The Native American court that settles cases outside the justice system

Read Time:8 Minute, 29 Second

The Guardian

Robert Jones was on edge, a Native American teen in a reservation border town courtroom.

He faced felony assault charges in Rapid City, South Dakota, home to a criminal justice system stubbornly plagued by racial disparities. Nearly all of the police, prosecutors, judges and jailers are white and more than half of the accused and incarcerated are Native American – despite comprising a fraction of the city’s population.

“When you’re in the western courts, you feel like you are alone, that you don’t have anyone with you,” said Jones, a citizen of the Oglala Lakota Nation. “That’s why people get so scared – feeling that something bad is going to happen.”

But Jones, 19, was lucky. His file landed with Pennington county prosecutors as they were cementing a groundbreaking partnership with a group of Lakota elders to divert some cases into the new Oyate court, or people’s court, which employs a process based on Native culture and aboriginal peacemaking principles that stress healing over punishment.

The effort is part of a wave of initiatives across the nation in Indigenous communities seeking to reclaim Native heritage and craft homegrown, culturally based solutions to the problems of poverty – and the host of traumas it nurtures – that have defined life for American Indians since they were forced to abandon their ancestral lands and lifeways for urban or reservation life. In Rapid City, those efforts include a new elementary school Lakota immersion language program and a grassroots volunteer effort to build an urban Indian center.

Jones’s case was turned over to the elders.

“When people get in trouble, just locking them up won’t help,” said Chris White Eagle, a Cheyenne River citizen who sits on the circle of elders. “With Oyate court we look deeper into trying to heal them. We get to ask the questions the courts don’t ask. Get to the root of the problem.”

Chris White Eagle, left, gestures while speaking with Pennington county state’s attorney Mark Vargo at a Lakota cultural celebration sponsored by White Eagle’s youth empowerment program. Photograph: Stewart Huntington

Officially launched last spring with twice-monthly meetings, the Oyate court now hears cases every week. The remarkable collaboration with the Pennington county state’s attorney’s office is modelled on “diversion” programs found in many jurisdictions across the country, in which some offenders avoid formal court processing and adjudication.

In the case of the Oyate court, a defense attorney or prosecutor can recommend a case file to the elders. All parties must agree to the change in venue – prosecutors, defense, defendant and the elders – and then the Oyate court proceedings begin, bringing Lakota values and culture into healing discussions and proscriptions.

“Some tools used in peacemaking are accountability, forgiveness and sincere apologies,” said Dr Polly Hyslop, an Upper Tanana River Athabascan and advisory committee member for the Native American Rights Fund Indigenous Peacemaking Initiative. “It really works to create healthier and safer communities.”

Rapid City is the nearly all-white 75,000-person economic hub for western South Dakota and three nearby Indian reservations – Pine Ridge, Cheyenne River and Rosebud. Simmering racial tensions periodically surface, as they did last month when a hotel owner tweeted that Native Americans would no longer be welcome in the establishment, prompting large-scale protests and a federal civil rights violation lawsuit.

The territory’s Native American citizens face some of the nation’s statistically stiffest headwinds, including low life expectancy and graduation rates and high unemployment, incarceration and addiction rates. Increasingly the Native American community sees cultural renaissance as the path to renewal.

“It took me well into my 30s before I found my spirituality and started going to sweat and Sundance,” said White Eagle, referring to inipi, or sweat, purification ceremonies and the sacred multi-day Sundance rituals, the once outlawed community gatherings involving gestures of personal sacrifice for the people. “Giving these kids a taste of that early on in life – I think that is key,” he said.

The Oyate court elders infuse Lakota values and culture into their healing discussions and proscriptions. “We stress the seven Lakota values: compassion, generosity, humility, sincerity, courage, perseverance, wisdom,” said Jonathan Old Horse, one of the nine elders who sit on the court and an Oglala Lakota citizen who is pastor of Rapid City’s Woyatan Lutheran church, where the court meets.

“Those are the traits that seem to be lacking in the community and the country today,” he said. “If we can get that teaching to these younger adults, it will click in their mind that this way of life that was enforced upon us is not the only way. It’s living the Red Road” – according to traditional Indian moral and ethical standards – “that teaches us personal responsibility and responsibility to our community”.


The state’s attorney involved in the Oyate court, Mark Vargo, had previously expanded his juvenile diversion program – a version of which is employed by most jurisdictions in the country – first to include young adults and then all ages. Not every case is eligible for such programs: they are generally limited to non-violent crimes and to participants who don’t have long police records. Participants must take responsibility – in writing – for the actions that resulted in their arrest and agree to follow a custom course of action that might include classes, apologies or paying restitution. Full compliance with diversion programs can lead to dropped charges and expunged records. Failure can result in cases popping right back up on the state docket.

“Early intervention with an active participation of a defendant can be more effective at keeping them out of the system than simply putting them in jail,” said Vargo in 2018, when he extended diversion opportunities to adult offenders. His growing diversion database shows lower recidivism rates for participants compared with the office’s averages and – after expanding his diversion efforts to all age groups – a next logical step was to breach the cultural gap and form partnerships with the Lakota community.

“We recognize huge racial disparities in our community with our Native American population,” said Lara Roetzel, the deputy state’s attorney for Pennington county. “They make up only – depending on what study you look at – 9 or 11% of our population but they are incarcerated at 60 or 70% of our jail population. That’s just wrong.”

Lara Roetzel, a deputy prosecutor in Rapid City. Photograph: Stewart Huntington

Roetzel said the territory needed some new ideas.

“What are we doing with this population that is not working?” she asked. “What can we do to connect with this unique Native American population? And now we have the best idea yet and that is Oyate court. The elders hear that case and they ask questions of the participant and get at the real heart of the matter. And then they come up with a plan to address whatever the real issue is.”

When the Oyate court began, it served only adult cases. By February the court’s initial successes prompted the elders and prosecutors to add young adult and juvenile cases and expand to weekly sessions. Now it is hearing all manner of cases up to, though not including, capital felony cases. And Oyate court could be ripe for growth beyond Rapid City.

“Other tribes have come to see what we’re doing,” said Old Horse. “And see how they might implement it in their territory.”

And it has caught the attention of other prosecutors. “Pennington county is a leader in implementing creative solutions,” said David LaBahn, the president of the Association of Prosecuting Attorneys, who invited Roetzel to present at his organization’s national convention in December. “This could be a model for other jurisdictions.”

Roetzel agreed. “I think that’s how we move forward with criminal justice in the 21st century,” she said. “We’re not going to solve problems by incarcerating people, we know that. We’re not going to solve problems with probation and parole. The statistics have proven that. I think the way we solve problems as prosecutors is by allowing communities that are impacted by crime to right those wrongs.”

Which doesn’t make it easy. Just ask Robert Jones, who was scared standing before a Pennington county circuit court judge and scared again when he faced the Oyate court elders’ circle.

“What made me nervous was these are my Native people, these are your elders and in Native culture you have to respect your elders,” he said. “It’s really nerve-racking because they’re judging you and saying things that make you think, ‘Like, dang, I really need to do better. I really need to get my life together.’”

Half a year after his arrest for his role in a fight that he says he joined to protect his brother, he is steadily employed and takes care of his infant son. He says that before he got arrested he was on a different, less healthy path and attributes the turnaround to the words of his elders. “They give you that extra push, that extra motivation,” he said. “And sometimes that extra push is what you need. I guess that’s what made me nervous, because I didn’t know if I had it in me.”

August 6, 2022 at 12:48PM Stewart Huntington in Rapid City

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