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date: 08 August 2020

Indigenous Courts

Summary and Keywords

In many jurisdictions, including Australia, New Zealand, Canada, United States and across the Pacific, offending rates for Indigenous peoples continue to be disproportionate to population size. For example, in New Zealand, Māori comprise over half the male prison population yet constitute only 15% of the national population. In Canada and the United States, where Indigenous people constitute 3.6 and 1.7% of the population, respectively, imprisonment rates are also disproportionate.

Notwithstanding attempts to address these statistics, the overrepresentation of Indigenous peoples in prisons continues. However, Te Kooti Rangatahi, a marae-based (traditional-setting) “Indigenous court” for youths, has demonstrated some initial success as a unique initiative. This “court” integrates tikanga Māori (Māori culture) into the judicial process, with the aim of facilitating the reconnection of young people with their culture and involving the wider community. Te Kooti Matariki, an Indigenous court for adults, employs tikanga but within a mainstream court. A comparative perspective with the Navajo Common Law and Navajo Nation Tribal Court system demonstrates that the inclusion of Indigenous concepts into Western legal systems is not novel and should not in and of itself prevent the extension of Te Kooti Rangatahi and Te Kooti Matariki’s jurisdictions.

Keywords: Indigenous, courts, Māori, culture, criminal justice, Australasia, Oceania, New Zealand, Navajo

Introduction

In Aotearoa, New Zealand, Māori (the Indigenous peoples of New Zealand) are overrepresented in the national criminal-justice statistics (Jackson, 1988). Despite comprising 15% of the national population, over 50% of the male prison population identify as Māori (Department of Corrections, 2013). The rate of imprisonment for Māori is currently 660 per 100,000, whereas for New Zealand Pākehā the rate is less than 95 per 100,000 (Department of Corrections, 2013). And the percentage of offenders commencing a prison sentence who identify as Māori increased from 47 to 56% between 1983 and 2013 (Department of Corrections, 2013).

These criminal-justice statistics are similar for Indigenous peoples throughout the world. In many Pacific Island states such as Fiji approximately 80% of the prisoners are Indigenous (Ralogaivau, 2007; Vuiyasawa, 2009). In Australia, the situation is the same (Human Rights and Equal Opportunity Commission, 2003), where the imprisonment rate for Indigenous or aboriginal adults is approximately 15 times higher than that for non-Indigenous Australian adults (Cuneen, 2001; Jeffries & Bond, 2012). Similarly, in Canada and the United States, imprisonment rates are also disproportionate (La Prairie, 1999; Mikkelsen, 2013, p. 54, 55).

In light of the overrepresentation of Indigenous peoples within the criminal-justice system, it is unsurprising that attempts have been made to address these unacceptable statistics. This has included implementing policies such as the family group conferencing schemes in New Zealand, which incorporate Indigenous values; establishing the peacemaking courts in the Navajo Nation; and pioneering mainstream legal approaches, such as therapeutic jurisprudence, which incorporates Indigenous-based ideology. These efforts are pragmatic as well as ethical in recognizing that reducing the number of Indigenous criminal offending will substantially reduce the overall prison population in countries such as New Zealand and Australia. However, despite these efforts, as well intentioned and creative as they are, the overrepresentation of Māori and other Indigenous peoples in their respective countries continues.

As of the early 21st century, some jurisdictions have taken steps to implement an “Indigenous court.” In parts of Malaysia, Native courts have been established (Bulan, 2010) and a number of Indigenous courts have emerged across the African continent, dealing exclusively with Indigenous law (Khumalo, 2012). Some constitutions, such as in Ecuador, are explicit, providing constitutional recognition of an Indigenous legal system and an Indigenous court, and some such as the Constitution of Nepal make provision for Indigenous courts.1

Some countries have implemented Indigenous courts in the criminal-law context. For instance, Canada has implemented the Gladue and Cree Courts, Australia has Koori and Murri Courts, and the United States has the Navajo Nation Tribal Courts.2 In terms of their success, the anecdotal evidence is positive; however, most are relatively new initiatives, and reliable statistical information is often lacking.

New Zealand has also followed suit, with two Indigenous courts—the Te Kooti Rangatahi and Te Kooti Matariki—have been established to address the overrepresentation and colonization of Māori criminal offenders in New Zealand. Te Kooti Rangatahi is a marae-based (traditional-setting) Youth Court, which integrates tikanga Māori (Māori culture) into the judicial process, with the aim of facilitating the reconnection of young people with their culture and involving the wider community. Te Kooti Matariki is an Indigenous court for adults, which employs tikanga but within a mainstream court.

The advent of Indigenous courts is in general progressive, as the use of customary Indigenous norms in a judicial setting is novel and represents a shift in orthodox legal practice. However, the advent of Indigenous courts is particularly unique in the context of criminal law because of its potential to address the overrepresentation of Indigenous offending statistics.

This article will therefore look in detail at the workings of the two, relatively new New Zealand institutions: Te Kooti Rangatahi and Te Kooti Matariki. Not only do these courts build upon the efforts and strides made in the 1980s, but they also represent a new ideological path to reconcile Indigenous criminal offending. Although they are not the silver bullet to ameliorate the overrepresentation of Indigenous criminal offending statistics, these courts represent a substantial and significant step toward addressing the issue from an Indigenous worldview while still working within the orthodox Western legal system. Current research indicates positive outcomes (Toki, 2018). “Te Kooti Rangatahi and Te Kooti Matariki Courts—An Overview” will provide information on the Te Kooti Rangatahi and the Te Kooti Matariki Courts. This section will also address the key criticism leveled against the courts and contextualize the courts as an important step in a range of efforts that will be required to address the overrepresentation of Māori within the criminal-justice system.

Although these courts are in and of themselves progressive, novel, and deserving of analysis, the initial success raises the question of why the jurisdiction should not be extended to the wider mainstream criminal-justice system. There is certainly the need to consider this option, as the reality remains that Indigenous peoples are overrepresented within all stages of the criminal-justice system, from arrest to incarceration and parole.

