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Legal Status of Indigenous Courts

Articles about diversion of certain matters to indigenous courts or acceptance by the criminal justice system of decisions made there.

Borowski, Allan. In courtroom 7 -- The children's Koori Court at work. Findings from an Evaluation.
This article reports some of the findings of an evaluation of the Children’s Koori Court (CKC)—the first legislated effort in Australia to involve the Indigenous community in the sentencing of young Aboriginal offenders as a strategy for reducing their overrepresentation in the juvenile justice system. A prominent feature of this court of summary jurisdiction is that the presiding magistrate, while remaining the sentencing authority, is assisted by Aboriginal Elders. This article focuses on the evaluation findings that were derived from observations of the CKC in action. They indicate that the operational objective of cultural responsiveness was realized. They also point to realization of the community-building goal—fostering Indigenous ownership of the administration of the law. Little slippage was found between the CKC’s design and operation, although some areas of improvement were identified. Nevertheless, the scope for the CKC by itself to significantly reduce overrepresentation is limited. (Author's abstract)
Mavec, Dante. The appropriate place of Indigenous Sentencing Courts in the Australian criminal justice system.
In light of their great potential, Indigenous sentencing courts have been established in most Australian jurisdictions but many controversies and uncertainties still surround their operation. One such controversy is whether Indigenous sentencing courts are suited to dealing with all offences. Sexual offences are excluded from the mandate of most of the courts, with justifications for this decision varying between jurisdictions. Another issue that constantly surfaces each time the use of Indigenous sentencing courts is widened is the concern that Indigenous sentencing courts distinguish defendants based on their race, and thus violate the principle of equality before the law. As use of these courts becomes more widespread, it is important that fundamental questions such as these are considered, to ensure that the courts take their appropriate place in the Australian criminal justice system. (excerpt).
Gottlieb, Karen. Lessons Learned in Implementing the First Four Tribal Wellness Courts.
The "lessons learned" presented in this paper were drawn from the experiences of the first four tribal wellness courts (drug courts): Hualapai (Arizona), the Blackfeet (Montana), Fort Peck reservation (Montana), Poarch Creek (Alabama). Although these tribal drug courts had distinctive experiences in planning and implementing court procedures and programs, they exhibited a similar pattern of strengths and weaknesses. The intent of identifying lessons learned from these court programs is that other tribes learn from their experiences and avoid the same mistakes. The first of 10 lessons discussed is to develop a strong structure for the court team. The responsibility of the team is to integrate the members’ skills and backgrounds in achieving a holistic approach to treating court participants who have substance abuse problems. The team should be composed of representatives from across the reservation, including tribal elders and others who embody traditional tribal values. The second lesson is to use the informed consent model for admittance to the court program, which involves the selection of referral points and the use of legal procedures that protect the individual’s due-process rights. The third lesson is to assess readiness for change in potential participants through legal and clinical screening for eligibility. A fourth lesson is to integrate culture, not religion, into the court, which involves providing access to holistic, structured, and phased substance abuse treatment services that incorporate culture and tradition. Other lessons discussed involve monitoring participants during times when illegal acts are likely to occur; rewarding positive behaviors; choosing a judge who can be both a leader and a team player; collecting automated court information systematically from the beginning of the court; developing a written curriculum for court staff; and emphasizing early outreach within the community. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).
Gottlieb, Karen. Process and Outcome Evaluations in Four Tribal Wellness Courts.
The four tribal drug courts are the Blackfeet Alternative Court (Montana), the Fort Peck Community Wellness Court (Montana), the Hualapai Wellness Court (Arizona), and the Poarch Band of Creek Indians Drug Court (Alabama). The evaluations found that each court had many strengths and success stories. Success was documented as a “slowing down” of alcohol and drug use in adult participants; however, graduates were as likely to reoffend as nongraduates, and participants as a whole had a relatively high 3-year recidivism rate that ranged from 50-64 percent in the adult courts and over 90 percent in the juvenile courts. For the adult program, graduates took longer to reoffend than nongraduates, and participants had fewer postprogram charges compared to their preprogram criminal histories. Juvenile graduates as a whole, on the other hand, showed no differences in recidivism patterns between graduates and those who did not complete the court program. Three of the four courts ceased operation when Federal funding ended. Primary reasons for failure to institutionalize the three courts were high staff turnover (especially judges) and lack of commitment to the courts from the community and tribal council. The evaluations’ goals were to obtain input from the tribes; to use a mixed methodology in which qualitative perspectives from interviews provided context to quantitative results; to describe program development and compare it with planned implementation; and to determine the courts’ impact on the behavioral patterns of participants, particularly regarding recidivism. (Abstract courtesy of the National Criminal Justice Service, www.ncjrs.gov).
