Through colonization, the Indigenous practices of restorative and holistic justice were replaced with the punitive system we see today, but Indigenous criminal justice advocates in Montana are reclaiming the traditional methods of promoting healing and preventing crime.
History of restorative and holistic justice
You may have heard the term “restorative justice” before. It is often used to refer to methods in juvenile court or in victim advocacy that are primarily focused on the needs of crime victims. However, the broader philosophy of restorative justice aims to have a ripple effect into the larger community, and the goal is to restore the justice-involved person.
“Restorative justice in the Western sense generally employs a set of tools and practices designed to resolve conflict,” Montana Innocence Project Executive Director, Amy Sings In The Timber, said. “While some of these methods may share an intersection with Indigenous practices or even be derived from them in some instances, Westernized restorative justice often differs from traditional Indigenous practices on a fundamental level. Indigenous peacemaking does not exist apart from restorative healing practices. They are one in the same.”
While the Western social movement of restorative justice began in the early 70s in the states, Indigenous peacemaking practices have existed among tribal communities for hundreds of years or more. Colonization and subsequent federal Indian policy, both written and unwritten, have served to disrupt and destroy these practices. However, several tribal governments have actively been working to reestablish traditional practices through the design of peacemaking courts, development of culturally specific frameworks, and drafting of peacemaking laws.
Restorative and holistic practices currently taking place in Montana include providing social services to address underlying motivations of criminality, providing access to culture for incarcerated people to help them heal, and assisting formerly incarcerated people reenter society and reestablish strong bonds with their culture and communities.
Providing social services to address underlying motivations of criminality
Maylinn Smith, a prosecutor for the Confederated Salish and Kootenai Tribes and a MTIP board member, said restorative justice is a best practice for preventing Indigenous people from becoming justice-involved.
“I’ve been working in the area of Indian Law and with tribal communities for more than 30 years now, and one of the things I see is when tribes move more towards a restorative, holistic approach, that incorporates custom, and tradition, and spirituality, and those types of supportive services, that you really are going to have better results,” Smith said.
Smith implements restorative justice as a tribal prosecutor by examining root causes of crime and diverting people away from the criminal justice system whenever possible.
“We are much more interested in trying to figure out ways of getting people services to address some of the issues that are bringing them into contact with the justice system on a regular basis,” Smith said. “So it’s not just ‘you do the crime, you do the time’ kind of thing. It’s how can we divert people, how can we do deferred prosecutions, deferred sentences, how can we identify resources that can help them address the underlying issues.”
This commitment to getting people the services they need exists in both the prosecution and defense offices on the Flathead Reservation. Ann Miller, a managing attorney for the Tribal Defender’s Office for the Confederated Salish and Kootenai Tribes, utilizes a holistic defense model. While this model is not referred to as restorative justice, Miller said it’s restorative and promotes healing because it is client-centered and community-centered. The model is a method of providing public defender services and was developed by the Bronx Defenders in New York. Miller’s office began using the model in 2011.
“What it does is address the issues that bring people into the criminal justice system and those collateral consequences that come with being charged with a crime and also convicted,” Miller said. “Collateral consequences for our clients begin with the charge. So in the sense of it being restorative, we believe that addressing those underlying issues and then the collateral issues that happen from charges and convictions is not only restorative for our clients but also the community because we work with our clients in the context of the community.”
Main tenets of the model include viewing clients as whole people and addressing real-life consequences of criminal justice involvement. To achieve this, Miller said the Tribal Defenders Office considers the needs of the client over the needs of the system.
“I think many systems, including some alternative court systems, oftentimes will focus on serving the needs of the system rather than serving the needs of the client,” Miller said. “Or resolving a case rather than resolving the needs of the clients. So what we try to do is offer services first, and I think in that way, our clients feel like they’re treated more fairly, and I think there’s evidence to say that when people think they’ve been treated fairly, they’re more successful ultimately.”
Miller said the Tribal Defenders Office has a tool for interviewing clients to assess their needs. The tool was first envisioned as a risk assessment tool but has evolved into more of a case management tool used to connect clients with services.
“It takes about an hour to go through an interview where the client identifies what their needs are, and we try to hook them up with services because you can’t really just refer people to services,” Miller said. “They really need an advocate to access services whether it’s tribal or outside the tribal system. There are too many barriers to services, and when people already have mental health issues, or chemical dependency issues, or are homeless and don’t have an address, it’s near impossible to get services.”
Providing access to culture for incarcerated people to help them heal
Another way restorative justice can occur is through building strong connections between people and their culture. This is particularly necessary for Indigenous inmates in prison who are often unable to fully access their culture. Smith said maintaining this connection is critical for healing.
