Tribal Courts, Restorative Justice and Native Land Claims

Abstract

The Native American tribes in the United States have maintained distinctive customs which they practice within their ‘eviscerated’ sovereignty. The tribes exercise their jurisdiction as ‘sovereign’ nations under devolution of their lands granted by the federal government, which still has a right of preemption and the power of alienation. The tribal courts exercise the restorative justice principles that are integral to their judicial procedures and where the emphasis is on healing. The disputes in tribal courts are settled by mediation through Peacekeeping Circles that restore the parties to the pre-trial status and there is input from elders in the community. The Native people not only have to differentiate and preserve their justice framework, but also claim title to land where it has been extinguished by treaty, eminent domain or Executive order of the us government. The argument in this paper is that the restorative justice principle is part of the customary law of the tribes in the us and in Canada, and their dormant land claims can be revisited if this judicial process is maintained in the context of sustaining their customs within the federal legal framework.