In 2 previous posts, I discussed how we can use various Tlingit controlled institutions, municipal governments and ANCSA Corporations, to build a decentralized, de facto Tlingit Nation. Many of the problems our communities face today are the result of a drastic reorganization of Tlingit life, in the political, cultural, and economic realms. We were economically devastated when our territorial clan waters and resources were taken from us. To further the destruction of our clan system, what resources that have been returned to us have by-passed clans and come to us in the form of private property reorganized under ANCSA Corporations. This form of property ownership is alien to the Tlingit people, and our poverty rates and the cost of living in our communities show how devastating this change has been. The American economy largely ignores our communities, and what was once our most valuable resource, salmon, is now controlled by the federal government and is depleted when compared to the runs the Tlingit maintained under our management. The previous posts in this series made the case for:
- ANCSA Corporations to focus on building resilient, sustainable communities and economies
- Tlingit controlled municipal governments to protect the interests of the Tlingit Nation as a whole with the support of our clans
In this third part, I’d like to discuss how our clan system can provide a parallel system of law and dispute mediation that is preferable to Anglo style courts, whether they be Anglo style courts run by municpal, state or federal authorities or Anglo style courts but run by tribal governments. What is “tribal law?” Judge James Bowen gives us a good explanation in his 1984 publication for the Conference on Tribal Courts in Southeast Alaska, Sitka Community Association:
Under Anglo-American notions of criminal law, the objectives are to establish fault or guilt and then to punish. The sentencing goals of retribution, revenge, and deterrence and isolation of the offender are extremely important. Under the traditional Indian system the major objective was more to ensure restitution and compensation retribution. The idea, therefore, that tribal laws involved some Old Testament eye-for-an-eye type mechanism is pure Anglo fiction. In most instances the tribal system instead attempted to compensate the victim and/or his family, and to solve the problem in such a manner that all could forgive and forget and continue to live and work within the tribal society in harmony.
Read the whole article at Ishmael Hope’s website here: The Development of the Indian Court System
From the above we can see that the important factors in tribal law are compensation and a solution that provides harmony and balance to the community. A tribal society is an interconnected one where the actions of one impact the actions of others. Anglo style law seeks to mitigate this through jail sentences. The recidivism rate under such a system are disastrous. 53% of male inmates and 39% of female inmates find themselves re-incarcerated in the US. The percentage of minorities in the US’s prison system should give us pause, too. The Alaska Department of Corrections says that 31% of its female population and 33% of its male population is Alaskan Native (.pdf link.) As of the 2010 Census, we made up only 14.8% of Alaska’s population. So not only are our people being sent to Anglo prisons under an Anglo judicial system at a rate that doubles our representation of our population behind bars, but we can also expect that most of our imprisoned people, once freed, will find themselves behind bars again. It seems to me that something is broken, here. While I don’t absolve any individual of responsibility for their crimes, I think that we can beat the rather dismal results shown above. However, tribal people are thwarted from finding their own solutions in their own communities.
Just as our economic structure was reorganized to diminish the influence of our clans and tribal society, so too has our system of law been reorganized. In the previously mentioned article, Judge Bowen explains:
The federal tribal lands allotment policy considerably increased the need for the CFR [Court of Indian Offenses] courts. In order to break up the traditional family groupings on many reservations (in the hopes of forcing rapid integration into Anglo society), allotments were deliberately mixed so that family members might have their lands scattered all over the reservations. The idea her was to encourage the younger generation to move away from the leaders and to begin farming on their own. The result of the application of the idea was that it became difficult if not impossible for communities that were dependant on tribal customs to conduct some of their ceremonies because the clan or family was so dispersed. The CFR courts then served to provide them with some forum in which a modicum of justice could be realized. Subsequent sale of allotments and the settling of white purchasers within the reservation borders made it virtually impossible to do anything except rely on these courts for redress.
While the above explains the experience of lower-48 tribes, any Alaskan Native should recognize the parallels between the scattering of Indian allotments and the reorganization of common clan property into private property under ANCSA and the similar effects they have had on clan and tribal life. With diminished importance of clans, we can expect to see the entire fabric of Tlingit life torn apart in all realms; cultural, economic and even legal. What then becomes of a Tlingit man who commits assault in his community? Under the jurisdiction of the state, he will find himself in prison, where he will be treated like an animal, and exposed to prison violence and drugs. Upon his release he will be marked a felon, which will lock him out of most meaningful careers the Anglo economy has to offer. He then has a 53% chance of returning to prison. I almost can’t blame him. The Anglo system has treated him like an animal and spat him out a hardened criminal, marked for life as a “felon.” How can our clans serve him better?
