In his 1999 report to the state legislature, the Chief Justice of the Alaska Supreme Court noted the innovative circle sentencing court that has developed in conjunction with the magistrate's office in Kake. This example of local initiative for greater community responsibility over anti-social behavior reflects other restorative justice experiments within the state, the country and the world. It has arisen at a time when the effectiveness of justice services in rural Alaska is being questioned. On a visit to Kake, the Chief Justice had heard from the local residents how effective the circle had been in dealing with problems there.
A Justice Center research team working in Kake on legal ethnographic research funded by the National Science Foundation was able to observe the community's adoption of the circle sentence process over a period of eighteen months. What they saw was an example of a community selectively adopting and incorporating a model which community members also encountered in the context of the more global dialogue on justice issues provided by statewide agency conferences.
Circle sentencing is a form of restorative justice, one of a number that have emerged over the past decade in response to demands for community and victim involvement in the justice process. These community-based projects are value-based, seeking to repair harm done and to transform communities. As described by Bazemore and Schiff in Restorative Community Justice, they range from family conferences in lieu of juvenile court—an idea started in New Zealand and exported to Australia, Oregon and other states—to circles in correctional institutions in Minnesota, to meetings between shopping center owners and shoplifters, to victim-offender mediation in this country and the United Kingdom. Some of these justice projects are designed to prevent the occurrence of offenses; others intervene after arrest but before formal charging (and, hence, are linked structurally with diversion). Still others are initiated after the formal court process has begun. Circle sentencing, reintegrative shaming and similar approaches occur after conviction, in lieu of the traditional sentencing process. While many of these experiments have arisen in small homogeneous communities, highly diverse urban centers are also using restorative community processes.
The Justice Center researchers observed how presentations of the circle sentencing model that emerged in Carcross in the Yukon Territory in Canada opened discussions for the model now in place in Kake. In Carcross, circle sentencing occurs after conviction in the Crown court—the state court equivalent. Rather than issuing sentence in a city courtroom, however, the judge travels to the village to elicit community responses to the offense and the offender. The theory behind involving the community is that sentences will be more meaningful if created by consensus within the community, that the interests of the community will be better protected, and that victims and offenders will have the best chance for healing, particularly in situations where anonymity is not an option and relationships must be adjusted. As one Yukon Justice Committee member involved in circle sentencing states, "After a circle, there are thirty probation officers in the village who know what the offender is supposed to be doing and whose influence can be brought to bear." This involvement of the community has the added benefit of the construction of positive, proactive organizations. Thus, in Carcross, where the Justice Committee started out responding to post-conviction sentences, the committee now also intervenes before arrest, after arrest but before conviction, and after probation violation. The emphasis on value-based justice offers reconnection for victim, offender and community and includes spirituality and emotionality in the process. The goal is a more holistic approach to justice issues.
Crown Judge Barry Stewart and three local Justice Committee members from Carcross, Yukon Territory presented their model of circle sentencing to Alaska at the Sitka Native Justice Conference in 1996, a conference organized by the Alaska Native Justice Center to bring state and tribal justice issues to the fore. Judge Stewart had spent a decade promoting this model of local control over justice issues, both in Canada and in the United States, through international dispute resolution organizations such as the Society of Professionals in Dispute Resolution (SPIDR). The presentation in Sitka included statistical information confirming the effectiveness of circle sentencing for offenders who had participated (low recidivism, high satisfaction rates for community, offender and victim) and descriptions pointing to the marked contrasts between the western model of justice and the restorative qualities of circle sentencing. Circles in Canada are used not only in minor juvenile misdemeanor cases, but also in serious felonies, including domestic violence cases, for offenders with long criminal histories.
Since the Sitka conference, the circle sentencing presentation has been given at an annual magistrates' training conference sponsored by the Alaska Court System; at a Bureau of Indian Affairs annual providers' conference; in Kake at a tribe-sponsored training session; in Bethel at a training session sponsored by the tribe with federal financial support; and in Anchorage, through the Alaska Native Justice Center, for juvenile justice and local justice personnel. The Carcross group has also taken their form of restorative justice and problem solving elsewhere in Canada and the United States—to child protective services in Minneapolis, outside Indian reservations, and business corporations. Thus, the model is one now being explored at local, regional, national and international levels.
