The strength of a tribe is in its members, and when a significant number of tribal members are caught in the web of drug or alcohol abuse, the tribal community suffers from the loss of their knowledge, talents, and leadership. Many tribal governments have recognized substance abuse as a community problem for many years, and dozens have established alternative courts that would handle these cases outside of typical -- and ineffective -- criminal proceedings.
Known sometimes as “Healing to Wellness” courts – and sometimes by names in a native language – these courts take a more solid and reliable path toward solving the problems at the root of substance abuse. The Wellness Court convenes a team to work with the participant on the healing process. Teams usually include both a prosecuting and defending attorney, along with people who can assist with the healing plan.
Not just an idea. The plan might include anything from health care to family counseling to job training and placement, along with the healing elements important to the participant and the particular tribe. Many incorporate native traditions of dispute resolution, appealing to traditional values and relationships within the family and community to find a way forward. Some incorporate experiences that support culture and traditional identity, such as hunting, fishing, and subsistence activities, or spiritual supports found in sweat lodges, ceremonies and spiritual mentoring.
More than 75 tribal Wellness Courts are now in operation, in nations that span 25 states. (For more information, see the website of the Tribal Law and Policy Institute, which provides assistance to tribes establishing Wellness Courts.)
Gradually, federal law is catching up. In 2010, the Tribal Law and Order Act was signed into law. It included a mandate to the Justice Department to explore alternative courts to handle drug and alcohol abuse-related crimes. The Justice Department convened an expert committee to carry out this provision. In 2014, the committee issued its report, “Native American Traditional Justice Practices” which recommended assistance to tribes to establish these alternative courts.
In November 2015, Senators Tester MT and Franken MN introduced S.2205 to provide grant funding to tribal governments that wish to develop alternative courts for tribal members with drug and alcohol abuse problems, especially those who would otherwise end up in the criminal justice system. In April this year, the Senate Committee on Indian Affairs held a hearing on S. 2205.
The bill leaves considerable leeway to tribal governments to design their own programs to fit tribal values and objectives under the grants. Unfortunately, the bill also insists that tribes adopt “graduated sanctions” for participants – including incarceration – if they fail to meet the requirements of the program. Since punishment and retribution are inherently in opposition to the reconciliation and healing approach that has been well tested in the Wellness Courts, some tribes may find this requirement difficult to incorporate into their plans.
Next steps: SCIA votes to approve S. 2205, and appropriations committees provide additional funds to assist tribal courts.
Read more here.