The second section, “Extending the Courts’ Jurisdiction,” will therefore review the viability of extending this jurisdiction to a marae-based court for adult offenders and determine whether a Te Kooti Rangatahi and Te Kooti Matariki tikanga-based framework could be extended to adult offenders within criminal and/or civil jurisdictions (e.g., the Family Court). To contextualize this approach, particularly how customary norms could be and are used in judicial processes, an examination of a comparative jurisdiction, the Navajo Nation Tribal Courts, one of the most advanced in terms of a traditional “legal” system, will be reviewed (see “Navajo Courts”). This section will therefore provide a comparative perspective with the Navajo Common Law and Navajo Nation Tribal Court system.

Finally, and by way of conclusion, “Final Thoughts” will explore how to conduct research into whether the courts’ jurisdiction should be extended and offer some initial thoughts on the legal implications of what such an extension may mean for tikanga Māori as a source of law.

Te Kooti Rangatahi and Te Kooti Matariki Courts—An Overview

Similar to most Indigenous peoples, Māori adopted an holistic worldview underpinned by customary laws, or tikanga Māori (Walker, 1990). However, with the policies and practices of successive New Zealand governments since 1840, Māori spiritual beliefs, collective land tenure, language, and customary rights were all subjected to often-oppressive government legislation and policy that included a criminal-justice system focused on ideals such as “punitiveness” (Williams, 1999). With this loss of culture, land, and identity, Māori criminal offending rates began to rise disproportionately, leading to the established data of the early 21st century, where the disproportionate imprisonment statistics remain unchanged for Māori men, M?ori women and Māori youth (Statistics New Zealand, 2018). Māori academics view these figures as a legacy of the effects of colonization (Mikaere, 2011).

Despite criminal-justice initiatives to reduce the disproportionate incarceration and recidivism rates for Māori, these rates have remained unchanged since the end of the 20th century (Department of Corrections, 2013). It is noted that although recidivism rates have been used as a gauge for efficacy, to view this measure in isolation is unrealistic, since without continued support outside of the courts and other changes that address the effects of colonization, it is unlikely that such courts will have a direct effect on recidivism (Cuneen, 2014, p. 387). Consequently, frameworks that incorporate a desistance approach may be more suitable (Marchetti, 2019, p. 152). However, Te Kooti Rangatahi and Te Kooti Matariki, which are marae-based and underpinned by tikanga Māori and the doctrine of therapeutic jurisprudence, have shown promise (Braithwaite, 2002; Toki, 2011).

What Is Te Kooti Rangatahi?

For many years, experienced youth-justice professionals expressed concern regarding the successive generations of Māori defendants who are processed through the Youth Court to the District Court and then onto prison. It was agreed that a new approach was required to meet the needs of youth experiencing the criminal-justice system. Following extensive consultation between Youth Court stakeholders and local tribes (iwi) and their leaders, the idea of a youth court sitting on a marae became a reality.

In 2008, Judge Heemi Taumaunu piloted and presided over the first marae-based Youth Court, Te Kooti Rangatahi, in Gisborne. Since 2008, 14 additional Rangatahi Courts have been established throughout New Zealand. The objective of these courts is to reduce reoffending by Māori youth and to provide the best possible rehabilitative response by encouraging strong cultural links and meaningful involvement of whānau, hapū, and iwi in the youth-justice process (Taumaunu, 2014).

Te Kooti Rangatahi along with kuia, kaumatua, and local marae communities allow Māori youth who appear before them an opportunity to learn who they are and where they are from, and to participate in Māori protocols and customs, which in turn helps reconnect them with their identity (Taumaunu, 2014). The establishment and development of Te Kooti Rangatahi was fully supported and encouraged by Principal Youth Court Judge Andrew Becroft, then-Chief District Court Judge, Chief Judge Russell Johnson, Walker (2018), and Chief District Court Judge Jan-Marie Doogue.

The provisions of the District Courts Act allow a sitting of the Youth Court to be held within a marae environment (see Section 4[4] of the District Court Act 1947). Te Kooti Rangatahi functions with the same powers and responsibilities as a mainstream Youth Court, discharging young people once they have completed their Family Group Conference (FGC) Plan or making a more formal order if they do not (Taumaunu, 2014). There is always an emphasis on holding young people accountable for their offending behavior while addressing their risks and needs (Taumaunu, 2014).

These courts apply law in an orthodox manner but also incorporate te reo Māori (Māori language), and tikanga Māori (Māori protocol) (Taumaunu, 2014). As the court is held at a marae (traditional Māori meeting house), marae kawa (ceremonial rituals) are observed as part of the ceremony and processes of the court (Taumaunu, 2014).

Te Kooti Rangatahi monitors the performance of FGC plans by young Māori and non-Māori who have committed offenses. The FGC plan holds youths accountable and responsible for their offending while providing for the interests of the victims (Taumaunu, 2014). The court addresses the risks and needs of young people while attempting to address the underlying causes of their offending (see Children, Young Persons and Their Families Act 1989, Section 208[fa]).

A young person can be referred to Te Kooti Rangatahi for monitoring of the FGC plan if the FGC agrees and if the young person and his or her family wishes to do so. A victim who attends the FGC is able to participate in the decision as to whether the young person should be monitored in Te Kooti Rangatahi and effectively holds a power of veto. If the victim disagrees to the referral to Te Kooti Rangatahi for monitoring, the Youth Court will not refer the young person (Taumaunu, 2012). Victims can attend Te Kooti Rangatahi in the same manner, as they are able to attend the Youth Court (Taumaunu, 2014).

Many of the young Māori who appear in the Youth Court have little sense of their identity as Māori, so Te Kooti Rangatahi places emphasis on learning their tribal history and developing an understanding of who they are and where they are from. Every youth is expected to learn his or her pepeha (a traditional tribal saying) and a mihi (a greeting in the Māori language) despite many youth never having spoken te reo.

In 2012, the Ministry of Justice prepared an evaluation of five of the ten Te Kooti Rangatahi Courts at the time (Ministry of Justice, 2012).3 The evaluation report provided observations of “good practice” across all five marae and found that rangatahi (youth) who experience the Te Kooti Rangatahi Courts have many positive early outcomes, both expected and unexpected, including, for example, high levels of attendance by both rangatahi and whānau (family or extended family), an occurrence seldom seen in the Youth Courts; rangatahi feel welcome and respected, and have an understanding of the court process as being legitimate (Taumaunu, 2014).

