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Cited by 3Indigenous Peoples' Rights and LawCriminal Justice and PenologyCriminal Justice and Corrections Analysis

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Restorative Justice as Regenerative Tribal Jurisdiction

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van Schilfgaarde, Lauren·2023·SSRN Electronic Journal
DOI 10.2139/ssrn.4375140
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References 11 · Cited by 3

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  19. Disparities in the prevalence of substance use and mental health issues among AI/ANs may also be viewed as a legacy of historical trauma-that is, the intergenerational impact of massacres; forced relocation; involuntary removal of children to boarding schools
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  52. See Flies-Away & Garrow, supra note 26, at 406 (describing Tribal Healing to Wellness Courts as vessels of spiritual revolutions that positively affect individuals, apply recycled ancient Indigenous intellect, and incorporate modern innovation)
  53. Christine Zuni Cruz, 2012, THE INDIGENOUS LEGAL TRADITION AS FOUNDATIONAL LAW 13
  54. Council, For many [I]ndigenous peoples, customary norms and laws that govern relationships are accepted as correct and beneficial for generating harmonious relationships and communities, 50
  55. Samuel Jan See, 1978, noting Tribal justice was historically "dispensed in widely varying ways, matching the wide variety in cultures and life-styles among the, 9
  56. See Wanda, Indigenous people tend to interpret hurtful actions less individualistically and more as signs of imbalances within the community as a wholeimbalances that affect everyone, JUSTICE AS HEALING: INDIGENOUS WAYS, supra note, 29
  57. Hum, Rts. Council, supra note at 212, � 19
  58. L Tribal, 2016, 16, 21
  59. E G See, 2021, Anishinaabe Inaakonigewin: Principles for the Intergenerational Preservation of Mino-Bimaadiziwin, 82 MONT, L. REV, 293, 293
  60. Pat Sekaquaptewa, 2008, exploring the methodology by which modern Tribal courts incorporate customary law into Tribal court jurisprudence), 319
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  66. See Dorothy, 2005, (noting community-based initiatives that leverage the strengths of families and communities, try to respect cultural norms, and engage in partnerships with neighborhood organizations, 23
  67. 2203, See Indian Self-Determination and Education Assistance Act of 1975, Pub. L
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  71. 2019, For a discussion on the traditional people-defendant dichotomy, see Jocelyn Simonson, The Place of "The People, Criminal Procedure, 119 COLUM. L. REV, 249
  72. Biber & Davis, 1890, 634 (citing In re Neagle, 39 F. 833, 856 (C.C.N.D. Cal. 1889), aff'd sub nom
  73. Richland, 1973, 27 (citing �MILE BENVENISTE, INDO-EUROPEAN LANGUAGE AND SOCIETY
  74. Fletcher, at 87 (noting the trend of Tribal-state agreements and the consequential endorsement of Tribal sovereign legitimacy those agreements imbue)
  75. E G See, NA:TINI-X'WE' NA:XO'-XI'-NAYI-DIN [THE PEOPLE'S GET WELL PLACE] COURT
  76. Code � 4, 2002, The court is authorized to cooperate with any federal, state, [T]ribal, public or private agency in order to participate in any diversion, rehabilitation or training program and to receive grants-in-aid to carry out the purposes of this code
  77. 2000, The court] is hereby authorized to negotiate and enter into on behalf of the Muscogee (Creek) Nation appropriate cooperative agreements with state and local governments for integrating and/or coordinating the Muscogee (Creek) Nation Family Drug Court Program with agencies of such other governments
  78. See Fletcher, By the 1980s, many Indian [T]ribes and states began to realize that the future of [T]ribal-state relations would be negotiation and agreement, 82
