Utilizing Custom and Tradition

The Tribal justice system differs significantly from the Anglo justice system. The Anglo tradition focuses on the rights of the perpetrator, and the Traditional Native system focuses on the best interest of the victim and the Tribe. By utilizing custom and tradition, Tribal courts can reach culturally appropriate judgments that can help the victim more than a punishment rendered against the perpetrator utilizing Anglo-tradition could. For example, Native communities have long recognized that violence committed against an individual also has significant consequences for the community.

Unlike in the Anglo justice system, victims are not expected to stand silently and alone throughout the dispute resolution process. In traditional tribal communities, the victim and her representative(s) frequently had input into the means and the type of retribution that the perpetrator would face.

  • Example: Navajo Custom and Tradition

    In the Matter of the Interest of D. P., a Minor, 3 Nav. R. 255, 256 (CR Dist Ct. 1982) describes the application of Navajo custom and tradition to punishment and sentencing:

    The Navajo tradition recognized that the central ideas of punishment were to put the victim in theposition he or she was before the offense by a money payment, punish in a visible way be [sic] requiring extra payments to the victim or the victim’s family (rather than the king or state), and give a visible sign to the community that wrong was punished. The offender was given the means to return to the community by making good his or her wrong. Surely this is a far better concept of justice than to leave the victim out of the process of justice and leaving the victim with not [sic] means of healing the injury done.

Another way that traditional Tribal courts differ from Anglo courts is that there is not as much emphasis placed upon formal legal training. Instead, the focus is on finding the right person to assist and stand with the victim in court. Many Tribes allow non-law school trained persons to practice law in their Tribal courts (including victim advocates, law students, and community members). Formal or informal representation of a victim as her legal counsel in criminal proceedings may be allowed under Tribal code provisions or by arguing that, under custom and tradition, victims were traditionally provided with support and a voice in all conflict resolution proceedings. Clerks of the court for each Tribal jurisdiction can provide information on admission to practice law. They can also direct advocates and others on where to locate rules of court, tribal codes, and other materials helpful to representation.

Representation of victim rights in Tribal courts may entail filing a formal notice of appearance as the victim’s counsel. Included in the notice of appearance can be a request to receive copies of all motions, filings, and orders in the case. Practitioners may wish to alert the court in their preliminary filing that they seek permission under the Tribal Code or custom and tradition, to file motions with the court and to make arguments on behalf of the victim. These arguments include conditions of release, sentencing, restitution, any motions to continue a trial, and plea agreements.

Since time immemorial, American Indian/Alaska Native victims and their supporters have provided significant input in traditional dispute resolution processes. Historically, restitution to make the victim, her family, her community, and the Tribe as whole as possible was the top priority. Restitution was not strictly limited to monetary payment or the exchange of goods for the benefit of one individual. There was the additional recognition that an injury to a victim reverberated throughout the community. The harm caused to a victim had substantial effects on the family who were dependent upon an injured or murdered victim’s support.

  • Example: Ex parte Crow Dog, 109 U.S. 556 (1883)

    In the United States Supreme Court case Ex Parte Crow Dog, 109 U.S. 557 (1883), a Lower Brule Sioux man murdered another Indian man named Spotted Tail. Under the law of his Tribe, Crow Dog was required to hunt for (and otherwise financially support) the victim’s dependent relatives as a punishment for the murder. The facts of the case recounted in careful detail, clearly illustrate that the Lower Brule Sioux recognized a more comprehensive class of people as “victims” than under Anglo law. All persons dependent upon the murdered man for their sustenance were considered victims. One could make an argument based upon custom and tradition, that compensation and restitution for an injured Lower Brule Sioux victim in Tribal court should cover all lost wages and lost labor used to support dependents.

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*NICCSA is a project of the Southwest Center for Law and Policy ( This project is supported by Grant No. 2017-SA-AX-K001, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.