Although there is some variation, the general circle sentencing model requires an offender's application for the circle and a waiver from the state justice system. (In Carcross, the Crown judicial system ratifies the agreement from the circle and makes it the sentence.) Carcross requires an elder to sponsor an offender. This is set in motion when the offender brings an offering to the elder—a traditional incorporative activity—and obtains his or her support for the circle. Each offender is required to develop a healing plan and put together a healing committee, whose members will attend the circle. Similarly, the victim develops a safety plan and a safety committee. These individuals come up with suggestions for the circle, which they attend. Anyone who wants to do so may attend a circle (community members who experience the circle also benefit from it), but what goes on in the circle remains confidential except for what is publicly announced. A circle may take three to eight hours. Each participant talks in turn, holding a feather or a talking stick or other indicator of the right to speak. The discussion goes around the circle until the group as a whole reaches consensus about what the plan should be. Then the offender must agree to the plan and to completing it within a certain period of time.
Criticisms of the circle with regard to victims have surfaced in Canada and in the Navajo peacemaking process. The Navajo Nation has a long history of western-styled tribal and appellate courts. However, in the early 1990s, the Navajo Nation instituted a parallel justice system based on traditional concepts and processes. Navajo peacemaking utilizes techniques similar to the circle, including family and community members as support teams, a mediation approach and the guidance of elders. As described by Coker in "Enhancing Autonomy for Battered Women: Lessons from Navajo Peacemaking" (UCLA Law Review 47:1, 1999), domestic violence and victims' advocates express concerns that much interpersonal violence flows from issues of power and control. People fear that the circle will perpetuate the cycle of power and domination that results in victims in the first place. Thus, victims who are terrorized by their attackers are often in subjugated roles (child, spouse, elder), cut off from other support systems and vulnerable to psychological and physical power plays. Mediation in general, and circles specifically, do not necessarily militate against these power relations. The actors in the mediation or peacemaking need to be aware of, and have methods to counteract, repetitions of controlling behavior taken into this milieu. For example, a victim may not want to participate in a circle process, or a circle itself might not give adequate strength to the victim to speak openly. However, the Carcross presenters have emphasized that if the safety committee does its job and "systems people" (state agencies) do their jobs, these issues of power and domination should not occur.
Kake and Circle Sentencing
In Kake, issues of sovereignty and identity have been embedded in concerns about local autonomy and peacekeeping; "global" ideas and resources such as circle sentencing, described at numerous Alaska state conferences, reflect systems once used and now in the process of revitalization for local purposes. Thus, one can assess the impact of globalization through observing the operation of a centralized legal system in a diverse local community. A selective incorporation spearheaded by legal, tribal, and economic leadership has included unique adaptations to the demands of local clan identity.
Alaska's multitude of statewide, regional and federal conferences allows local program people from communities such as Kake to interact with funding and governmental agencies. Between October 5 and December 11, 1999, Kake tribal government personnel attended at least ten statewide and federal conferences on issues related to local governance, tribal operations, and child welfare. (The Justice Center researchers also attended most of these.)
The Justice Center researchers observed how ideas and opportunities presented in the larger forum, within a more global dialogue, were conveyed and incorporated by Kake at both city and tribal council meetings following these conferences. At two events—the magistrate training and the conference for BIA providers—representatives from Carcross made presentations. After this, Kake became the first Alaska Native village to arrange for training on circle sentencing. The tribal government of Kake—the Organized Village of Kake (OVK) Council—invited the circle-sentencing trainers from Carcross to provide the four-day training session in Kake. Individuals involved in anti-social behavior control in the village (drug and alcohol counselors, the magistrate, the chief of police, the Presbyterian and Salvation Army ministers and OVK staff) were the majority of those attending the training, but several members of the general community also came and two classes from the high school attended on the last day as well.