  79. N D Indian Affs, 2020, ) (facilitating the sharing of information, data collection, and resources regarding delinquent youth). For an extensive list of Tribal-state cooperative agreements, see Cooperative Agreements, Memorandum of Understanding Between Spirit Lake Tribal Ct
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  81. Korey Wahwassuck, 2010, (describing the Leech Lake Tribal Court-Cass County District Court Joint Powers Agreement that provides for a multi-jurisdictional docket in which both judges occupy the bench simultaneously); see also, Building a Legacy of Hope: Perspectives on Joint Tribal-State Jurisdiction, 36 WM. MITCHELL L. REV, 859, 747
  82. 2019, See generally CONF. OF CHIEF JUST., RESOLUTION 1: TO ENCOURAGE GREATER COLLABORATION BETWEEN STATE AND TRIBAL COURTS TO ADDRESS THE OPIOID
  83. A N Benjamin Madley, 2017, THE UNITED STATES AND THE CALIFORNIA INDIAN CATASTROPHE, 163
  84. 0388, General Allotment Act of 1887, Pub. L. No. 49-105
  85. Kristen A Carpenter, 2019, Privatizing the Reservation?, 71 STAN. L. REV, 791
  86. 1953, Checkerboarding can create significant practical issues in determining which entity can exercise jurisdiction over Tribal members, non-member Indians, and non-Indians within reservation lands. See Land Tenure Issues, INDIAN LAND TENURE FOUND, Act of Aug, 288
  87. See Mattz, 1973, (explaining the establishment of the extension); see also Beth Rose Middleton Manning & Kaitlin Reed, Returning the Yurok Forest to the Yurok Tribe: California's First Tribal Carbon Credit Project, 39 STAN. ENV'T, L.J, 481, 483
  88. 1950, 103 1942, a federal court decision raised questions about the validity of state jurisdiction. 299 In response, a newly formed New York Joint Legislature Committee on Indian Affairs appealed to Congress to settle this issue. Congress subsequently passed the Act of July 2, 1948, conferring on the State of New York criminal jurisdiction over offenses committed by or against Indians on all reservations in the state, Congress conferred civil adjudicatory jurisdiction to New York courts over civil actions and proceedings between Indians or between Indians and other persons, 112
  89. Generally, the New York delegation statutes have been interpreted to be similar in scope to P.L. 280. 302 This has unfortunately included P.L. 280's debilitating effects on Tribal court development and Tribal self
  90. New York statutes concerned efforts to undermine Tribal sovereignty and governance, including specific efforts to address Tribal reluctance to sell its land to non-Indians. 304 These concerted efforts led to the steady dispossession and erosion of the Haudenosaunee, 1954, the New York Joint Legislature Committee on Indian Affairs reflected in its report that
  91. Barnet H Demarest, 1889, REPORT OF SPECIAL COMMITTEE TO INVESTIGATE THE "INDIAN PROBLEM" OF THE STATE OF NEW YORK, 78
  92. Carrie E Judge, 2019, New York's Quest for Jurisdiction over Indian Lands, 14 JUD, NOTICE, 4, 4
  93. Robert B Porter, 1990, The Jurisdictional Relationship Between the Iroquois and New York State: An Analysis of 25 U.S.C. � � 232, J. ON LEGIS, 497, 497
  94. Act of July 2, 1948, Pub. L. No. 80-881
  95. 1026, United States v. Cook, 922 F
  96. 16. 305. Id. 306. History of Tribal Government, SAINT REGIS MOHAWK TRIBE
  97. John C Carroll, 2016, Proposals for Resolving Reservation Residents' Bail Catch-22: A Case Study of the St. Regis Mohawk Indian Reservation & the Town of Bombay, 156
  98. Tribal Courts, SAINT REGIS MOHAWK TRIBE
  99. Id, noting the Saint Regis Mohawk Tribal Court currently consists of a Traffic and Civil Court as well as the Healing to Wellness Court
  100. Ctr, 2016, STATUS REPORT: BOMBAY TOWN COURT/ST. REGIS MOHAWK TRIBE PRETRIAL SUPERVISION REPORT, 3
