Indigenous Justice Systems and Tribal Society
This page is archived material and is no longer updated. It may contain outdated information and broken links. The material
presented on these pages is the product of five regional symposia held on restorative justice between June 1997 and January
In many contemporary tribal communities, dual justice systems exist. One is based on what can be called an American paradigm
of justice, and the other is based on what can be called an indigenous paradigm.
The American paradigm has its roots in the world view of Europeans and is based on a retributive philosophy that is hierarchical,
adversarial, punitive, and guided by codified laws and written rules, procedures, and guidelines. The vertical power structure is upward, with decision making limited to a few. The retributive philosophy holds that because
the victim has suffered, the criminal should suffer as well. It is premised on the notion that criminals are wicked people
who are responsible for their actions and deserve to be punished.  Punishment is used to appease the victim, to satisfy society's desire for revenge, and to reconcile the offender to the community
by paying a debt to society. It does not offer a reduction in future crime or reparation to victims.
In the American paradigm, the law is applied through an adversarial system that places two differing parties in the courtroom
to determine a defendant's guilt or innocence, or to declare the winner or loser in a civil case. It focuses on one aspect
of a problem, the act involved, which is discussed through adversarial fact finding. The court provides the forum for testing
the evidence presented from the differing perspectives and objectives of the parties. Interaction between parties is minimized
and remains hostile throughout. In criminal cases, punitive sanctions limit accountability of the offender to the state, instead
of to those he or she has harmed or to the community.
The indigenous justice paradigm is based on a holistic philosophy and the worldview of the aboriginal inhabitants of North
America. These systems are guided by the unwritten customary laws, traditions, and practices that are learned primarily by
example and through the oral teachings of tribal elders. The holistic philosophy is a circle of justice that connects everyone involved with a problem or conflict on a continuum,
with everyone focused on the same center. The center of the circle represents the underlying issues that need to be resolved
to attain peace and harmony for the individuals and the community. The continuum represents the entire process, from disclosure
of problems, to discussion and resolution, to making amends and restoring relationships. The methods used are based on concepts
of restorative and reparative justice and the principles of healing and living in harmony with all beings and with nature.
Restorative principles refer to the mending process for renewal of damaged personal and communal relationships. The victim
is the focal point, and the goal is to heal and renew the victim's physical, emotional, mental, and spiritual well-being.
It also involves deliberate acts by the offender to regain dignity and trust, and to return to a healthy physical, emotional,
mental, and spiritual state. These are necessary for the offender and victim to save face and to restore personal and communal
Reparative principles refer to the process of making things right for oneself and those affected by the offender's behavior.
To repair relationships, it is essential for the offender to make amends through apology, asking forgiveness, making restitution,
and engaging in acts that demonstrate a sincerity to make things right. The communal aspect allows for crime to be viewed
as a natural human error that requires corrective intervention by families and elders or tribal leaders. Thus, offenders remain
an integral part of the community because of their important role in defining the boundaries of appropriate and inappropriate
behavior and the consequences associated with misconduct.
In the American justice paradigm, separation of powers and separation of church and state are essential doctrines to ensure
that justice occurs uncontaminated by politics and religion. For many tribes, law and justice are part of a whole that prescribes
a way of life. Invoking the spiritual realm through prayer is essential throughout the indigenous process. Restoring spirituality
and cleansing one's soul are essential to the healing process for everyone involved in a conflict. Therefore, separation doctrines
are difficult for tribes to embrace; many find it impossible to make such distinctions. Whether this is good or bad is not
the point. It is, however, an example of the resistance of indigenous people to accept doctrines or paradigms that contradict
their holistic philosophy of life.