Rangatahi have positive relationships with youth-justice professionals and the marae community in general. Importantly, rangatahi showed improved positive attitudes and behavior and demonstrated responsibility for their offending and its impact. Furthermore, nearing the end of the monitoring process, rangatahi had established connections with the marae and taken on leadership and mentoring roles (Taumaunu, 2014).

Positive outcomes were not just isolated to rangatahi. Whanau also felt respected, supported, and welcomed at the court. Agencies reported having had the opportunity to develop networks with the wider Māori community and the ability to build greater relationships with whānau while increasing their own cultural competency. The marae venue, marae community, kaumātua, kuia, lay-advocate involvement, and incorporation of tikanga Māori and te reo Māori validate the mana of the young people and their whānau while still holding them accountable and responsible. Judge Taumaunu holds firmly that Te Kooti Rangatahi is not seen as an easy option (Taumaunu, 2014).

Consistent with these initial reports, research also supports that the court is working. For instance, a project identified practical factors such as the fact that rangatahi simply appear and engage with the processes of Te Kooti Rangatahi, and that the use of tikanga contributed to not only the court working but also, to some extent, to the court’s success (Toki, 2018). Although this research is preliminary, and there is a need for more research in this area, it is promising. It is for this reason that Te Kooti Rangatahi is seen to have proven that criminal courts in New Zealand can successfully apply a bicultural process to the criminal-justice system, one that enhances engagement with young people and their families, with an increased level of respect for the legitimacy of the justice system (Dickson, 2011).

What Is Te Kooti Matariki?

Similar to youth-justice professionals, stakeholders of the Kaikohe District Court, in Northland New Zealand, expressed concern regarding the successive generations of Māori defendants processed through the District Court and then on to prison—a system that limited the involvement of whānau, hapū, and iwi in the court process and the use of te reo Māori at court.

In 2010, Chief District Court Judge Russell Johnson took steps to initiate a specialist court in Kaikohe, with the aim of increasing the use of Section 27 of the Sentencing Act 2002, which allows the court to hear the offender’s personal circumstances and cultural background (Hauauru Takiwa To Kooti o Matariki, 2012).

When a person pleads guilty to an offense, but before the court imposes a sentence on that person, the court will allow the offender to participate in a culturally appropriate rehabilitation program (see Section 25 of the Sentencing Act 2002). The offender’s iwi, hapū, and whānau may be involved in developing the rehabilitation program. If the offender successfully completes this program, the court will take this into account at sentencing.

This specialist court aims to increase the involvement of whānau, hapū, and iwi in the court process. By encouraging this inclusion, the court is actively promoting the use of Section 27 of the Sentencing Act 2002 and section 4 of the Māori Language Act 1987. Furthermore, the court facilitates access to wrap around services and alternative pathways to address the underlying causes of offending (specifically Section 25[1][d]).

Through the work of Judge James Rota with Ngāpuhi, Te Mana o Ngāpuhi Kowhao Rau (TMONK) was developed to work with offenders and support families in attending and speaking at the sentencing hearing. Although the court works closely with TMONK, it is independent of the Ministry of Justice (Hauauru Takiwa To Kooti o Matariki, 2012). TMONK designs an intensive program that was individually developed to assist offenders address the underlying causes of their offending behavior and to support them, their whānau, hapū, and iwi (Hauauru Takiwa To Kooti o Matariki, 2012).

Most of this work is completed outside the court process and prior to sentencing and includes a restorative justice component in which victims, if they choose, can also engage in this process (Hauauru Takiwa To Kooti o Matariki, 2012). TMONK is premised on the belief that it takes a whole community to address offender behavior and work toward bringing whānau back to the marae (Hauauru Takiwa To Kooti o Matariki, 2012). Interim reports are filed to keep the court and judge informed of progress (see Section 25[1]).

There are four process options, which reflect the different levels of involvement that the defendant may choose. These range from Option 1, which comprises no TMONK involvement and in which the offender is sentenced in the usual manner, to Option 4, which is intensive and requires the commitment of both defendants and their whānau (Hauauru Takiwa To Kooti o Matariki, 2012).

Sentencing is adjourned to allow time to work with defendants and their whānau and to complete a report that includes a plan that will help defendants address any underlying causes of their offending. If this report and plan are accepted by the judge, then the sentencing is adjourned again so that the plan can be completed. An important part of this process is that the work is completed before the sentencing, which provides defendants the opportunity to prove their commitment to their victims, their whānau, and the court. Community involvement is a pivotal component of Te Kooti Matariki. Judge Greg Davis in R. v. Harris (2017) noted (at para [54] and [55]):

There is one final comment. . . . I want to make the important observation that the Matariki Court is not a courthouse. The true essence of the Matariki Court is the people that are involved in the work being done . . . It is not the Court at all. . . . Without the support of the police, without Te Mana o Ngapuhi Kowhao Rau and without all your hard work, we would not have a Matariki Court at all. (paras. 54, 55)

The judges of Te Kooti Rangatahi and Te Kooti Matariki Courts innately used tikanga customs and traditions. The process of integrating both mainstream and tikanga systems creates a framework that gives primacy to tikanga while respecting the mainstream criminal-justice system.

Although the research is preliminary, early indications are promising, and more research into this area is suggested. Although not situated on a marae, like Te Kooti Rangatahi is, Te Kooti Matariki can through community involvement and participation successfully apply a bicultural process to the criminal-justice system.

Criticisms of Te Kooti Rangatahi and Kooti Matariki

Though well regarded among the legal academic and practitioner communities, the courts are not immune from criticism. The key criticism from a Māori perspective is that the Te Kooti Rangatahi and Te Kooti Matariki Courts still operate within a Western legal framework (Dickson, 2011). From a critical Indigenous perspective, it could be claimed that these courts therefore preserve the Western legal status quo and that they do not deliver true self-determination where Indigenous governance and concepts prevail. Instead, Māori worldviews are squeezed within the Western legal system, in which Western legal tenets such as Crown sovereignty prevail. From this viewpoint, the courts could be seen as continuing the colonial legacies of the legal system. And it is from this metacriticism that other criticisms fall, such as the concern that these courts may cherry-pick tikanga Māori concepts and/or not apply tikanga Māori as it should be applied.