  101. The Saint Regis Mohawk Tribe Healing to Wellness Court, TRIBAL ACCESS TO JUST
  102. Gauging the "success" of a restorative justice program such as an intersovereign collaboration can be difficult and complex. The metrics for success can vary, such as whether restorative justice achieves lower recidivism rates than a similarly situated Anglo-adversarial model, whether the defendants perceive their experience to be fair or just, whether the victim and community perceive the process and outcome to be fair or just, and whether the collaboration serves the current and future goals of both sovereigns, among numerous other metrics. Several Wellness Courts have received formal assessments, but they are currently an expensive, time-consuming, and largely out-of-reach option for most courts, See generally Tribal Healing to Wellness Courts: Data and Evaluation
  103. Ctr, FOR CT. INNOVATION, supra note 310, 6
  104. E G See, Rethinking Bail Reform, 52
  105. Richmond L Rev, 2018, 795, 797
  106. Jennie R Joe, 2008, FINAL REPORT: PARTICIPATORY EVALUATION OF THE SISSETON WAHPETON OYATE IASAP DEMONSTRATION PROJECT, 8
  107. Angelique Eaglewoman, 2005, Was'teWinyan), Re-Establishing the Sisseton Wahpeton Oyate's Reservation Boundaries: Building a Legal Rationale from Current International Law, 29 AM. INDIAN L. REV, 239, 239
  108. 1867, Treaty with the Sioux-Sisseton Wahpeton Bands
  109. A L Joe, 1972, HISTORY AND CULTURE OF THE SISSETON WAHPETON SIOUX TRIBE OF SOUTH DAKOTA
  110. U S, 1975, Disestablishment is the termination of the Indian country status of land, 425, 444
  111. See Angelique Eaglewoman, 2021, Was'teWinyan), Permanent Homelands Through Treaties with the United States: Restoring Faith in the Tribal Nation-U.S. Relationship in Light of the McGirt Decision, 47 MITCHELL HAMLINE L. REV, 640, 666
  112. Hodel V Irving, 1984, HEIRSHIP: THE INDIAN AMOEBA, 704, 712
  113. See Angelique Eaglewoman, 2013, Was'teWinyan), Wintertime for the Sisseton-Wahpeton Oyate: Over One Hundred Fifty Years of Human Rights Violations by the United States and the Need for a Reconciliation Involving International Indigenous Human Rights Norms, 39 WM. MITCHELL L. REV, 486
  114. 1998, 406; see also Bonnie Duran, Eduardo Duran & Maria Yellow Horse Brave Heart, Native Americans and the Trauma of History, 60
  115. Eduardo Duran, 1995, NATIVE AMERICAN POSTCOLONIAL PSYCHOLOGY, 136
  116. U S Most, Department of Justice drug court funding, though not the Indian Alcohol and Substance Abuse funding in 1998, restricts the use of funds for violent offenders, as defined by 34 U.S.C. � 10613. 34 U.S.C. � 10612 (limiting the eligibility of violent offenders for programs funded under this subchapter)
  117. 2021, Telephone Interview with Chief Judge B.J. Jones, Tribal Ct. Judge & Dir., Tribal Judicial Inst

Metadata

Authors
van Schilfgaarde, L.
Affiliations
University of California, Los Angeles (US)
Corresponding author
van Schilfgaarde, Lauren
ORCID
van Schilfgaarde, Lauren
Venue
SSRN Electronic Journal
Publisher
Elsevier BV
Published
2023
ISSN
1556-5068 (ISSN-L)
DOI
10.2139/ssrn.4375140
OpenAlex
W4323343698
Cited by
3
References
11
Citations by year
2025: 3
Type
posted content
Language
en
Open access
Locations
  • SSRN Electronic Journal (publishedVersion)
  • eScholarship (California Digital Library) (submittedVersion)
Topics
  • Social Sciences › Law › Indigenous Peoples' Rights and Law
  • Social Sciences › Law › Criminal Justice and Penology
  • Social Sciences › Sociology and Political Science › Criminal Justice and Corrections Analysis
Keywords
restorative justice, tribal jurisdiction, Indigenous criminal justice, tribal courts, criminal justice reform, Indigenous self-determination, anti-subordination, settler colonialism, indigenous law, tribal sovereignty

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