roberts and Adrian Guthrie, both seventeen at the time, to remote and uninhabited islands in Southeastern Alaska for a period of twelve to eighteen months. According to tribal court organizers and other proponents, the banishment was meant to provide a culturally-specific, therapeutic alternative to incarceration.
Allendoerfer’s experiment attracted national and international attention and initiated widespread debates about the potential role that indigenous cultural difference should play in mainstream US jurisprudence. These debates largely centered on the extent to which indigenous cultural traditions and epistemologies should (or could) be accommodated by US legal systems. The banishment also generated a great deal of optimism about the potential of tribal law to revive cultural traditions and to offer positive judicial alternatives for American Indians facing high rates of incarceration.1 Yet, by the time the banishment ended in late 1995, it was surrounded by controversy and, by most accounts, believed to be a definitive failure.2 The traditionalist tribal court that arranged the banishment was accused of mismanaging it. There was dissension within various Tlingit communities as to who could legitimately represent their issues in the state court, who could participate in the tribal court, and even whether banishment was a genuine and culturally authentic form of punishment. Further, many at the time expressed concern about the negative impact the banishment case might have on the future of other tribal justice initiatives, and critics have more recently argued that the banishment has worked to discredit the idea of tribal justice in the eyes of the non-Indian public (e.g., Bradford 2000).
But why was the banishment such a failure? According to mainstream accounts in newspapers and magazines, internal tensions between traditionalist tribal bodies and federally-recognized tribal organizations undermined the legitimacy of the process. Further, the credibility of Rudy James, the driving force behind the Kuye di’ Kuiu Kwaan tribal court, was consistently challenged throughout the banishment. Many questioned both his motives and his authority, and charges of nepotism, opportunism, and corruption were leveled against James and his supporters. Thus, one might conclude that the banishment’s failure was merely a case of individual corruption and of “in-fighting” within a small community.3
In this chapter, I explore the colonial and neo-colonial relationships that underlie the production of indigenous difference in the banishment case. I argue that the concept, execution, and ultimate collapse of the banishment is illustrative of a double bind in the cultural production of indigeneity in which the very conditions that enable indigenous peoples to make compelling legal claims based on difference can simultaneously lead those claims to failure. I will show how the problems surrounding this case were narrated in terms of indigeneity and demonstrate how the deployment of such culturalist discourse in law creates a specific interpretive context in which broader political assertions, especially those concerning sovereignty and land rights, are potentially undermined.
INDIGENOUS JUSTICE IN NATIVE NORTH AMERICA
Early legal anthropologists looked at different forms of social interaction in order to excavate and articulate the legitimate “rules” of so-called primitive societies (e.g., Bohannan 1957; Gluckman 1955; Llewellyn and Hoebel 1941; Pospisil 1958). They described these rules as “customary law” and as part of discrete, homogeneous, and relatively static communities and paid little or no attention to outside historical forces or power relations. By the 1960s and 1970s, the focus of legal anthropology began to shift away from this “rule-centered paradigm” to a processualist one that understood law as diachronic and as inextricably linked to wider historical, political, social and economic systems including colonialism (Comaroff and Roberts 1981; Moore 1978; Nader and Todd Jr. 1978). Later studies insisted that so-called customary laws were not simply ancient indigenous practices, but rather constructs of colonial governments, initially created as forms of domination and control, and rooted in the complex historical, political, and economic relationships of colonial projects (Chanock 1985; Cohn 1989; Hobsbawm and Ranger 1983; Moore 1986; Snyder 1981). More recent works have made more explicit law’s relationship to power, especially in the postcolonial context (see e.g., Garth and Sarat 1998; Hirsch 1998; Keesing 1992; Lazarus-Black 1994; Lazarus-Black and Hirsch 1994; Merry 2000; Nader 1990; 2002; Starr and Collier 1989). Within legal anthropology and other sociolegal disciplines, there has been a great deal of interest in the postcolonial manifestations of indigenous law and custom throughout the world (e.g., Collier 1999; Merry 2000; Miller 2001; Sierra 1995, 2005). Such works have shifted their focus away from more descriptive modes to analyses of how concepts of indigenous culture, tradition, and difference function in complex and often deeply politicized ways.
As indigenous peoples throughout the world continue to assert self-determination and to make claims to territory, intellectual property, artifacts and human remains, and as more nation-states begin to formally recognize indigenous peoples as having certain rights within their systems of law, ethnographic research becomes invaluable in its ability to elucidate subtle forms of local knowledge and to make sense of these forms in larger contexts.
