On Justice
“The more I consider the condition of the white men, the more fixed becomes my opinion that, instead of gaining, they have lost much by subjecting themselves to what they call the laws and regulations of civilized societies.”
Tomachichi, Creek Chief
Dear Human People,
Our story, the story of Tribal Nations in this country, is important to you. Because, if you do not know our story, you can not right yourself or help to right this country that your ancestors have created. Each of you will have to define for yourself, your family, your community — what is justice? What does it look like? And what is my role?
How can you not hear them weeping? Those you have hurt, or ignored while they were hurt in your name, and those whose hurt has continued from the ancestors. The ancestors who were lied to, murdered, prevented from protecting the beings left in their care, their homelands, families, and communities by the overwhelming hatefulness of a belief system based on a collective expression of values defined in evilness and greed.
If you are reading this you may have a strong belief that things are “not right” in these stolen lands. Many of you are not in relationships with any tribal people. Many of you believe that you personally are not racist, have not contributed or continued to benefit from the race-based decision making of this country. But in believing these myths, you have forgotten your origin story, your ancestors' trials and the decisions made to steal, murder, plunder this land for you and your children and your children's children.
The legacy of colonization and genocide of Indigenous people dates back to 1492, when Christopher Columbus arrived in the U.S. After the brutal American-Indian Wars, (massacres) indigenous populations declined sharply from 5–15 million people to just under 250,000 people (History.com, 2018). When enslavement began in 1619, the histories of brutality and domination ran parallel and continue to manifest in today’s criminal legal system.
And you can design a better system, as we have done here in the Yurok Tribe. The Yuroks found that U.S. justice systems did not reflect or support traditional Yurok values of responsibility, cooperation and community. So we are creating a modern-day Yurok system of justice, the Yurok Tribal Court, a broad network of programs to meet the needs of Yurok people based upon Yurok traditional values. We Yurok people have been on this land since time immemorial. We remain here, exercising our aboriginal rights to self-governance, preserving our cultural and spiritual traditions, stewarding our homeland.
So go back to the time before, when things were right. Look at how we lived, how we protected, how we bore our responsibilities as humans. See our values and maybe you can then look at your systems, your creations because unjust and racist practices have been institutionalized in your system, as is clear from the outcomes.
I am to tell you about some of today’s symptoms and pain — symptoms of a broken political, legal, and criminal system. I am here to talk about these things so that we can uncover truth, to move towards what is right, and to give you some hope that a better system is possible.
It is only through understanding and unveiling where we are today — what is “not right” — that we can recreate these systems. These systems need to be recreated not only to support Tribal people — the true, original people of this country — but to protect all of us as one nation today, and those most marginalized among us. Today, we fight for our lives to matter by a system never meant to protect them.
Across the United States, 1 in 3 Tribal People are living in poverty, with a median income of $23,000 a year. Only 53 percent of children attending Bureau of Indian Education schools graduate from high school. American Indians and Alaska Natives (AI/AN) face opioid-related fatalities at three times the rate for Blacks and Hispanic-Whites (Murphy et al., 2014). The Centers for Disease Control and Prevention (CDC) further reported an opioid overdose rate of 8.4 per 100,000 for AI/ANs, second only to Whites.
Today, the top U.S. Coronavirus hot spots are all in Indian Country. In fact, if Native American tribes were counted as states, the five most infected states in the country would all be native tribes, with New York dropping to №6, according to a compilation by the American Indian Studies Center at U.C.L.A.
Last month, Andrea High Bear, a mother of 5, was killed by your Justice system. Her story is the story of so many Native women — it is emblematic of the pain, looting, resource stripping, neglect, and disinvestment we have experienced at the hands of the American government. Andrea died in federal custody, while being treated for COVID-19 most likely resulting from in-custody contact, after delivering her baby via cesarean section on a ventilator.
Blood memory (i.e., Epigenetics) tells us that the cycles of trauma will not end with Andrea High Bear. Instead, the trauma will likely continue with her newborn and her other children, if we don’t do something systemically and individually to right these wrongs.
Native Americans are more likely to be killed by law enforcement than any other group (CNN, 2017). “Native American men are also four times more likely to go to prison than White American men and Native American women are six times more likely to go to prison compared to their white counterparts” (Roosevelt Institute, Cornell University, 2017).
Andrea’s convictions were minor and non-violent, the nature of which a civilized society could have — and would have — prevented and treated to make her well. Instead, Andrea received a death sentence. After being charged and convicted, Andrea was unnecessarily transferred to federal prison well into a pandemic carrying known risks to her life, and it was on that journey and in that prison that she got sick.
Devastatingly, Andrea High Bear was not the first in her family to die while incarcerated. Her sister-in-law, Sarah Lee Circle Bear, also died in jail while pregnant because of a nonviolent drug crime in 2015, after complaining of severe abdominal pain but being ignored (Vice, 2020). The mother of two boys, she died a preventable death 5 years before her sister was subject to a similar tragedy.