The existing mainstream court system provides challenges for Māori in various ways. First, mainstream litigation cannot resolve certain problems germane to Māori communities, arguably because of the different “world views.” Second, mainstream litigation can be costly and time consuming, and Māori feature predominantly in data related to poverty indicators, which indicates that this approach is out of reach for many. Third, mainstream courts can be confusing, frustrating, and demeaning to Māori litigants, as mainstream courts offer an environment that many Māori consider alien. And, finally, the adversarial style of the mainstream courts is inconsistent with tikanga Māori procedures, such as kanohi ki te kanohi (face-to-face) korerotia (talking things out), whiriwhiri-a-ropu (group discussion), whaikorero (formal speech making), and whakatatū (agreement). Any inclusion of tikanga within this system is therefore risky.

However, the problem with this concern is that it represents a one-dimensional perspective. The Māori legal community recognized that tikanga and that a return to tikanga is important. There is widespread consensus among the Māori legal community that instead of looking to the current system for potential solutions to these problems, Māori need to embrace tikanga as a community problem-solving tool. It is therefore widely recognized that potential solutions to disproportionate Māori offending rates lie not in Pākehā models of criminal justice nor in Westminster-style law reforms and punitive punishment regimes but in their own culture, language, philosophies, and spiritual practices. It was precisely for this reason and because of the incompatibility with the Māori world and steadily increasing incarceration rates for Māori that the Te Kooti Rangatahi judges arrived at the consensus that an alternative to the Westminster style of adjudication was required. This is why the judges employ tikanga Māori in their judicial processes. The judges recognize that meaningful incorporation of tikanga Māori, as a form of self-determination, would allow Māori to confront injustice and its consequences, take responsibility, and heal the community.

It would be too simplistic therefore to view Te Kooti Matariki and Te Kooti Rangatahi in isolation and as standalone solutions to the problem of the overrepresentation of Māori. Rather, it is appropriate to consider these courts as part of a multitude of steps required to resolve the issue. In this way, the courts build on the efforts of the 1980s and provide a platform for additional steps to be taken.

Although Te Kooti Rangatahi and Te Kooti Matariki work within the existing legal system, they are part of the wider movement for self-determination and do not hold themselves out as the sole solution to this problem. Efforts to achieve this wider movement of self-determination can take place independently of the courts. The establishment of these courts—which work within the Western legal system—is but one step in the right direction.

Extending the Courts’ Jurisdiction

There is no doubt that Te Kooti Rangatahi and Te Kooti Matariki are progressive and novel attempts to address the overrepresentation of Māori in criminal-justice statistics. The use of Indigenous courts represents a new path in Western judicial processes generally; the potential it offers to address the overrepresentation of Māori in prisons, for example, is particularly beneficial.

Although Te Kooti Rangatahi and Te Kooti Matariki have been successful and provide encouragement for their continued use, the jurisdiction of these courts is limited. Te Kooti Rangatahi is confined to youth offenders at the sentencing stage of the criminal-justice system, and Te Kooti Matariki is limited to adult offenders also at sentencing. Given the initial research, which suggests that these courts are successful, it is possible to hypothesize that the entire criminal-justice system, from arrest to sentencing and incarceration, would benefit from the inclusion of a tikanga Māori perspective. Following the outcomes of early 21st-century studies and the demonstrated success of these courts, the proposition that Te Kooti Rangatahi could be extended to include adult offenders requires serious consideration.

Although it would be valid and important to consider whether to extend these courts’ jurisdictions, the idea would no doubt be resisted, largely based on practical concerns, such as how the courts would work, be configured, and be comprised. Equally, there would be demands for more concrete statistical evidence that the courts reduce the recidivism rates of Māori offenders.

This article will not offer comments on these specific concerns. However, it will address a concern that is practical and also principled: whether it is appropriate to use and incorporate tikanga Māori values and norms into the Western legal system, as any extension of Te Kooti Matariki and Te Kooti Rangatahi would require. Would the established legal system accept such an inclusion? Equally, would Māori be prepared to allow such values and norms to be included in a colonial legal system?

To explore this idea of whether to use customary Māori legal norms in Western legal processes further, an examination of a parallel (though not identical) jurisdiction’s experience is necessary. The Navajo Nation uses Navajo Common Law in its judicial deliberations. For example, the Navajo Nation’s Tribal Courts apply Navajo Common Law concepts such as k’e, nalyeeh, and hozho, which are similar to the tikanga concepts whanaungatanga, utu, and aroha in criminal and civil matters. This use of customary law is useful for understanding both how Indigenous concepts have been employed and how similar approaches already used by the Te Kooti Rangatahi and the Te Kooti Matariki could be extrapolated to include family issues and eventually civil issues in the mainstream legal system. It should be noted that in R. v. Te Pania (2015), a civil case (breach of a fishing license) was determined on a marae. The thesis of this section is that the use of customary norms in Western legal processes is not fatal to the extension of the courts’ jurisdiction. Before examining the use of customary norms in its judicial processes, it is first helpful to provide an overview of the Navajo legal system (see “Navajo Courts”).

The Navajo Courts: An Overview

The Navajo Nation extends over northeastern Arizona, southeastern Utah, and northwestern New Mexico, covering nearly 27,000 square miles; in the 2000 U.S. census, 298,197 individuals identified as Navajo (Census Bureau, 2004). Unlike New Zealand, the U.S. federal government has recognized the legal sovereignty of some Native tribes. Tribal sovereignty sits alongside the sovereignty of states and is only regulated by the U.S. federal government as a fiduciary of these tribes, who are empowered to act on their own behalf (see the “Marshall trilogy” cases: Johnson v. McIntosh [1823]; Cherokee Nation v. Georgia [1831]; Worcester v. Georgia [1832]; and United States v. Kagama [1886]). Legally, this results in three sovereigns in the United States: the states, the recognized Native American tribes, and the U.S. federal government (though the jurisdiction of each sovereign can overlap). Therefore, Native American tribes have a nation-to-nation relationship with the U.S. federal government.