Many claims made by indigenous communities in Canada and the United States have coalesced around issues of law and justice including the implementation of restorative justice. While restorative justice is a broad term encompassing diverse ideas and activities, it is generally understood as an alternative system of justice concerned with restoring balance and harmony to a community damaged by criminal or anti-social activity (Braithwaite 2002; Cragg 1992; Galaway and Hudson 1996; Strang and Braithwaite 2000; Zehr and Toews 2004).4 Proponents of restorative justice define it in opposition to mainstream or “retributive” justice systems that only seek to punish, arguing that restorative justice is focused on healing all parties affected by crime, namely the victim, the offender and the community (Consedine 1999; Hazlehurst 1994; 1995b; LeResche 1993; Linden and Clairmont 1998).
Although not limited to them, restorative justice has become a guiding principle for many indigenous groups seeking to gain control over the administration of justice in their communities (Dickson-Gilmore and La Prairie 2005; Gray-Kanatiiosh and Lauderdale 2006). In this context, indigenous restorative justice is seen as a strategy of decolonization, as a return to earlier principles and forms of justice that existed in communities prior to the imposition of foreign laws and practices by colonial governments (Hazlehurst 1995a; Lujan and Adams 2004; Porter 1997; Zion 2006). Encompassing a variety of practices including tribal law, peacemaking, and customary law, the realm of indigenous justice is considered to be epistemologically distinct from (and often diametrically opposed to) Western legal formations. While there are subtle variations in the nature of these distinctions, some of the more consistent assertions are that indigenous justice is based on traditional egalitarian principles, and that it works by consensus to restore harmony and heal the community. Many advocates view it as an articulation of community healing, cultural revitalization, and self-determination in response to the ineffective, culturally insensitive, and discriminatory criminal justice systems of the state (Hylton 1995; Lee 1997; Melton 1995; Ross 1996; Ryan 1995; Valencia-Weber 1994; Yazzie 1998; Zion 1998; Zion and Yazzie 1997).
Despite its implied critique of statist justice systems, restorative justice has also become an important alternative for nation-states grappling with the expense of courtroom procedures, ever-expanding rates of incarceration, and public perceptions of a failed system. As a result, governments and courts have been more willing to consider restorative justice measures whether formally or informally.5 Formalized restorative justice measures, often adapted to be “culturally specific” for indigenous peoples, include mediation, alternative dispute resolution (ADR), diversion programs, and family group conferencing (FGC), all of which look for alternatives to traditional courtroom procedures and incarceration (e.g., Haberfeld and Townsend 1993; Huber 1993; O’Donnell 1995).
Restorative justice has become a highly politicized field, especially in indigenous communities. In both the United States and Canada, indigenous peoples comprise a much larger percentage of the prison population than the general population and are also more likely to be the victims of crime (Greenfeld and Smith 1999; Monture-Angus 1996). Critics of restorative justice in its current forms have argued that measures like family group conferencing, created and sanctioned by the state, are mere “indigenizations” of extant bureaucracies that are firmly rooted in colonial structures and fail to relinquish any real power to indigenous groups (Cunneen 1998; Fleras 1996; Havemann 1988; Tauri 1998; 1999). Other scholars critique the ideological dimensions of restorative justice, asserting that it rests on oversimplified and stereotypical notions of cultural difference with no attention to cultural specificity, histories of religious and political colonization, and anthropological contextualization. They argue that counter-posing typologies of western versus indigenous justice is a part of “continuing colonization,” as it fails to address the complexity of these issues (LaRocque 1997:87). Further, the formal nature of state-sanctioned restorative justice programs is often considered to run counter to indigenous cultural conceptions of justice (Guest 1999; Hylton 1995; Nielsen 1991). Yet others suggest that while state law has historically co-opted customary law for its own coercive purposes, it is possible for laws based on indigenous ideas to be counter-hegemonic (e.g., Matsuda 1988; McNamara 1995).