Andrea and Sarah’s people are the Cheyenne River Sioux. The Cheyenne River Sioux Tribe is comprised of four Lakota bands: Minnicoujou, Itazipco, Siha Sapa, and Oohenumpa. Prior to the invasion of white colonizers and their displacement in what is now called South Dakota, these bands were traveling people without boundaries, hunters in search of the sacred buffalo. On the Cheyenne River Reservation today, over 42% live below the poverty line.
You, reader, and everyone in this country, stand on the law that created these outcomes for Andrea and Sarah, the fiction of law created by your ancestors, a “divine right” of your manifest destiny. Our ancestors spoke of your created systems often:
“In the government you call civilized, the happiness of the people is constantly sacrificed to the splendor of empire. Hence the origin of your codes of criminal and civil laws: hence your dungeons and prisons.
We have no prisons; we have no pompous parade of courts; we have no written laws; and yet judges are as highly revered among us as they are among you, and their decisions are as much regarded.
We have among us no exalted villains above the control of our laws. Daring wickedness is here never allowed to triumph over helpless innocence. The estates of widows and orphans are never devoured by enterprising swindlers.
We have no robbery under the pretext of law.”
Joseph Brant, Mohawk
How do we move forward, both with regard to tribal justice and wellness, and as an American nation reckoning with our current harmful criminal justice system?
The Yurok Tribal Court, where I have served since 2008, represents one model for change. Finding that U.S. justice systems did not reflect or support traditional Yurok values of responsibility, cooperation and community, the Yurok Tribal Court has evolved into a broad network of programs to meet the needs of Yurok people according to Yurok traditional values.
Throughout Yurok Tribal Court programs, responsibility is stressed over blame, healing and acknowledgement of generational trauma is paramount, and the tools to do better are made available. While it is complicated, it is also simple.
Not only does the Court function to resolve conflict through cultural values of responsibility in community, but it has also grown to treat the root causes of conflict, the deeper wounds inflicted by colonial invasion and centuries of systematic oppression. Our comprehensive wellness programs, including joint programs with neighboring counties, facilitate direct conversations between the courts, service providers, and participants, and provide practical, individualized resources, from substance abuse treatment to assistance with work clothes, to transportation support, helping people get to an appointment. Our domestic violence and intervention programs provide culturally relevant healing. Our reentry programs attempt to wrap system-affected Tribal families in culture, community and fulfill basic needs for the long journey out of incarceration.
We, all of us who are now occupying this country, our homelands, must look to a collective value system that can re-shape the practices of our systems. In the words of the Cheyenne River Sioux:
If the old ones shared today the wisdom they garnered in their lifetimes they would likely explain that human history reflects man’s inability to find peace because in peace there is no need for power and man has not learned to live without power…The earth is in labor trying to deliver a new and enlightened people that can understand oneness, equality, sharing and generosity. She has labored long. We are all children of the Earth, all came from her womb for creation is present in all life if it is as simply defined as the nature that surrounds and sustains us all. Many who are awakened now know…All must learn to walk a Red Road as a way of life.
We must, each of us, dedicate ourselves to that re-shaping if any of us are to survive, thrive and leave to our children a homeland that is not twisted in hatred and greed — if we are to change the blood memory. None of us can change it all, but all of us can first change ourselves.
What can you do?
In your community, examine what the system looks like today and look at ways to change it. Find activists and advocates in your community who are targets of these harmful systems, and work with them in allyship to bring about change.
Partner with others and make the effort to change to make that system be one based on “our values”, the collective values we must find again and truly embrace of caring for each other, all of the beings in our homeland, and our homelands, a gift from the gods that we have not well care for in these last few hundred years.
And for all of our sakes do NOT walk past those who are weeping, not this day, not any day.
To get you started, we’ve provided a list of resources below:
Resources
- Association of American Indian Affairs
- Indian Country Media Network
- Native American Rights Fund
- Native America Today
- Native America on the Web
- Partnership with Native Americans (PWNA)
- Women Empowering Women for Indigenous Nations
- Tribal Law and Policy Institute
- Dissecting Whiteness
- How to be an Anti-Racist
- Inventing the Savage: The Social Construction of Native American Criminality
- To learn more about the Yurok Tribal Court and other models of indigenous justice, please watch Tribal Justice.
About the authors: Judge Abby Abinanti has been Chief Justice of the Tribe since 2008. She served as a San Francisco Superior Court Commissioner for approximately 20 years, assigned primarily to Dependency and Delinquency. Abby was the first California native woman to be a member of the State Bar, and to be appointed to a state judicial position. She is newly appointed by Tani G. Cantil-Sakauye, Chief Justice of the California Supreme Court to the Co-Chair of the Tribal Court-State Court Forum.
Contributing researchers include: Amber Miller, Yurok Tribal Court Legal Access Center, Katherine Katcher, and Faride Perez-Aucar. Edited by Damali Robertson.