The Navajo Nation’s tribal sovereignty is legally recognized by the U.S. federal government. After the attempted assimilation process, in 1865, by the U.S. government failed (Austin, 2009), a treaty was signed with the Navajo Nation. The 1868 Navajo Treaty reaffirms and guarantees to the Dine their rights as a sovereign nation (Austin, 2009). Contrary to popular non-Native American belief, these treaties did not provide any rights to Native American nations. These treaties only recognized the preexisting sovereign status of Native American nations and contains certain promises the United States made in exchange for Native American nations forfeiting substantial land rights (Austin, 2009).

The Navajo exercise their legal sovereignty through their three-branch government: the legislative (Navajo Nation Council), executive (president and vice president), and judicial branches (Navajo Nation Court System) (Austin, 2009). Following legislative direction, the Navajo have operated this democratic government without a formal written constitution (Austin, 2009) since 1923.

Although at first glance, the Navajo courts appear revolutionary and a deference to Indigenous self-determination, it is important to recognize that the Navajo Court of Indian Offenses was an Anglo-American institution imposed on the Navajo as a tool of oppression and assimilation. Traditional forms of governance and dispute resolution have been forced to work within the Western framework of governance. In this respect, although the recognition of tribal sovereignty places the United States beyond what takes place in New Zealand, the reality is that traditional customary norms work within Western legal constructs remain. The lessons of this court therefore are highly relevant to the New Zealand context.

The judicial branch comprises a number of District Courts and a Supreme Court. Each of the 10 judicial districts has a trial court and a family court. Each District Court addresses civil and criminal issues within the jurisdictional limits of the Navajo Nation. There are limits, however, to the courts’ jurisdiction. Serious crimes, such as murder, are not within the ambit of the Navajo Nation’s judicial jurisdiction.

The president of the Navajo Nation appoints each judge and then the Navajo Nation Council confirms the president’s appointee with a unanimous vote (Austin, 2009). Similar to the judges of Te Kooti Rangatahi, Navajo judges must speak the Navajo language fluently and understand Navajo culture and traditions as they are used in litigation in the Navajo courts. Nineteen judges serve the Navajo Nation of approximately 300,000 Navajo, compared with only eight marae court judges serving approximately 600,000 Māori.

The Navajo Council codified Dine Fundamental Laws, which are unique to the Navajo, in 2002. The Code is utilized by the Navajo Courts and the Navajo Nation to resolve issues and formulate policy (see Carpenter & Riley, 2014, p. xxi). Judicial decisions are published in The Navajo Reporter and readily available to legal practitioners, judges, researchers, and the public (Austin, 2009). This has enabled the retention of Navajo core values that form the foundation for law and procedure employed by the modern Navajo Nation government, particularly the Navajo Nation Court System (Austin, 2009). Navajo judges employ Navajo Common Law to resolve legal issues.

Notwithstanding that the courts are a tool of assimilation, the courts offer the Navajo an opportunity to use Navajo Common Law. Like the judges of Te Kooti Rangatahi and Te Kooti Matariki, the Navajo judges have incorporated customary laws into the system to benefit the Navajo (Austin, 2009). The use of Navajo principles in the legal system has elevated traditional Navajo concepts to a source of law within the Navajo legal system. It has not prevented the efficient working of the judiciary. This successful use of customary norms within Western legal processes provides reasoning for why Te Kooti Rangatahi and Te Kooti Matariki’s jurisdiction could be extended. A few examples of Navajo Common Law that have similarities to tikanga Māori concepts are briefly outlined in “Application of Common Law” to illustrate that these customary norms are both used successfully and similar to customary approaches employed by Te Kooti Rangatahi and Te Kooti Matariki in the early 21st century.

Application of Navajo Common Law: An Examination of the Navajo Courts Applying Indigenous Customary Laws—Whanaungatanga, Utu, and Aroha, and K’e, Nalyeeh, and Hozho

Whanaungatanga and K’e

As noted in “Navajo Courts,” despite legislation (e.g., the 1937 Bureau of Indian Affairs Criminal Regulations), Navajo judges frequently drew from Navajo customs to decide cases (Austin, 2009). In Navajo society, k’e reinforces the kinship system through values that include respect, kindness, cooperation, friendliness, and reciprocal relations (Austin, 2009). For Navajo, a person whose behavior contravenes the rules of k’e assumes the risk of being marked with the maxim “he or she acts as if he or she has no relatives.” The maxim describes a wrongdoer and reflects the traditional method of shaming that maintains community order and kinship unity (Austin, 2009).

While presiding over criminal cases, the judges follow customary procedures such as k’e by allowing defendants ample time to relay their version of events (Boyden & Miller, 1942), which is akin to the way in which the tikanga concept waiho ma te wa, of time and space, is used in Te Kooti Rangatahi and Te Kooti Matariki courts. Respected leaders frequently speak on behalf of criminal defendants in court (Boyden & Miller, 1942), a traditional Navajo form of representation (Austin, 2009). When relatives are present in the courtroom, they can also speak on behalf of the defendant or a victim as part of the traditional process of arriving at a just and practical decision (Boyden & Miller, 1942). A relative’s remarks about a defendant in court are not always positive. Some remarks point out the defendant’s faults, which the relative will use to lecture the defendant on proper behavior within the kinship structure and in the community (Austin, 2009). This is similar to the tikanga concept of whakama.

When relatives speak on behalf of an offender, the probability that the person will commit further offenses is reduced, as the relatives of the offender assume roles of “traditional probation officers.” The relatives closely monitor the offender’s behavior and reinforce the offender’s proper conduct through “traditional lectures,” which is the Navajo way of “getting a good talking to” by the clan matriarchs. This is similar to the concept of whanaungatanga and relatedness. Whanaungatanga defines and secures concepts of identity, rights, obligations, and reciprocity. Kuia and kaumatua often, if required, scold the offender in a “tough-love” way as parents would reprimand children, knowing that responsibility and accountability for correcting the imbalance is theirs as a relative of the offender.

