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NALSA hosts discussion of how the U.S. justice system can incorporate “peacemaking”

January 17, 2019

By Caroline Harris 

On January 16, Penn Law’s Native American Law Students Association hosted a presentation on “Peacemaking for Lawyers,” featuring speaker Shawn Watts (Cherokee Nation of Oklahoma). Watts is a Clinical Associate Professor at the University of Kansas School of Law, and is also the former Associate Director of Columbia Law School’s Meditation Program. He defined “peacemaking” as a traditional indigenous form of dispute resolution, emphasizing that the term is a translation of a Navajo word.

After establishing the definition of peacemaking, Watts launched into his discussion of the United States justice system. He described the four major justifications for punishment: deterrence, incapacitation, rehabilitation and retribution. Citing the issues of prison violence and recidivism, he said he believes the American prison system is failing.

“Retribution is where the U.S. justice system excels,” he said.

Watts noted that the retributive model of punishment disproportionately harms minority families, especially within the Native American community. He expressed concern that incarceration can fail to prevent crime, and discussed how prison time “puts children on the prison pipeline” and “turns one mistake into two” by separating families.

Shifting gears, Watts turned to the historical development of Federal Indian Policy. He divided the history of public policy toward Indian tribes into periods of removal, reservation, allotment, assimilation, termination, and self-determination. Watts characterized Federal Indian Policy as a series of attempts on the part of the U.S. government to “civilize” what it viewed as “savages.”

He encouraged Penn Law students to look to the Major Crimes Act as an example of succinct but powerful legislation. Passed in 1885, the law places certain crimes under federal jurisdiction if they are committed by a Native American in Native territory. The law originally defined nine major crimes (later expanded to fifteen) and cedes the authority over to the United States for prosecution. The law was criticized for weakening Indian authority over themselves and their land.

“Within this one paragraph in the Major Crimes Act, the U.S. has managed to obliterate an entire way of life,” Watts said.

Watts relayed how federal policies like the Major Crimes Act separated Indian families and divided Indian tribes. He argued sending Indians to urban environments “dislocated them from their culture” because they were discouraged from speaking tribal languages and practicing tribal traditions.

“As far as I am concerned, there has only ever been one U.S. policy toward Indian tribes and Indian people: extermination,” Watts said.

Watts believes the justice system should look to the Native American model of peacemaking. The peacemaking approach avoids litigation, encourages information sharing, and provides a much more integrated approach. Communities, families and process agents (such as social workers, court staff and advocates) participate in peacemaking. The expansive process emphasizes problem solving and transformation.

During the peacemaking process, the parties discuss how the issues overlap with their values. The negotiations incorporate concerns around respecting tradition and honoring culture. The goal of peacemaking is to restore relationships among people. Watts compared peacemaking to a circle exploring the heart of emotions, issues, and interests.

“Peacemaking accomplishes the goals of the U.S. justice system,” Watts concluded.