Borowski, Allan. In Courtroom 7— The Children’s Koori Court at Work: Findings From an Evaluation
This article reports some of the findings of an evaluation of the Children’s Koori Court (CKC)—the first legislated effort in Australia to involve the Indigenous community in the sentencing of young Aboriginal offenders as a strategy for reducing their overrepresentation in the juvenile justice system. A prominent feature of this court of summary jurisdiction is that the presiding magistrate, while remaining the sentencing authority, is assisted by Aboriginal Elders. This article focuses on the evaluation findings that were derived from observations of the CKC in action. They indicate that the operational objective of cultural responsiveness was realized. They also point to realization of the community-building goal—fostering Indigenous ownership of the administration of the law. Little slippage was found between the CKC’s design and operation, although some areas of improvement were identified. Nevertheless, the scope for the CKC by itself to significantly reduce overrepresentation is limited.(Author's Abstract)
Penal Reform International. Rapport de monitoring et de recherche sur la gacaca
For the Rwandan government, the Gacaca, an original blend of restorative and retributive justice, is the main tool for reconciliation in Rwandan society. This series of three reports focuses on the gacaca courts and the context of reconciliation in the Kibuye region - a region renowned for its extreme poverty, the intensity of the violence it suffered during the genocide, and the presence of an above-average number of 'Righteous' men and women who chose to rescue Tutsis during a period when the dominant social norm was to kill. (publisher's abstract)
Palk, George and Livingston, Michael and Stewart, Anna and Hayes, Hennessey. Youth Justice Conferencing and Indigenous Over-Representation in the Queensland Juvenile Justice System: A Micro-Simulation Case Study.
Research suggests that rather than focusing on criminal justice responses, more progress in reducing Aboriginal overrepresentation might be made if the focus was shifted to the underlying causes of Aboriginal crime: substance abuse, family violence, poor school performance, and unemployment. Further development of initiatives to address the underlying causes of offending by indigenous young people, as well as use of effective criminal justice responses, such as youth justice conferencing, likely will be more effective in reducing the overrepresentation of young indigenous people in the juvenile justice system. The results of the simulations indicate that youth justice conferencing is unlikely to contribute significantly to the targets set by the Justice Agreement. While conferencing has the potential to reduce the number of young people reoffending overall, this impact may be more apparent for non-indigenous young offenders, resulting in an increase in the disparity in the ratio of indigenous to non-indigenous young offenders. While youth justice conferencing is only one of a range of criminal justice interventions identified in the Justice Agreement as strategies for reaching the identified goals, it is the only diversionary option that has been empirically shown to reduce rates of reoffending. However, there is a deep need for more rigorous evaluations of the impact of youth justice conferencing on reoffending; simulation modeling is only as good as the estimates that are used as parameters in the models. (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).
Whonnock, Karen and Savarese, Josephine. Aboriginal courts for New Brunswick.
Over the last several decades, the Canadian criminal justice system has been encouraged to implement policies and programs that better correspond with the ideals and values of Aboriginal justice. Numerous commissions and task forces have pointed to the unequal treatment of indigenous peoples by police, courts, and corrections. Innovative approaches to remedying the limitations of the justice system's response are varied. They include the creation of Aboriginal court worker positions, the implementation of restorative justice measures, Aboriginal policing programs, and the development of correctional programming that seeks to be culturally appropriate. While often acclaimed, these initiatives have not stemmed the over-representation of Aboriginal peoples in Canadian prisons and they have failed to promote the rehabilitation and restoration required. As a result, governments have intensified their efforts to develop programs within all facets of the justice system. The establishment of specialized courts dedicated to serving Aboriginal clients is a recent initiative. These courts work to ensure that the charges against Aboriginal accused are heard in a forum where cultural sensitivity and respect are incorporated into the criminal justice process. Four Canadian provinces--Alberta, Saskatchewan, British Columbia, and Ontario--have established Aboriginal courts. Operating since 2000, the courts have nearly a decade of experience to share with other regions in Canada. To date, there has been limited consideration of the Aboriginal court model in the Atlantic region. I will examine the arguments for an Aboriginal court for the Province of New Brunswick (excerpt)
. Indigenous sentencing outcomes: A comparative analysis of the Nunga and magistrates courts in South Australia.
