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Nature's Law
Spiritual Life, Governance, Culture, Traditions, Resources, Context and Background
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An Apache Paradigm
Making Room

The Goal of "Justice"

The United States

Ensuring Space Is
Left Open In Canada

An Apache

The Informal
System of Justice

Customary Law

Canada, Too, Has
 Deep Differences

The Indigenous
 Justice Process

The Navajo
 Approach to

Visual representation of nature's laws

As Carey Vicenti, Chief Judge of the Jicarilla Apache Tribe, put it— "Laws were not made by an institution such as a legislative body but by the normative power of the entire society."

Each individual knew what was prohibited, where the prohibition came from, who would be empowered to decide corrective action, who would administer corrective action, and what the corrective action would be. Expectations of justice were entirely different. For instance, among the Apaches the telling of truth is extremely important. It was not because truthfulness had achieved such a high virtue in our society. Instead, we view our reputations as being the most important of personal possessions. Thus, if a person told a lie, the person would fall into disrepute as a liar. The implications of such values in current legal process have been that few criminal cases are contested. A person who has committed a wrong freely confesses it. To a certain degree, the requirement that government prove guilt beyond a reasonable doubt legitimizes deception. Therefore, a defendant’s rights are not necessarily perceived by Indian culture as something good.

Judge Vicenti also notes that restitution—a long-established practice common in many First Nations—has a very different objective than in the Euro-American justice systems. In American as in Canadian society, restitution is based on economic value. The Apache restitution, both in terms of the items involved and the manner of restitution, is symbolic of remorse.

In the act of offering restitution, there is a transfer of power from the perpetrator to the victim. In offering restitution, the perpetrator demonstrates the degree of remorse for having committed the intentional harm. The victim, after witnessing the gesture, has the power to determine whether the remorse was genuine. That determination depends on the degree to which the item or items involved in the restitutional gesture constitute a harm or loss to the perpetrator. If the offered restitution is without remorse, the victim can reject the restitution, and, thereafter, the perpetrator is disreputed until he or she comes forward with true remorse.

For certain problems there were certain known institutions that resolved those problems. One would not take a problem of one character to an institution that was not charged by tradition to solve those kinds of problems. And because we Apaches had placed such a high value upon our reputations, truthfulness was not a problem. Therefore, our institutions were not designed, as in American society, to discover the truth. Our institutions focused more upon determining the manner in which a transgression against social order would be remediated. As a result, in the development of the contemporary Apache courts, we have had a great deal of trouble developing a fine-tuned sense of legal process and a philosophy regarding evidence and burdens of proof and production. But our powers of remediation appear to go well beyond those employed by the Western world.

In the Apache concept of transgression, assessing the degree of intent or negligence is not of great importance in determining guilt or innocence. What is important is the devising of a remedy that addresses the reasons why the transgression occurred. Much more attention is placed upon the traditional participants determining other facts about the individual to assist in the finding a remedial solution. And, Judge Vicenti points out, the Apache remediator knows quite well that part of the remedy is in performing the exploration.

Family members and friends may be brought in to discuss the changing world of the individual. We may explore everything from what he or she eats to which direction he or she faces when going to sleep at night. We recognize that many of the proscriptions that have been handed down from generation to generation, although potentially obsolete or dogmatic, may have their justifications in older times. We cannot altogether abandon those inherited cautions simply because we have acculturated to the English language and an American way of life and cannot fully understand or appreciate the wisdom of our predecessors.

Although restitution, consisting of equivalent economic value, may be an appropriate remedy under some circumstances, in traditional Apache society we recognize that dialogue about the transgression may also be the best remedy as we restore the individual’s reputation. Depending on the nature of the transgression, we may require the restitutional gesture to involve more than merely a victim but a victim’s family, and even the entire society. We value remorse as a state of mind to be accomplished by a perpetrator. But we consider it essential that the internal and external life of any perpetrator be examined to determine whether the individual is healthy or whole. And ultimately, we desire to reintegrate the individual back into tribal society. . . In our society, we see the importance of accomplishing a state of remorse, in order to humble the perpetrator, but also to cure the victim.

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