Law as a Way of Life
The concept of law as a way of life makes law a living concept that one comes to know and understand through experience. Law,
as life, is linked to the elaborate relationships in many tribal communities. In some tribes it is exemplified by tribal divisions
that represent legal systems prescribing the individual and kin relationships of members and the responsibilities individual
and group members have to one another and to the community. For example, in several Pueblo tribes, one is born into one of two moieties, or tribal divisions, decided by patrilineal
lines. A woman can change membership only through marriage, when she joins her husband's moiety. Males generally cannot change
their moiety, unless it is done during childhood through adoption or if their mother remarries into the opposite moiety. This
illustrates how tribal law becomes a way of life that is set in motion at birth, and continues through an individual's life
The indigenous approach requires problems to be handled in their entirety. Conflicts are not fragmented, nor is the process
compartmentalized into pre-adjudication, pretrial, adjudication, and sentencing stages. These hinder the resolution process
for victims and offenders and delay the restoration of relationships and communal harmony. All contributing factors are examined
to address the underlying issues that precipitated the problem, and everyone affected by a problem participates in the process.
This distributive aspect generalizes individual misconduct or criminal behavior to the offender's wider kin group, hence there
is a wider sharing of blame and guilt. The offender, along with his or her kinsmen, are held accountable and responsible for
correcting behavior and repairing relationships.
Indigenous Systems Today
The status of tribes as sovereign nations are both preconstitutional and extraconstitutional. Tribes continue to possess four
key characteristics of their sovereign status: a distinctive permanent population, a defined territory with identifiable borders,
a government exercising authority over territory and population, and the capacity to enter into government-to-government relationships
with other nation-states.
The administration of justice, law, and order is a function of government retained by the tribes as sovereign nations. It
is within this realm that indigenous justice systems exist. Although there have been many efforts to limit the jurisdiction
of tribal justice system  , tribes retain the authority to determine the legal structure and forums to use in administering justice and to determine
the relationship of the legal structure with other governing bodies. Tribes have personal jurisdiction over their members
and non-member Indians, territorial jurisdiction over their lands, and subject matter jurisdiction over such areas as criminal,
juvenile, and civil matters. While limited by the Indian Civil Rights Act in sentencing,  tribes have concurrent jurisdiction over the felony crimes enumerated under the Major Crimes Act.
The forums for handling disputes differ for each tribe, which may use varying combinations of family and community forums,
traditional courts, quasi-modern courts, and modern tribal courts.
Family forums, such as family gatherings and talking circles, are facilitated by family elders or community leaders. Matters
usually involve family problems, marital conflicts, juvenile misconduct, violent or abusive behavior, parental misconduct,
or property disputes. Customary laws, sanctions, and practices are used. Individuals are summoned to these gatherings following
traditional protocols initiated by the chosen elder. For example, in Pueblo communities the gathering is convened by the aggrieved
person's family, which must personally notify the accused and his or her family of the time and place of the gathering.
Generally, elders are selected as spokespersons responsible for opening and closing the meetings with prayers. During the
meeting, each side has an opportunity to speak. The victim may speak on his or her own behalf, and the family may assist in
conveying the victim's issues. Extended family members often serve as spokespersons if the victim is very young or vulnerable.
Similarly, a spokesperson may be designated to speak on behalf of the accused, especially if the accused is a juvenile or
if other circumstances prevent the accused from speaking. When the family forum cannot resolve a conflict, the matter may
be pursued elsewhere. Offender compliance is obligatory and monitored by the families involved. It is discretionary for decisions
and agreements to be recorded by the family.
Community forums require more formal protocols than family forums, but draw on the families' willingness to discuss the issues,
events, or accusations. These are mediated by tribal officials or representatives. Some tribes have citizen boards that serve
as peace makers or facilitators. Customary laws, sanctions, and practices are used. Personal notice is made by tribal representatives
to the individuals and families involved. Usually, this is all that is necessary to compel individuals to meet in both the
family and community forums. When necessary, a personal escort to the gathering place may be provided by tribal officials.
In some tribal communities notice may be by mail.
In the community forum, the tribal representative acts as facilitator and participates in the resolution process along with
the offender and victim and their families. As with the family forum, prayers are said at the beginning and at closure. An
unresolved matter may be taken to the next level, however, but tribes may or may not offer an appeal process for the community
forum. In the Navajo peacemaker system, formal charges in the Navajo district court may be filed. In some Pueblo communities,
matters may be pursued through the traditional court. Offender compliance is obligatory and monitored by the families involved
and tribal officials.