“Reestablishing strong tribal connections, strong cultural connections is part of that healing process that deals with historical trauma, that deals with the grief, that deals with the results of colonization,” Smith said. “You’re going to have better rehabilitation efforts if you allow development, or reestablishment, or access to those kinds of spiritual ceremonies that really can heal individuals.”
In Montana, Indigenous people are overrepresented in the criminal justice system. They make up only six percent of the state’s population but over 30 percent of the women’s prison population and over 20 percent of the men’s prison population. In our current system, justice-involved Indigenous people are barred from fully experiencing restorative practices.
For example, Smith said Indigenous people who spend time in Montana’s state and particularly private prisons are usually unable to access elders and items that accompany healing ceremonies like smudging materials, eagle feathers, and hand drums.
Smith said this is because the prisons often apply a pan-Indian approach to providing Indigenous inmates access to culture. Pan-Indianism is when all tribes are lumped together. This is not an accurate way of approaching Indigenous inmates because the differences between their tribes may be minor or may be pretty significant, Smith said.
“I think that the state correctional system paints with a fairly broad brush,” Smith said. “They don’t recognize that there could be very different ceremonies, very different practices depending on what tribe an inmate is associated with.”
Lillian Alvernaz, the Chief Prosecutor for the Fort Belknap Indian Community, worked to help Indigenous prison inmates in Montana access culture in her former position with the American Civil Liberties Union of Montana. Alvernaz was the first Indigenous Justice Legal Fellow for ACLU MT. While litigating Indigenous justice issues in Montana, she advocated on behalf of Indigenous inmates, who among other things, were being prohibited from participating in sweat lodge ceremonies.
See our interview with Alvernaz below:
Barring Indigenous people from accessing their culture while incarcerated means ignoring culturally appropriate and long-standing methods of healing and preventing crime. The effects of this are not just apparent for individual Indigneous inmates but can be seen in families and communities as well, Smith said.
“It’s the kids that are going to be in the CPS system,” Smith said. “It’s the lack of a stable workforce. It’s the depletion of resources in the healthcare industry. It’s challenges getting housing because once you have a conviction for drugs, you may not be eligible for federal housing. Or if you are a sex-offender or violent-offender, there may be limits on where you can be housed as well. So it’s those ripple effects that not only affect the individual and the immediate family but actually can impact the entire community.”
Assisting formerly incarcerated people to reenter society and reestablish strong bonds with their culture and communities
Continuing the healing process once Indigenous inmates are released from incarceration is part of the restorative process. The Tribal Defenders Office has a robust reentry program that draws on the expertise of attorneys, psychologists, and cultural mentors.
“We’re assisting people returning to the Flathead Reservation from incarceration, whether it’s in county or state facilities, and I think those folks having a lifeline back home makes a huge difference in how they perceive the system and also their success within the system,” Miller said.
The reentry program, which began in 2015, has a Cultural Mentor Program that speaks to the importance of reconnecting people with their communities and strengthening bonds. The program entails volunteers who are culturally knowledgeable working with clients to reconnect with their tribal community through strategies such as mediation.
“That in particular is healing because we’ve been able to on occasion have people sit down with the person that they’ve wronged and facilitate healing between them facilitated by a cultural mentor, and we take the court out of it,” Miller said. “It’s private. It’s done between the mentor, the person who was wronged, and the person we’re representing to be able to come to a resolution on whatever the issue is.”
The cultural mentors also help clients participate in ceremonies and have one-on-one discussions about how to contribute to the tribal community. Miller said this program has seen a lot of success in terms of reducing recidivism.
Restorative and holistic practices as decolonization
While the term “restorative justice” is often used in non-Indigenous justice systems, it is important to remember that for Indigenous people, it is not a new practice. It is a practice that was taken away through colonialism; therefore, employing restorative justice and holistic practices is a form of decolonization.
“For me, it’s how do we allow tribal communities to basically re-assume the practices that they’ve been using for hundreds upon hundreds of years successfully to create safe communities, to create healthy communities, to create productive communities,” Smith said.
Sings In The Timber said challenges around infrastructure, resources, and jurisdiction can complicate and threaten to derail efforts to restore peacemaking practices for tribes. But she stresses that there are gains being made despite these challenges.
“Organizations like the Native American Rights Fund and Indigenous Peacemaking Initiative serve as resources to help tribes troubleshoot challenges and contribute to the continuation and revitalization of traditional ways,” Sings In The Timber said.
While there are challenges to fully restoring traditional peacemaking systems, the implementation of these restorative and holistic practices is allowing Indigenous communities to heal. And according to Smith, this work is just getting started.
“This is not a one generation, and it will all be fixed,” Smith said. “This is a multi-generational endeavor to try to heal communities, and you have to start with the individual who can hopefully ripple to the immediate and extended family that then can ripple out into the community to where you have a supportive community that either keeps people out of the justice system or helps them to minimize the impacts of being justice-involved.”