The short answer may be that they can’t, given that the importance of clan, tribe and even family has been crushed by the state and federal government through years of attempted cultural assimilation which has included families coerced into giving up their children for adoption, a public education system that has at times physically punished our children for speaking their native language, and complete reorganization of our tribal lives. But how could we better serve our people if our clans still had the power they once had? In addition to looking at Tlingit law before contact with Anglo’s, another tribal system of law that is in use today may give us some answers to how such a system could serve us in modern times. Xeer is the polycentric legal system of Somalia’s tribal people. It is not to be confused with the Islamic Courts, which have been set up in the southern part of Somalia in recent times, nor should it be confused with the clan based warlords in Mogadishu. In the southern portion of Somalia, the old clan and tribal system was suppressed by Italian colonialism. The reign of chaotic anarchy in this region are the result of throwing off colonialism without an intact clan system. In northern and eastern Somalia, however, Xeer remains intact.
In short, under Xeer, tribal elders and clan leaders mediate disputes and in the process come to a solution, usually involving restitution, that both parties can agree to. The clan and tribal leaders chosen to mediate the dispute depend on the clans involved. If the dispute involves two people from the same family, the matter will probably be settled at a very low, family level. When two clans are involved, the leaders of the respective clans will become involved. The justice dispensed is based on the loss experienced by the victim and is payable to the victim himself rather than to the court or government. Heavy consideration is given to the character of each person, and, just as among Native Americans, the harmony of the community is also taken into account. In situations where an offender can’t or won’t pay restitution, his family or clan does in his stead and then takes every opportunity to scorn him in public and private. They may even go so far as to keep an eye on him and prohibit him from owning weapons. If he continues to commit crimes, the clan may grow tired of answering for him and disown him; banishment!
This works only when clans are intact, when we take it upon ourselves to look after one another and solve our own problems. So now imagine how a Tlingit man who commits assault in his own community would be treated under a clan based system of law. If the assault was committed against his brother, then his clan uncles might give him a good talking to, and his clan leader might sit him down and ask why he hurt his own brother. He might have to apologize in front of the entire clan for acting like a child. His aunties might treat him like a child for a little while until he demonstrates he can behave like an adult. If the assault was committed against someone from another clan, then clan leaders would likely be involved. Maybe his clan leader has to go into his own pocket to compensate the victim if his troublesome clan nephew can’t afford to. Now the apology is to the entire village, and everyone’s auntie’s treat him like a child. But maybe all the public shame isn’t so necessary. Maybe he swallow’s his pride and publicly apologizes for his crime. He can maybe forgo paying restitution if he is sincere enough.
Let’s raise the stakes. Two clans are hostile toward one another and on the verge of war. A man from one clan attacks, maybe even kills another. Tensions are high. The entire community is on edge. The entire Tlingit Nation will suffer if the conflict escalates. No one will be able to sleep with peace of mind. This is a bad situation. The leaders of the respective clans are not on speaking terms. So the other clans put their heads together to mediate the dispute. They find a few honorable Tlingit leaders, who have proven through the years that they are fair and wise. They are known and respected throughout the Tlingit Nation. They tell the near warring clans to settle their dispute once and for all, under the mediation of the Tlingit Nation’s most respected elders. It’s an out. A way for both parties to settle their grievances without losing face and without suffering the pains of war. Plus, if the warring clans don’t respect the court of clan elders convened for them, then they can’t expect any other clan to recognize their own clan’s sovereignty and rights. If either warring clan goes against a ruling considered fair by the entirety of Tlingit community, then they should be considered a rogue clan. Such a clan would find their own rights and sovereignty at risk, since other clans would be unwilling to extend them the same rights and justice that they failed to adhere to themselves. The clan members of such a rogue clan would be advised to replace any leadership that takes them down this path.
How would we implement this today? We can’t implement only tribal law without taking the whole package of clan, culture and community. Before we take this step we need to build and strengthen our clans. Already our culture is flourishing. Every step we take in this direction strengthens us. A multi-pronged approach includes education, economics and defense of our interests on all fronts. It includes our art and language, our culture, and even Tlingit style justice. If we are successful in all of these realms then we have built a de facto Tlingit Nation, operating parallel to and sometimes in spite of the US and state of Alaska. But mostly it would be in harmony with its neighbors, peaceful, and even prosperous.