Arti Mohan is the Restorative Justice and Practices Program Manager at Counsel to Secure Justice, New Delhi, India. As a lawyer, Arti litigated for children who’ve been abused, in court. Since 2016, Arti has been designing and implementing restorative processes and spaces for children and adults as part of CSJ’s restorative justice and practices pilot project. She has also been designing and facilitating training on restorative justice and practices for various governmental and non-governmental stakeholders.
Arti has also been involved in restorative justice research, including being the Lead Editor of a project on Restorative Justice Around the Globe, published in Restoring Justice (2022). She has recently worked on a forthcoming chapter mapping restorative justice in India for the International Encyclopaedia of Restorative Justice.
Arti is also a member of the European Forum for Restorative Justice’s Values and Standards Committee since 2019 and has contributed to their work of designing values and standards for restorative justice. Arti has also been teaching restorative justice in law schools in India and the US and is currently an Adjunct Professor at the Vermont Law School, USA.
The relationship between modern-day restorative justice and Indigenous peoples’ justice practices has sparked much exploration. While many believe an inherent connection exists, intricate complexities and multifaceted perspectives surround this union. This piece seeks to illuminate the dynamic relationship between restorative justice and Indigenous justice practices, delving into their harmonious parallels and complex disparities.
Restorative justice exhibits significant parallels with various Indigenous peoples’ practices and historical dispute resolution practices across the globe. To name a few, the southern African concept of Ubuntu and the Mi’kmaq First Nations’ focus on community restoration all emphasise interconnectedness and relationality. Many Indigenous peoples today continue to employ community-based programs that bear significant resemblance with modern-day restorative justice principles. Exemplary practices such as the Navajo Peacemaker Courts in the United States, the Saskatchewan Cree Circuit Court and Alberta Tsuu T’ina Peacemaking Court in Canada, and the Rangatahi youth courts in New Zealand stand as testaments to the enduring relevance of Indigenous practices. These initiatives emphasise the involvement of extended families, focus on repairing relationships, and resonate with certain core values of restorative justice.
The assertion that modern restorative justice conferences have Indigenous origins is a common belief and often references traditional Māori practices and First Nations’ circles. The link between restorative justice and Indigenous practices is frequently touted as a historical fact in many mainstream restorative justice resources. Nevertheless, while some Indigenous peoples themselves advocate this association, a more detailed reflection highlights the complexity of this purported lineage. While certain similarities do exist, and practices of Indigenous peoples have indeed inspired many contemporary practitioners, the idea that modern restorative justice is an extension of Indigenous traditions is contested by researchers employing a decolonising lens. Even if well-intentioned, they believe this myth can lead to misconceptions, oversimplifications, and in some cases furtherance of harm against Indigenous peoples and communities.
An Appeasement Strategy?
While it is tempting to romanticise the connection between restorative justice and Indigenous practices, this assertion may be greatly exaggerated, especially in the context of its Māori origins (Young, 2017). For instance, the landmark Children, Young Persons, and Their Families Act of 1989 in New Zealand, is often hailed as a beacon of Indigenous values infused into restorative justice. However, the absence of Māori representation in the initial discussions surrounding the 1989 legislation raises questions about the Indigenous nature of the reform and has subsequently faced criticism as potentially reflective of colonial undertones (Tauri, 2014).
Illusive Promises
Critics caution that tying restorative justice to Indigenous practices may result in tokenisation and appropriation, even if inadvertently. Is the perception of restorative justice’s Indigenous roots a strategy to appease, perhaps watering down rich cultural traditions? Young (2017) suggests this myth might placate Indigenous communities without adequately addressing their unique needs. Despite the positive impacts of the New Zealand legislation, the underlying values and structures frequently fail to resonate with Indigenous identities (Toki, 2018).
The aspiration of restorative justice to reduce the overrepresentation of Indigenous individuals within the criminal justice system has not always been realised. For instance, the overrepresentation of Indigenous individuals in the criminal legal system persists in Australia despite the introduction of restorative justice (Little, Stewart, & Ryan, 2018; Young, 2019). In New Zealand, the integration of token Māori culture and practices into restorative justice for children has yet to manifest in a system transformation (Knight, 2019). The failure to authentically integrate Indigenous values and address post-colonial power dynamics has hindered the transformative potential of these initiatives.