Indigenous sentencing courts are touted by Australian governments as a key response to the Royal Commission into Aboriginal Deaths in Custody. Despite their introduction over a decade ago, research on these courts, particularly in terms of sentencing outcomes for Indigenous offenders, has been limited. This study provides a comparative analysis of sentencing outcomes for Indigenous offenders sentenced through Indigenous and conventional court processes. Using data from the South Australian conventional Magistrates Court and Nunga Court between 2007 and 2009, the analysis highlights three sentencing outcomes of particular importance for their recognised differential impacts on Indigenous offenders: imprisonment, monetary, and disqualification of driver's licence orders. Independent of other crucial sentencing factors, defendants sentenced in the Nunga Court were significantly less likely than Indigenous offenders in the conventional courts to receive these types of orders. (author's abstract)
. The shifting politics of law in the recognition of customary court in Papua following the enactment of of Special Autonomy Act.
This research article discusses the historical development of the politics of law in the recognition of Papua customary court. It also discusses the motives of the Indonesian government's politics of law in the recognition of customary court as reflected in the Papua Special Autonomy Act. This study belongs to a doctrinal legal research which incorporates several approaches including historical, statute, conceptual and philosophical approach. The legal documents used as the source of data in this article were gathered through identification techniques and analyzed using textual analysis method. The analysis was done qualitatively by employing interpretative methods. Based on the analysis, this research finds that historically, both central and local governments have been involved in a power struggle over Papua. The central government, however, has a greater authority by exercising its politics of law to recognize Papua indigenous people's customary courts. The government, this article argues, undertakes such a move to gain the natives' trust and consequently gain more dominance over Papua. The research also finds that the government recognizes the existence of Papua customary court because of these several following reasons. The recognition is used as a compromise between the central government and the native Papuans. The recognition is also given due to the mounting pressures on the fulfillment of customary rights of the native Papuans. It is also given as a fulfillment offundamental values inscribed in Papua special autonomy, which include protection to the natives' fundamental rights, protection of human rights and protection of pluralism. (author's abstract)
. Survey of Tribal Court effectiveness studies.
Alaska Native tribes have used sentencing circles and other cultural traditions to address problems involving tribal members for centuries. This way of dealing with disputes in a restorative and reparative manner eventually gave way to an adversarial process when Alaska was purchased by the United States. Alaska Natives have always had a unique relationship with the federal government; there is currently only one reservation in Alaska and limited other forms of Indian country in the state. In 1971 the Alaska Native Claims Settlement Act (ANCSA) was signed into law, extinguishing all unsettled Alaska Native claims to land by placing title to land in the control of Alaska Native corporations. Subsequent cases have determined that land transferred to Alaska Native corporations via ANCSA cannot be considered Indian country for the purpose of establishing tribal courtjurisdiction.(excerpt)
Indigenous Justice Clearinghouse. Victoria's neighbourhood justice centre.
Experience with community justice centres suggests that they can have a significant effect on the quality of local community life (Berman 1998). Indigenous communities, being particularly conscious of a community sense of justice, may find the approaches used in community justice centres particularly appropriate. In the context of a growing array of approaches to Indigenous justice (including Indigenous courts) in Australia, community justice centres would seem to have considerable potential for improving the life of Indigenous communities. This paper provides the global context for the establishment of the Victorian Neighbourhood Justice Centre (NJC) and details its rationale, operation, and results. (excerpt)
Hyams, Ross and Batagol, Becky and King, Michael S and Freiberg, Arie. Non-Adversarial Justice
This comprehensive book provides a large overview of emerging trends in Australian criminal justice. While the current system operates under adversarial justice, there have been increasing movements away from it. Some alternative forms of non-adversarial justice that have developed are therapeutic jurisprudence, restorative justice, preventive law, creative problem solving, holistic approaches to law, and appropriate or alternative dispute resolution. Each approach is presented in its own chapter, with information about their backgrounds, potential benefits, and potential drawbacks. The authors then compare and contrast procedure under adversarial justice and non-adversarial justice in the context of family law. Then the book shifts away from modes of justice to specific developments in the legal system that reflect growth away from adversarial justice. These include problem-oriented courts, diversion schemes and intervention programs, indigenous sentencing courts, and managerial and administrative justice. Lastly, the authors develop what the application of adversarial justice to coroners, court management (specifically the development of the judicial role), lawyers, and legal educators would look like.