The particular method of conflict resolution presented in circle sentencing seemed to resonate for the Kake residents who participated. As might be expected, in Tlingit Kake, the Tlingit Carcross presenters relied more heavily on cultural references than they did in the more general presentations offered at regional and statewide conferences. Members of the circle were forthcoming and emotional in their comments. The Kake magistrate reported that he and others in his generation (he is in his 40s) had memories of sitting in a circle to resolve family problems. There was very little formal justice discussion; rather, the focus of those present was helping troubled individuals and families better respond to alcohol and drug problems and the legal problems that ensue from substance abuse. Significantly, the group altered the model that the Canadians presented to them to more closely reflect local priorities of the Raven and Eagle moieties and their responsibilities. The circle sentencing model, then, is not a blueprint that allows only one implementation; rather, there is room for local modification. While the basic model of the circle is to level the forum for the actors by giving each a chance to speak as the discussion moves around the circle, Kake instead used the keeper of the circle role to identify representatives of the Eagle and Raven clan and allowed them to call on speakers for each side of a dispute. In so doing, the Kake version of the circle reincorporated clan identification and authority. Although they stressed that the circle was a community problem-solving mechanism and therefore open to all, they considered it important to incorporate Tlingit values in the way the circle was conducted. In promoting the circle, the tribal leadership enhanced its credibility for the community. Its broad intention is noted by its name in Kake: "circle peacemaking." One community member has noted that the Kake circle peacemaking is a revival of something that has lain dormant in the community since people began to try to assimilate to mainstream western ways.
To date, thirty-six circles have been held in Kake. Because offenses such as underage consumption of alcohol that are suited to the circle process often come first to the magistrate, the magistrate's court, the police and OVK social services provide referrals to circle peacemaking in Kake—making the circles primarily a form of diversion from prosecution. All of the circles have involved misdemeanor activity or parental alcohol abuse. One young person who went through the circle for a minor consuming case was surprised by how many people attended. After everyone had spoken, he responded that he had had no idea how many people cared about him; rather, he had felt completely marginalized in the community. This provided a poignant example of the way in which the circle acts to reintegrate transgressors into the community of which they form a part. Currently, all minor consuming alcohol cases are referred to the circle.
In another example, one of the first circle cases, a substance-abusing mother agreed to get treatment outside the village while family members helped with her children. After a successful treatment program she returned to the village, where support systems put in place through the circle assisted her. One of the celebration circles applauded the success of this case and emphasized that the aim of the circle is not to condemn or even just put back to right, but rather to honor the community and its members. According to the tribal historian, who was the field assistant for the Justice Center research, "each circle makes its own shape." All the cases that have gone through the circle have been "successful" in the lay magistrate's eyes.
As with other alternative approaches to serving justice needs, the use of circle sentencing can involve jurisdictional questions. In Kake, tribal staff avoided a jurisdictional conflict when the local district attorney objected to a domestic violence case going to the circle, by deciding that this particular case was not appropriate for the circle after all. However, these cases raise the question of jurisdictional tension between state and tribal legal systems.
In Kake, the circle is open to both Natives and non-Natives: everyone is considered part of the community. This raises the question of what impact placing locality over sovereignty will have now that Kake has chosen such an approach to dispute resolution in lieu of a tribal court based on political sovereignty. Other interesting developments include the use of the circle for drug court and the designation of the circle as the tribal court for the Organized Village of Kake. OVK recognizes the values and possibilities of the circle for substance abuse issues, and thus is the recipient of one of nine new drug court planning grants for 2001. The village intends to use the circle for its drug court once the planning stage is over.
What seems to be happening is that ideas, ways, processes discussed in broad-ranging big forums are not adopted, but rather resonate with strains already present in individual communities. This seems to be happening simultaneously in many communities. Thus, one observes in this example from the Tlingit village of Kake, Alaska the ways in which a process developed in Canada, presented inter-nationally and introduced to Alaska by state, federal, and non-profit agencies reflected local processes and provided an opportunity to revitalize traditional problem-solving systems. An example of the selective incorporation of the global, "circle peacemaking" demonstrates the benefit of exposing communities to a variety of ideas that can combine with local readiness and a sense of identity in meaningful ways.
Lisa Rieger is an associate professor with the Justice Center.