The Complex Reality of Compatibility
The claim that restorative justice is inherently compatible with all Indigenous worldviews disregards the diversity and complexities within Indigenous cultures. Not all Indigenous peoples’ values resonate with modern-day restorative justice. The conceptualisation of crime also significantly differs for some Indigenous peoples, for instance, the Bolivian Aymara Indigenous people who perceive conflict is seen as caused by a breakdown in social relationships rather than wrong individual choices (Baffero, Wardak & Williams, 2023). In fact, a few values of some Indigenous peoples, such as collective responsibility and relational holism, may conflict with certain aspects of modern-day restorative justice that often focus on individual responsibility and a focus on repairing harm (Anderson, 2022).
Ethnocentric Pitfalls
The assumption that restorative justice universally aligns with Indigenous peoples’ practices is not entirely accurate and risks perpetuating ethnocentric perspectives. Daly (2017) cautions against re-engaging in a white-centred worldview by attaching Indigenous roots to restorative justice. She believes the correlation often ignores historical realities and imposes contemporary constructs onto diverse cultural traditions.
The intricate relationship between restorative justice and Indigenous justice practices demands careful examination. While some parallels exist, the direct assertion of Indigenous roots in modern restorative justice oversimplifies the intricate realities. Even though modern restorative justice may not mirror Indigenous practices, there is potential to foster authentic intercultural dialogues. However, in the pursuit of a just and healing approach, it is imperative to move away from tokenism and appropriation. Instead, the focus should be on the genuine and respectful integration of Indigenous practices. Restorative justice, when approached with a decolonising lens, can become a platform for exploring Indigenous justice mechanisms and facilitating healing. Reconciling modern restorative justice with Indigenous practices requires a comprehensive approach beyond superficial adaptations. By authentically honouring Indigenous practices, it is perhaps possible to transcend tokenisation and embrace transformation. In the words of Fania Davis (2019), “The bird looks backward to bring forth the seed of a new future”.
References
Anderson, J. (2022). The case for using culturally relevant values in restorative justice programming for Australian Aboriginal prisoners. International Journal of Restorative Justice, 5(2), 192–214. doi:10.5553/TIJRJ.000118
Baffero, P., Wardak, A., & Williams, K. (2023). The restorative nature of Aymara Indigenous justice in Bolivia. International Journal of Restorative Justice, 6(Online First). doi:10.5553/TIJRJ.000171
Daly, K. (2017). Restorative justice: The real story. In Restorative Justice. Routledge, (85–109).
Davis, F. E. (2019). The little book of Race and restorative justice: Black lives, healing, and US social transformation. Skyhorse Publishing Company, Incorporated.
Friedland, H. (2016). Navigating through narratives of despair: Making space for the Cree reasonable person in the Canadian justice system. University of New Brunswick Law Journal, 67, 269–312.
Jarrett, B., & Hyslop, P. (2014, spring). Justice for all: An indigenous community-based approach to restorative justice in Alaska. Northern Review, (38), 239+.
Knight, M. (2019). Viewing restorative justice in context: An Indigenous court process or a process of indigenisation? [[Doctoral Dissertation]. Auckland: The University of Auckland].
Little, S., Stewart, A., & Ryan, N. (2018). Restorative justice conferencing: Not a panacea for the overrepresentation of Australia’s indigenous youth in the criminal justice system. International Journal of Offender Therapy and Comparative Criminology, 62(13), 4067–4090. doi:10.1177/0306624X18764524
Marchetti, E. (2019). Indigenous and domestic and family violence specialist courts. Indigenous Courts, Culture and Partner Violence, 31–52.
Mirsky, L. (2004). Restorative justice practices of Native American, First Nation and other indigenous people of North America: Part one (pp. 5–6). International Institute for Restorative Practices.
Tauri, J. (2014). An indigenous commentary on the globalisation of restorative justice. British Journal of Community Justice, 12(2), 35+.
Toki, V. (2018). Indigenous courts, self-determination and criminal justice. Routledge.
Young, D. (2019). Your ways or our ways?: Addressing Canadian Neo-colonialism and restorative justice. Salus Journal, 7(2), 85–108.
Zabriskie, J. M. (2023). Searching for indigenous truth: Exploring restorative justice approach to redress abuse at American Indian boarding schools. Boston College Law Review, 64(4), 1039–1076.
