Indigenous models of restorative justice vary greatly among different communities. In many cases there are similarities, however, one should be careful not to assume that similarities between several community can be imposed amongst all indigenous people. The following three cases studies provide examples of indigenous community restorative justice models that are both similar and dissimilar. While the differences among these indigenous models are interesting, the focus here is on similarities and specifically these similarities that can be contrasted with the conventional justice system.

Native Hawaiian Hoʻoponopono

Like other indigenous peoples Native Hawaiians have their own method of maintaining relationships called ho’oponopono. Often characterized as “healing through ritualized communication,” it is a process informed by cultural principles of commitment, truth, aloha, confidentiality, and trust/respect. Ho’oponopono is still practiced, though, largely in the ‘ohana (family) setting. 

Although articulated differently many of the principles that inform ho’oponopono can be seen in Navajo peacemaking. Here, parties must enter the process voluntarily and with full intentionality, the parties themselves select a haku (facilitator) that is known and respected by both parties, the process incorporates more than just the parties in dispute, there is an expectation that more than one harm will be discussed, and the result is the restoration of the relationship or reintegration of those involved back to the ‘ohana or community.

Because processes that seek to restore human dignity and heal emotions require the participant to be open there is a high value on the parties appearing voluntarily. Ho’oponopono requires that the process be initiated by those in dispute. There must be a shared committed to the problem-solving process. In other words, the parties must have the same goal in mind. The process involved a willingness to share one’s emotions, a willingness to be honest, a willingness to be vulnerable. Once the process is initiative, a haku must be selected. The selection of an appropriate haku cannot be overstated. The haku guides the process and must be a mutually agreed upon as fair and impartial. Note that it is not necessary that the haku be independent of those involved, but merely that they not be involved in the dispute and possess the ability to be neutral. In fact, traditionally the haku drew upon his insight of the family to assist in drawing forth a resolution. Further, although it is the parties themselves that initiate the process, it is the haku would determines whether the correct conditions, such as sincerity, exist to move forward.

Once the appropriate conditions exist for ho’oponopono, the haku facilitates the kūkulu kumuhana or a coalescing of mana (energy/strength) towards a clear statement of the problem. The kūkulu kumuhana guides the participants as they engaged in a process of mahiki or an unraveling of each layer or event that created the hihia (entanglement of emotion or conflict). The process acknowledges that hala or core problem or transgression is not always what the parties believe it to be. The haku starts with the perceived transgression and through mahiki is untangles the emotions fully and completely until it leads to another deeper issue. This process is continued until the participants are able to trace their hihia back to the hala or core issue. Needless to say, this process takes time, which is understood and accepted. Arbitrary deadlines are not placed on the process as is frequently done in court order pre-trial mediation.  

In ho’oponopono the participants peel back each layer of the hihia, which may reveal additional necessary participants. As such, ho’oponopono seeks to include all those involved, including those who were mere witnesses to the hihia as they, too, sense these negative emotions. Absent participants is not an absolute barrier as participants can still send their mana towards the mahiki, however, untangling may be more difficult. Because the untangling process is filled with emotions, participants may only speak when given permission and they must address only the haku. One of the haku’s roles is to deflect emotions and clarify thoughts. Thus, while there is an acknowledgment of the emotional nature of the process there is also a recognition that unchecked or misdirected emotion creates more hihia. 

As with most indigenous restorative processes ho’oponopono is focused on a restoration of relationships. Implicit in restoration is a recognition that there was a relationship before the hihia. One cannot restore what was not there to begin with. With that said, modern practice of ho’oponopono in the family setting is powerful medicine to dealing with intra-family issues. The more tenuous the pre-hihia relationship the less clear it is that ho’oponopono is an appropriate method of resolution because the necessary conditions of commitment, truth, aloha, confidentiality, and trust/respect may not be present. 

When the hala is exposed and understood by those involved mihi (apology/forgiveness) can be achieved. Mihi “is often the quiet moment of recognition, compassion, release” accomplished by understanding and love rather than through spoken words. Immediate restitution or arrangements for restitution is then discussed. Traditionally, there is always restitution attached whether it be a payment to the gods to a repayment of the harm created, such as the return of stolen property. In restorative justice models there is belief that the offender must repair the harm to the victim, restitution to the gods in ho’oponopono can be said to be a recognition that an offense to one is an offense to the entire ‘ohana or community. 

Once there is mihi there can be kala (untying or release) of the hihia and a restoration of balance within the family. Forgiveness must always be provided to someone who has repented and asked for forgiveness. Kala, like its twin concept mihi, is a mutual process that recognizes that when there is hihia both the wrongdoer and the wronged hold negative emotions related to that transgression. Both must go beyond forgiveness and untie or unbind the cord that connects them. The act of restitution plays a role in allowing the wronged party to truly untie and move beyond the loss they experienced. The goal then is to strip the painful memory of the negative emotions entangled with it.

