Punitive Versus Restorative Justice
Last month the University of Washington Tribal Court Clinic celebrated a victory when the Tulalip Tribal Court of Appeals ruled in favor of Williams v. the Tulalip Tribes. Part of the UW’s Native American Law Center, the Tribal Court clinic primarily offers public defender services in criminal cases filed in the Tulalip Tribal Court. Another critical aspect of their work includes filing and providing representation in select appellate cases. “It’s about ensuring a fair process and working within Tribal appellate systems to strengthen the overall function of Tribal justice systems,” says Brenda Williams (no relation to the case), UW School of Law teaching professor and director of the Tribal Court Clinic.
While many people generally understand how the United States legal system works, there is less understanding, even among law students, about Tribal court systems. “It’s essential that law students graduate law school understanding that our justice system includes more than state and federal courts,” says Williams. “We have three sovereigns.”
Expanding the Legal Framework
For students and staff who support the Tribal Court Clinic’s work, it makes for an expansive learning experience. “There’s a hierarchy of what constitutes persuasive authority in the Tulalip Tribal court system,” says Tribal Court Public Defense Clinic Attorney and UW School of Law alumna Maya Titova, J.D. ’15. “Tribes create their own laws, and for meaning look first to their own precedent. The team must also grapple with more than just Tribal law when filing an appeal. We look at other Tribal courts, federal courts, state courts — pretty much everything can be on the table.”
As a probation violation hearing, the case of Williams v. the Tulalip Tribes involved the appellant challenging the court’s procedures following his conviction. The issues included whether the court rightly took away Daniel Williams Jr.’s probation. In finding that it did not, the Court of Appeals found the Probation Court made a mistake when it relied upon inadmissible evidence, entered a clearly erroneous factual finding, and restarted his three years of probation beginning after he completes the three-year prison sentence.
Ultimately, on all three issues, the appeals court ruled in favor of Daniel Williams Jr., thanks to the work of Titova and former clinic student Meredith Harris, J.D. ’21, who co-led the case as a volunteer attorney. The appellate team also had support from summer clinic student interns, Staff Attorney Taylor Herring, J.D. ’20, former Staff Attorney Renee Ambacher, J.D. ’20 and Williams, J.D. ’97.
“One of the unique things about the Tribal Clinic is we always work everything as a team,” says Titova. “It allows us to incorporate multiple perspectives on the issues.”
“This was absolutely a team effort, and I am thrilled that our team was able to obtain a victory for our client,” says Harris.
In addition to the personal impact of the ruling for solidifying the rights of Daniel William Jr., the ruling also supports Tribal court systems in various stages of development by inviting review by Tribally appointed justices. “The Tulalip Tribal Court system is recognized as an outstanding national leader with a well-developed system,” says Williams. “Within that system, the probation revocation part of the sentencing process is at a more nascent stage, and it’s natural that a court system would evolve this way. The appellate process is an important part of rendering the system valid for Tribal members, the community, and for other systems looking at this Tribal court.”
Applying Indigenous Wisdom
Another factor in the case was the nature of the offense, which included domestic violence. These cases demonstrate the tension between punitive and restorative justice systems.
“The challenge here is whether a person should be released to treatment or confined to jail,” says Williams. “This is a case about the two sides of the criminal justice system. The Tribal courts are in a realm where community protection and Tribal member wellness, even for the accused, are both central to the process. Generally, state courts tend to be wholly punitive and expensive. Defendants incarcerated in a jail cell costs governments just over $70,000 per misdemeanor defendant, per year. And with that cost, how has the system addressed the issues that put them there in the first place?”
“This case reminds probation courts of the emphasis on restorative treatment and wellness in general,” says Titova.
While there are no formal mechanisms for it to happen, Williams stresses that state courts could learn a lot from Tribal courts, and their balancing of safety and restorative justice as two sides of the same coin.
The Tribal clinic has now graduated more than 200 law students. With many more students to come, the potential to increase knowledge within and across the three systems, tribes, states and the federal government, continues to grow.
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A recent Tribal Court appellate victory by the UW Tribal Court Clinic highlights lessons to be learned from Tribal courts about alternatives to punitive justice, namely that balancing safety and restorative justice are two sides to the same coin.
“It’s essential that law students graduate law school understanding that our justice system includes more than state and federal courts. We have three sovereigns,” says Brenda Williams, UW School of Law teaching professor and director of the UW Tribal Court Clinic. The clinic’s recent Tribal appellate victory offers a valuable study on the tension between punitive and restorative justice. It is also a prime example of Tribal appellate justices, reviewing lower Tribal court decisions, and rendering a decision that ensures important Tribal member rights are protected.
For students and staff who support the Tribal Court Clinic’s work, it makes for an expansive learning experience. “There’s a hierarchy of what constitutes persuasive authority in the Tulalip Tribal court system,” says Tribal Court Public Defense Clinic Attorney and UW School of Law alumna Maya Titova, J.D. ’15. “Tribes create their own laws, and for meaning look first to their own precedent. The team must also grapple with more than just Tribal law when filing an appeal. We look at other Tribal courts, federal courts, state courts — pretty much everything can be on the table.” This recent clinic appellate victory offers a window into what this looks like and what’s at stake.