In extending the reach of Navajo Common Law from criminal to civil jurisdiction, the principle of k’e, as Navajo Common Law, can be extrapolated to apply to Anglo-American legal outcomes (Austin, 2009). For instance, Ben v. Burbank (1996) involved a breach of an oral contract between two clan relatives. The parties, both traditional Navajo, entered into the contract according to custom. The appellant argued that the statute of limitations should have barred the defendant’s action. The defendant then asked the Supreme Court to use k’e and not the statute of limitations to resolve the matter. The Court agreed that k’e would be the best option to repair the parties’ damaged clan relationship and restore clan unity. The Supreme Court found that

Navajo common law is the first law of our courts and we will abide by it whenever possible [emphasis added]. Therefore, we agree with Appellee [nonbreaching party] that the Navajo way of k’e is the prevailing law to be applied [emphasis added]. K’e recognizes “your relations to everything in the universe,” in the sense that Navajos have respect for others and for a decision made by the group. It is a deep feeling for responsibilities to others and the duty to live in harmony with them. It has to do with the importance of relationships to foster consensus and healing. It is deeply felt emotion which is learned from childhood. To maintain good relations and respect one another, Navajos must abide by this principle of k’e. (p. 224)

Utu and Nalyeeh

Nalyeeh translates as “restitution,” “reparation,” or “compensation” for an injury or wrong done to a person (Austin, 2009). The Navajo Tribal Council has adopted a restitution provision, nalyeeh, into Navajo statutory law (Austin, 2009). During the sentencing phase, the Navajo court uses nalyeeh, which allows for apology, forgiveness, and restitution in order to require a defendant to compensate any party harmed by wrongful conduct (Austin, 2009). This can be applied in a criminal context. For example, when 4 defendants pleaded guilty to cattle rustling, each defendant was ordered to give the owner of the 2 cows they had stolen 10 head of sheep to satisfy the restitution part of his sentence (Navajo Tribe v. Jim Warito, Art Sandoval, Richard Antoni, and John Largo, 1942).

The nalyeeh principle can also apply within civil litigation. In the case of Allstate Indemnity Co v. Blackgoat (2005), the Navajo Supreme Court explained the concept of nalyeeh:

Nalyeeh is a unique Navajo doctrine based on the effects of injury. As the means by which Navajos customarily compensate injuries, Navajo Nation courts use nalyeeh to assess the adequacy of damages in tort claims [emphasis added]. . . . Nalyeeh includes the responsibility to respectfully talk out disputes. While a “flexible concept of distributive justice” depending on the circumstances of the injury and the positions of the parties, a central purpose of nalyeeh is to restore harmony between the parties by adequately compensating the injured person or persons. Therefore, the amount of compensation arising out of that process “should be enough so that there are no hard feelings.” Based on these principles, nalyeeh incorporates what might be expressed in Anglo terms as a procedural requirement and a substantive result.

(Raymond, 2009, p. 226)

And with an even greater level of sophistication, the Navajo Nation Labor Commission, an administrative hearing body, in the case of Yazzie v. Navajo Sanitation (2007) created remedies for violations of employment laws, with the commission granting an employee relief, including monetary relief, using the nalyeeh principle (p. 4).

Utu is commonly held to mean “a return for anything, satisfaction, ransom, reward or a response” (Benton, Frame, & Meredith, 2013). Values placed on utu include compensation, revenge, or reciprocity, with the principle of reciprocity central to maintaining relationships.

Consistent with tikanga Māori, restitution is usually paid to the victim and the victim’s whānau, hapū, and iwi, because the action affects not only the victim but also the victim’s whānau through whakapapa. A common form of restitution observed in the Te Kooti Rangatahi Court when property was damaged by a youth is financial compensation for the damage and loss of property.

The principles of nalyeeh and utu are hampered by dishonesty, lying, or withholding evidence, as this can impinge upon, for example, the mitigation of damages and the restoration of positive relations between parties. In the case of Casaus v. Dine College (2007), the Navajo Nation Supreme Court employed the nalyeeh principle to hold that a party has a duty to disclose evidence in her possession that might mitigate the other party’s damages (p. 7).

Balance—Hozho

The ultimate goal of tikanga Māori is to achieve balance, balance within the individual and balance within the community (Mead, 2003). Similarly for the Navajo, hozho is a concept relating to harmony. Healing and continuing positive relationships are necessary to maintain hozho (harmony) (Austin, 2009). In the case of Mental Health Services of Bizardi (2004), the Navajo Supreme Court noted that the goal of traditional dispute resolution is to restore the parties and their families to hozho using a process of “talking things out” (p. 593). These principles are also summarized in the criminal case of Navajo Nation v. Kelly (2006), in which Navajo Common Law was used to decide a double-jeopardy issue under the Navajo Nation Bill of Rights. The following summary in Kelly describes the normative values the Navajo Nation courts employed to restore harmony among people and heal the community while traversing an adversarial context:

Consensus of all of the participants is critical to resolution of the dispute, concern or issue. With full participation and consensus, a resolution is reached with all participants giving their sacred word that they will abide by the decision. The resolution in turn, is the basis for restoring harmony. Harmony is established if all who participated are committed to the agreement and consider it as the final agreement from which the parties can proceed to live in harmony again. Finality is established when all participants agree that all of the concerns or issues have been comprehensively resolved in the agreement. (p. 6)

Just as traditional principles are applied in criminal cases of the Navajo Courts to restore balance and harmony to communities, a traditional tikanga framework also applies in the Te Kooti Matariki Court. The sentencing decision in R. v. Korewha (2017) demonstrates the judicial integrity of a judge who understands the context in which he sits. Rather than tactfully side stepping the issues, Judge Greg Davis actively engaged with the provisions of the sentencing legislation (see Sections 25 and 27 of Sentencing Act 2002) that allows him to work systematically through a plan of restorative justice with the defendant and his whānau. He draws together a community of support with a creative use of the legislation to make a difference to the lives of Korewha’s whānau. Ultimately, Judge Davis restored balance and harmony to his community.