Despite academic critiques of the colonial invention of tradition, arguments advocating a “return” to a pre-contact epistemology and practice in the realm of indigenous justice have great moral and political force. 6 Some scholars have argued that contemporary invocations of “customary law” are not mere descriptions of practice but are also strategic political assertions used to further the claims of indigenous peoples (see e.g., Comaroff 1995; Jackson 1995; Sierra 1995). Others have demonstrated that state institutions and practices constrain indigenous peoples, compelling them to define themselves in the very terms imposed by European colonialism, including contemporary forms of multiculturalism. Specifically, the importance of missionization and other forms of religious colonization in the constitution of discourses about “harmony” and “healing” go unexamined (Comaroff and Comaroff 1991; Nader 1990; Ramos 1998). Further, restorative justice discourses about “traditional” legal practices often rely on these same ethnographic sources and notions of culture from early legal anthropologists.
The banishment was part of an emergent trend among indigenous peoples internationally, but especially in postcolonial Anglo democracies like the US, Canada, Australia and New Zealand, to reclaim customary or tribal law and to make assertions of self-determination through particular cultural-legal claims and practices. For instance, throughout the late 1980s and into the 1990s, some indigenous groups began to assert jurisdiction over their members in criminal sentencing, arguing both that the postcolonial nation-state had failed in its mandate to provide equal and effective justice for all, and that it had an obligation to recognize the legal autonomy of indigenous peoples. Such trends marked a specific shift in indigenous peoples’ legal engagements with the state, from mainly seeking redress through statist legal institutions to asserting greater legal autonomy in national and international frameworks. Further, these indigenous assertions operated as powerful critiques that underscored key fictions operating in western legal systems such as colorblind equality and highlighted the social, cultural, and historical specificity of concepts like rights, justice, punishment, and evidence.
At the time of the banishment, there seemed to be great hope for the power of this type of “legal pluralism” to address weaknesses existing in the mainstream legal system. Mainstream courts in the United States were seen to be in crisis, as part of bloated and overextended bureaucratic systems which offered little or no hope for justice, healing or rehabilitation. Activists, scholars, and a broader public alike began to look to tribal courts and other indigenous justice initiatives for solutions. These solutions were nearly always posited as completely other to mainstream jurisprudence.
In what follows, I argue that the conception of an alternative justice system based on an ostensibly radical indigenous difference is seriously limited by appeals to romanticized notions and by a failure to acknowledge the historical conditions that shape indigenous/settler relations.
In August 1993, Simon Roberts and Adrian Guthrie, two sixteen-year old Tlingit cousins from the small community of Klawock, Alaska, were visiting family in Everett, Washington. After an evening of heavy drinking, they robbed and viciously beat a twenty-five-year-old pizza delivery-man, Tim Whittlesey, with a baseball bat, and left him for dead. Although Whittlesey survived the attack, he nevertheless sustained permanent injuries to his hearing and eyesight. Roberts and Guthrie were quickly picked up by police for the crime, and in 1994 pleaded guilty to charges of aggravated robbery in Washington State Superior Court. Both faced mandatory prison sentences of between three and five and a half years.7
By the time of their sentencing hearing, Roberts and Guthrie had spent nearly a year in detention. In response to a petition from Rudy James, a tribal court judge from the traditionalist Kuye di’ Kuiu Kwaan court in Klawock, Alaska, Judge Allendoerfer agreed to delay the teens’ prison sentences and release the young men into James’ custody to face a different kind of sentencing. The youths would be punished by what James claimed was a traditional Tlingit sentence: banishment.8 Controversy from different sources erupted before the custody transfer even took place. The assistant deputy criminal prosecutor for Snohomish County, Michael Magee, presented a motion in late July of 1994, asking that Allendoerfer reconsider his decision. Magee asserted, “It seems in reality the defendants are simply being released to their respective grandparents for the next 18 months, and the court would be without jurisdiction to direct the grandparents….” He also pointed out that Rudy James’ authority as a tribal judge was disputed by the Klawock Cooperative Association (KCA)–the only Tlingit tribal entity recognized by the federal government’s Bureau of Indian Affairs (BIA). Further, according to Magee, the banishment plan was also challenged by another tribal body, the Tlingit-Haida Central Conference, a tribal court association also recognized by the BIA. The state of Alaska also opposed the plan, arguing that banishment of a minor “could constitute criminal non-support under the law.” Finally, Magee expressed concern about the lack of availability of Tlingit-owned islands appropriate for the banishment, contending that “‘banishment to an island’ is not possible as circumstances now stand.”9
In response to Magee’s motion, Allendoerfer presented a list of ten questions about the banishment plan to defense attorneys and gave them two weeks to answer. Allendoerfer asked for assurances that the tribal court proposed by Rudy James actually existed, and that banishment and restitution were in fact Tlingit traditions.10