Andemariam, Senai W. Ensuring access to justice through community courts in Eritrea
The Eritrean communities have an age-long tradition of local dispute resolution in accordance with their respective customary laws, most of which are codified and date back to the 15th century. This tradition is considered part of the day-to-day life of the community and is a reflection of the desire to maintain peace among all of its members. On 22 September 2003, the Government of Eritrea enacted Proclamation 132/20032 to establish community courts3 and thereby accomplish two objectives.4 The first objective is to enable greater participation of the community in the judicial process and make the judicial process accessible to the larger community, the poor in particular. This objective is achieved by allowing the community to elect the judges of the community courts, at least one of whom must be a woman, and by establishing hundreds of community courts. The second objective is to integrate customary dispute resolution mechanisms in the national legal system and thus alleviate the burden of higher courts. To achieve this two-tier objective, community court judges are allowed to reconcile disputants based on customary laws and practices. If the parties fail to reach a compromise, the community court judges then pass judgments based on national laws. Any disputant who does not agree with the judgment can appeal to higher courts. Settlement at the community courts of those disputes that would have been previously brought to the higher courts has alleviated the burden of such courts. (excerpt)
Penal Reform International. Rapport de la recherche sur la Gacaca – PRI
The fifth Gacaca research report covers the period from July 2002 to the beginning of 2003. This period was devoted to preparing for the Gacaca tribunals in Rwanda at cell level. As well as giving an overview of the development of systems such as compensation, community service and monitoring, the report also provides three local case studies. These cases show that the local situation, the local history of the genocide and the role of the local authorities are important factors to be taken into consideration in order to understand the differences between zones. (publisher's abstract)
Penal Reform International. Rapport de la recherche sur la gacaca – PRI
The third Gacaca research report covers the period from April to July 2002. During this period, the first phase of the gacaca programme began on a pilot basis in twelve selected areas. This report documents the first meetings and makes some recommendations for the further development of the Gacaca system. (publisher's abstract)
Penal Reform International. PRI research on Gacaca report
The third Gacaca research report covers the period from April to July 2002. During this period, the first phase of the gacaca programme began on a pilot basis in twelve selected areas. This report documents the first meetings and makes some recommendations for the further development of the Gacaca system. (publisher's abstract)
Morgan, Anthony and Louis, Erin. Evaluation of the Queensland Murri Court: Final report
There have been a variety of innovative court models introduced, piloted and implemented across Australia to improve the effectiveness of the criminal justice system in dealing with specific offender populations. Indigenous sentencing courts have been established in most Australian jurisdictions in order to reduce high rates of reoffending among Indigenous offenders and to provide a more culturally-appropriate criminal justice process for Indigenous Australians that increases the involvement and confidence of the Indigenous community in the courts. There are a growing number of evaluations investigating the operation and effectiveness of these court models. These are important because they can provide policymakers, judiciary and court partners with an evidence base upon which to make decisions regarding the expansion, improvement and development of both new and existing court programs. This report presents the findings from the Australian Institute of Criminology’s (AIC) comprehensive evaluation of the Queensland Murri Court, undertaken with the support and assistance of a range of stakeholders involved in the program. This research was funded by the Queensland Department of Justice and Attorney General who previously funded the AIC to evaluate the Drug Court program in Queensland and with whom the AIC has a long history of collaboration. (author's abstract)
Penal Reform International. Monitoring and Research Report on the Gacaca
This report focuses on community service, a sentence issued by the Gacaca Courts which can replace up to half of the prison sentence for those perpetrators of genocide who voluntarily confessed to their actions. Community service is intended to be an opportunity for the perpetrators to provide practical help and assistance to the victims and their families, thus encouraging reconciliation and peaceful cohabitation amongst the two groups. Drawing on extensive field research and testimony from all those involved in community service in Rwanda, this report highlights the successes but also several areas of increasing concern surrounding this innovative tool of reconciliation. (publisher's abstract)
Penal Reform International. Rapport de monitoring et de recherche sur la Gacaca
This report explores the challenges faced by the Rwandan national authorities during the information gathering phase of the Gacaca process. (publisher's abstract)

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