Aroha

For Māori, aroha “conveys ideas of overwhelming feeling, pity, affection and passion” (Benton et al., 2013) and is often understood as “sympathy” and “charity” (Barlow, 2008). Aroha in a person is often described as an all-encompassing quality of goodness, expressed by love for people, land, and all living things.

Similar to the Navajo Tribal Courts, Te Kooti Rangatahi use elders. The judges of Te Kooti Rangatahi understand and respect the important role of the elders, kuia and kaumatua. Without support, aroha, and guiding words to the offenders, from the kuia and kaumatua, the Courts would not be effective. The aroha of kuia and kaumatua also influence the role of the judges, with judges acknowledging that the level of professional cultural competence that the kuia and kaumatua bring to the Court because of their expertise in te ao Māori.

Aroha is an emotional concept that is an almost instinctual way of reacting in relationships. The concept of aroha prescribes acceptable behavior conducive to maintaining harmonious relationships among whānau, hapū, and iwi. The elders of Te Kooti Rangatahi and Te Kooti Matariki possess aroha. They express aroha through their acts of genuine care and concern toward youths, regardless of their crime or circumstances. These acts of aroha add quality and meaning to a young person’s life. The elders of Te Kooti Rangatahi and Te Kooti Matariki possess the gift of aroha, shared gratuitously with the rangatahi without discrimination.

Final Thoughts: Initial Considerations on How to Extend the Jurisdiction of the Courts and Some Jurisprudential Thoughts on the Status of Tikanga to Consider

The prospect of extending the jurisdiction of Te Kooti Rangatahi and Te Kooti Matariki raise a multitude of interesting practical and jurisprudential questions, including whether the jurisdiction of these courts should be entirely criminal, civil, or limited to family and land law issues; how the extension would take place; and whether the courts would be extended, or whether a new court would be specially established?

The intention of this article has been to demonstrate that concerns regarding the use of customary norms in Western legal processes (which is what these Courts would require) should not in and of itself defeat the proposal that such an extension should take place. This is because the Navajo Nation’s use of customary norms has not hampered the judicial processes of that Nation.

In determining whether the jurisdiction of these Courts should be extended, the following additional questions will be briefly addressed:

  1. 1. What is the appropriate methodology to be employed to research how, and should such an extension should take place (see “How to Research Whether Extending the Courts’ Jurisdiction Has Merit”)?

  2. 2. What are some of the legal consequences that may arise from the use and status of tikanga Māori if the jurisdiction were, indeed, extended (see “Indigenous Common Law: Te Kooti Rangatahi, Te Kooti Matariki, and Navajo Courts”)?

How to Research Whether Extending the Courts’ Jurisdiction Has Merit

Further research into the question of whether to extend the jurisdiction of Te Kooti Rangatahi and Te Kooti Matariki is important in and of itself. It could provide new insights and a broader understanding of whether the existing criminal-justice system can meaningfully incorporate tikanga Māori and how its incorporation across our justice system can make a difference to offending and recidivism rates. This research could move beyond a descriptive account of marae court proceedings toward a theoretical understanding of how, for example, a marae-based domestic-violence court has the potential to heal domestic-violence offenders and their families, and to identify and treat social issues such as addiction and poverty (Morgan, Coombes, & McGray, 2007).

A qualitative research approach guided by a kaupapa Māori methodology (Smith, 2012) would be an appropriate research tool for ensuring that the development of general theoretical analyses remains closely tied to the specific observations and accounts of Māori issues. This research could provide insights into the value of tikanga/Indigenous principles across all judicial processes, from the arrest stage to bail applications, prosecution, and sentencing; it could also provide an evidence base for the development and extension of policies and legal processes aimed at correcting the overrepresentation of Māori in the criminal-justice system. Furthermore, this project could advance the understanding of how incorporating Indigenous perspectives and practices can assist in achieving better social outcomes.

To investigate and understand the value and potential scope of existing alternative models such as Te Kooti Rangatahi, one option is to investigate whether the incorporation of Indigenous tenets such as tikanga Māori meaningfully reduces incidences of violent crime and domestic violence within the wider criminal-justice system. To do this, one option would be to develop a hypothetical domestic-violence court to test the probative value of the research. This research would advance the understanding of how the incorporation of tikanga Māori across the criminal-justice system could assist in reducing the incarceration and recidivism rates for Māori while also providing a strong framework for the development of alternative judicial models that in turn would affect all within the criminal-justice system.

Indigenous Common Law: Te Kooti Rangatahi, Te Kooti Matariki, and Navajo Courts

The use of tikanga Māori concepts by the judges of Te Kooti Rangatahi and Te Kooti Matariki Courts indicate the flexible nature of tikanga Māori and the ability to blend tikanga customs and traditions within the criminal-justice system. This process could revisit the premise of “tikanga [Māori] common law,” an intriguing proposition.

Legal scholar Thomas (2009) notes:

As tikanga are essentially principles rather than rules, and those principles are not static, tikanga Māori could readily be absorbed into the common law of this country [emphasis added]. Again, there is no reason why the judges should not assimilate the principles of tikanga in the development of the law generally so as to develop an endemic jurisprudence [emphasis added], just as the judges in days gone by assimilated the customs of the times into the growing body of the common law of England. (p. 280)

Thomas further noted (2009):

The aim would be to enrich the law by incorporating tikanga as and when appropriate [emphasis added]. Māori principles regarding respect for the environment, for example, could have much to offer. (280)

Chief Judge Sian Elias , in Takamore v. Clarke(2012), noted that Māori custom according to tikanga is a part of the “values” of New Zealand’s common law and is a matter to be weighed (p. 94). Although the exact meaning of “value” is unclear, as is whether tikanga can indeed satisfy the tests prescribed by the Court, tikanga is part of New Zealand’s common law; the extent to which it is, however, is unresolved.

Nonetheless, the current intuitive use of “tikanga common law” by judges of Te Kooti Rangatahi and Te Kooti Matariki can be directly linked to healing the community that would result in reducing recidivism rates with the assistance of a desistance framework. This indicates a tacit acceptance of tikanga as a value of New Zealand’s common law. As common law, this does not substantially affect the concept of tikanga only in so far as the use of tikanga may be more amenable within the general criminal jurisdiction. For Māori, relying on tikanga is a nod to tino rangatiratanga or “self-determination.” What is more intriguing is that if the courts’ jurisdiction were extended, the continued and widespread use of tikanga might raise additional grounds for the status of tikanga to be not just a mere value but a source of law itself.