Navajo Peacemaking

One of the most notable indigenous restorative justice models is the Navajo Nation Peacemaking Courts. As the Navajo Nation’s Court system, based off the conventional justice system, became more developed the judges began to discover some problems with the conventional western justice system. Individual Navajos found the court system could not address all types of problems they encountered, the process was time-consuming and expensive, and the adversarial system did not comport with traditional Navajo concepts. After much discussion a core group of judges decided to reinstitute traditional Navajo Peacemaking in 1982 by creating the Navajo Peacemaking Court.

Implicit in the peacemaking is utilizing a process that is grounded in the Navajo belief system. Traditional Navajo problem solving involves three main stages: hozho (harmony), hochxo (disharmony) or anahooti (problem) to which Navajo common law is applied in order to restore hozho. Anahooti is created by a breach in one’s personal state of hozho by a disrupter or Naayee. A naat’aanii (facilitator) acts as a guide through the peacemaking process. The naat’aanii, who is selected by the community, obtains his or her authority based on demonstrated wisdom and their reputation in the community. However, while they may have life teachings to impart in the process they cannot act in a coercive or dictatorial manner.

Coercion is never tolerated among Navajos and so the Navajo Peacemaking Court requires that all parties consent in order for a case to be removed from the conventional justice system to Peacemaking. A case can be diverted from the Navajo Court through request for a court order or a peacemaking request can be made by any person directly to the Peacemaking Division. For example, if a couple would like to resolve a divorce and child custody issue through peacemaking they would first file in Navajo District Court and request a court order to go through the Peacemaking Division, provided that both parties agree. It is important to note that the request can be made pre-trial or during the sentencing phase, which is markedly different than restorative programs in the conventional western justice system, which almost always requires a guilty plea prior to entering into any restorative framework.

Embedded in Navajo Peacemaking are a set of foundational principles referred to as Navajo common law or law that all Navajos understand to be truth. The key principles for peacemaking are hozho, “talking things out,” nalyeeh (restitution), and consensus. Using these concepts the naat’aanii can assist the victim, offender, and their friends and family “talk things out” and ultimately heal the harm or breach in the victim’s (and often the offender’s) personal state of hozho. Through this process one can see that the naat’aanii holds significant authority over the process and the Peacemaking Program suggests that the naat’aanii be a clan or family elder. Having a naat’aanii who is familiar with the individuals, families, land, and customs is key in their being able to guide the participants as they would be better able to draw on these deep seeded shared values, experiences, and relationships to reach a resolution. 

Tikanga Māori

Tikanga Māori is often translated as Māori law, but more holistically it is the “system by which correctness, rightness or justice is maintained.” Under this definition, Tikanga Māori is inclusive of customs or behaviors that may not rise to the level of an absolute law, but are a culturally imposed habit or ethic. Māori are a tribal people and tikanga Māori can vary among the different tribes, but it is based upon a set of core values taken from how one is supposed to live their life. These values include, but are not limited to, whanaungatanga (kinship obligations), mana (prestige), take (cause), utu (obligatory obligation), ea (satisfaction), and kaitiakitanga (self-care). 

Traditionally when one individual wronged another the victim’s whanau (extended family) would demand muru (type of compensation or damages) on the transgressor’s whanau. Thus, a wrong is not seen as an individual wrong, but the responsibility of the whanau. Although ritualized compensation is no longer practiced, similar value-based concepts can be found in Māori restorative teaching that are still practiced. 

If a transgression or breach of tikanga the Māori have a process for restoring the wrong. When a potential breach of tikanga is brought to light, the first step is that the parties involved must agree that there has been a take (breach of tikanga). Once the take is agreed upon an appropriate utu (recompense) is discussed. It is only when there is an agreed upon utu that all the parties can reach a state of ea (successful restoration of relationship). The concept of whanaungatnga highlights the expectations and obligations placed on relatives. It is through whanaungatnga that this restorative process seeks to incorporate more than just the parties directly involved. 

Similarly, if a person is wronged that has lots of mana (energy derived from their place) then the utu required may be increased. Mana “has to do with the place of the individual in the social group.” An individual often draw their mana from their ancestors and so it again reconnects the individual with the larger whanau, hapu, and iwi. A person’s mana, thus, is linked to the utu that is required when there is a take. Utu is seen as one of the main processes that hold up relationships. In other words, the process of a wrongdoer providing utu serves to restore balance. 

While the this traditional form is no longer utilized, many of these concepts such as incorporating the larger community are incorporating into the Western criminal justice system when handling a Maori offender. The 2002 Sentencing Act providing the opportunity for judges to consider cultural elements when sentencing a Maori offender. An offender’s genealogy and ability of their whanau, hapu, iwi, or family to assist in rehabilitation are factors that are considered.

Publications

Riley, L. (2020). Bridging the Gap: Understanding Indigenous Legal Systems. In Poteau, C. (Ed.). Interdisciplinary Pedagogical Approaches to Intercultural Competence Development. Newcastle, UK: Cambridge Scholars Publishing.

Riley, L. (2022). Incompatible?: How can Indigenous and Western Legal Systems Work Together?, In Unsettling Colonialism in the Canadian Criminal Justice System: A Reader. Edmonton, Canada: Athabasca University Press.