Guidance can be taken from the Navajo courts. Navajo Common Law is the law of preference in the Navajo Nation Courts. In Navajo Nation v. Platero (1991), for instance, the U.S. Supreme Court recognized the right of the Navajo Nation Courts to use Navajo Common Law. Like the mainstream courts, the Navajo Court was adversarial in design and, like Te Kooti Rangatahi judges, the Navajo judges incorporated traditional tenets into its proceedings as a way to heal and maintain community and kin relationships. It is therefore possible that the status of tikanga could reach a similar level of use and recognition in New Zealand to be a source of law. Although not a focus of the Te Kooti Rangatahi and Te Kooti Matariki, such a result would be an interesting and exciting jurisprudential development.

Conclusion

The inability of the mainstream criminal-justice system to ameliorate the disproportionate offending rates for Indigenous peoples in respective jurisdictions has arguably fueled the implementation of alternative forums, such as Indigenous courts. Although the composition, operation, and reach of these courts may slightly differ, the objective remains the same—to reduce reoffending rates, to reconnect offenders with their community, to achieve harmony, and to heal.

Various challenges remain for these Indigenous courts, including the ongoing tension of working within a non-Indigenous paradigm. Nonetheless, what it is clear is that the application of cultural tenets such as relatedness and reciprocity has shown success in terms of reducing offending rates. It could be that despite the challenges that these Indigenous courts face, a case can made that the jurisdiction should be extended not only across all stages of the criminal-justice system but also to civil and family jurisdictions.

Glossary

  • Aroha

    love, affection for others

  • Atawhai

    foster, caring for the welfare of others

  • Hapū

    subdivision of a tribe or of a subtribe

  • Hara

    crime, offense

  • Hee

    mistake, error

  • Hongi

    a greeting by the pressing of noses

  • Hui

    gathering people together for discussion or to socialize

  • Iwi

    a tribe that traces descent from a common ancestor or ancestors

  • Kai

    food

  • Kaitiaki

    caretaker or guardian

  • Kanohi ki te kanohi

    face to face, in person, in the flesh

  • Karakia

    recite ritual chants, say grace, pray, recite a prayer, chant

  • Kaumātua

    male elders

  • Kaupapa

    floor, stage, platform, layer; topic, policy, matter for discussion, plan, proposal, agenda, subject, initiative

  • Kawa

    symbol, sign, protocol

  • Kawanatanga

    government, dominion, rule, authority, governorship, province

  • Kuia

    female elders

  • Korero

    talk, speak

  • Mana

    prestige, authority, power, psychic force

  • Manaakitanga

    hospitality, kindness, generosity, support; the process of showing respect, generosity, and care for others

  • Mauri

    life force

  • Marae

    sacred meeting place, situated within a village, traditional meeting house, area in front of the whare

  • Muru

    wipe or rub; seizing of goods to address an imbalance

  • Ora

    well-being

  • Pākehā

    person of English descent; used in earlier times as reference to traders, settlers, missionaries

  • Pono

    just

  • Powhiri

    ritual ceremony of encounter

  • Rangatahi

    youth

  • Rangatira

    leader, person of senior lineage

  • Rangatiratanga

    leadership authority

  • Ritenga

    likeness, custom, customary practice, habit, practice, resemblance, implication, the normal way of doing things; ritual

  • Take

    reason

  • Tangata whenua

    a person of the land or people belonging to a tribal region; hosts, as distinct from visitors

  • Tangi

    weep, grieve, mourn, cry

  • Tapu

    set aside, sacred

  • Te reo

    Māori language

  • Te tiriti

    the Treaty of Waitangi

  • Te ture

    law

  • Tika

    correct, right

  • Tikanga

    principles, truth, customary practice

  • Tinana

    body

  • Tino rangatiratanga

    self-determination, sovereignty, autonomy, self-government, domination, rule, control, power

  • Tipuna

    ancestors, grandparents

  • Utu

    revenge, recompense, reward, price, payment; repayment in goods; retribution in battle to the death

  • Waiata

    song; to chant, to sing

  • Wairua

    spirit, spirituality

  • Whakahoki mauri

    restoring the balance

  • Whakama

    ashamed, embarrassed

  • Whakapapa

    layer; family tree

  • Whānau

    be born, give birth; family, extended family

  • Whanaungatanga

    relatedness

  • Whare

    house, dwelling

  • Whenua

    afterbirth; land, ground, earth, a country

Further Reading

Hasan-Stein, L., & Toki, V. (2017). Reflections from the roundtable: Access to justice—how do we heal historical trauma? Yearbook of New Zealand Jurisprudence, 15.Find this resource:

Marchetti, E. (2019). Indigenous courts, culture and partner violence. London, UK: Palgrave.Find this resource:

Policy, Strategy and Research Group, Department of Corrections. (2007). Over-representation of Māori in the criminal justice system: An exploratory report. Retrieved from Department of Corrections website.Find this resource:

Waitangi Tribunal. (2014). Te Paparahi o te Raki Waitangi tribunal report (Wai 1040). Wellington, New Zealand.Find this resource:

Walters, R., & Bradley, T. (2005). Crime statistics: “Official” and “unofficial” representations of crime and victimization. In R. Walter & T. Bradley (Eds.), Introduction to criminological thought (pp. 20–22). Auckland: Pearson Longman.Find this resource:

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Austin., R. (2009) Navajo courts and Navajo Common Law: A tradition of tribal self-governance. Minneapolis, MN: University of Minnesota Press.Find this resource:

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Notes:

(1.) Although not explicit, some constitutional provisions, such as in the Norwegian Constitution, when read together with other articles, provide tentative opportunities for the implementation of an Indigenous court.

(2.) See R. v. Gladue (1999); and the Magistrates Court (Koori Court) Act (2002), respectively.

(3.) Ministry of Justice (2012).