Traditional courts incorporate some modern judicial practices to handle criminal, civil, traffic, and juvenile matters, but
the process is similar to community forums. These courts exist in tribal communities that have retained an indigenous government
structure, such as the Southwest Pueblos. Matters are initiated through written criminal or civil complaints or petitions.
Defendants are often accompanied by relatives to the hearings. Generally, anyone with a legitimate interest in the case is
allowed to participate from arraignment through sentencing. Heads of tribal government preside and are guided by customary
laws and sanctions. In some cases written criminal codes with prescribed sanctions may be used. Offender compliance is mandated
and monitored by the tribal officials with assistance from the families. Noncompliance by offenders may result in more punitive
sanctions such as arrest and confinement.
Defendants are notified in writing. Although rare, matters may be appealed to the tribal council. In some tribes where a dual
system exists, interaction between the modern American court and traditional court are prohibited. That is, one may not pursue
a matter in both lower-level courts. However, an appeal from either court may be heard by the tribal council, which serves
as the appellate court. Generally, then courts record proceedings and issue written judgment orders.
Quasi-modern tribal courts are based on the Anglo-American legal model. These courts handle criminal, civil, traffic, domestic
relations, and juvenile matters. Written codes, rules, procedures, and guidelines are used, and lay judges preside. Some tribes
limit the types of cases handled by these courts. For instance, land disputes are handled in several Pueblo communities by
family and community forums. Like traditional courts, noncompliance by offenders may result in more punitive sanctions such
as arrest and confinement. These are courts of record, and appellate systems are in place.
Modern tribal courts mirror American courts. They handle criminal, civil, traffic, domestic relations, and juvenile matters
and are guided by written codes, rules, procedures, and guidelines. They are presided over by law trained judges and often
exist in tribal communities that have a constitutional government. Like traditional courts and quasi-modern tribal courts,
non-compliance by offenders may result in more punitive sanctions such as arrest and confinement. Like quasi-modern tribal
courts, these are courts of record, and appellate systems are in place.
Some of the quasi-modern and modern courts incorporate indigenous justice methods as an alternative resolution process for
juvenile delinquency, child custody, victim-offender cases, and civil matters. The trend of tribal courts is to use the family
and community forums for matters that are highly interpersonal, either as a diversion alternative, as part of sentencing,
or for victim-offender mediation. Some are court-annexed programs such as the Alternatives For First Time Youth Offenders
Program sponsored by the Laguna Pueblo tribal court in New Mexico. Under this program, juvenile offenders are referred to
the village officers, who convene a community forum. Recommendations for resolving the matter may be court-ordered, or the
resolution may be handled informally by the village officers. This joint effort by the court and village officers allows them
to address the problem at the local village level and to intervene early to prevent further delinquency.
Characteristics of Indigenous Law
Common terms or references to the law of indigenous societies include customary law, indigenous law, native law, and tribal
or native law ways. All refer to the same concept.
Customary law is generally derived from custom. Custom in this sense means a long-established practice that has acquired the
force of law by common adoption or acquiescence; it does not vary. 
Tribal common law is based on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices.
In some tribes, the tribal common law has been set out in different court decisions and written opinions over time and has
become case law.  Among several Pueblo communities, the matrilineal system holds that property belongs to the female. In a divorce or separation,
property is divided according to the matrilineal definitions of property ownership and is written into the decisions of the
traditional or tribal court. Similarly, Navajo courts incorporate Navajo common law in decisions in probate, criminal, and
child custody cases, and marital conflicts. 
For many tribes along the Northwest coast such as the Yurok, customary laws dictate the areas where families can conduct their
fishing, hunting, and gathering. These areas are passed down from one generation to the next. When someone fishes in another
family's area, it is considered an affront to the entire family. By custom, the wronged family convenes a family forum as
the proper way to handle the matter and to request compensation. Compensation may be with fish, fishing gear, feathers, hides,
beadwork, traditional clothing, or other forms of payment.
Among several Pueblo communities, it is customary for discipline to be administered by the fiscale, who is responsible for
maintaining the peace and overseeing the welfare of children and youth. It is a general practice for parents to summon the
fiscale when their children are unruly or misbehaving. The fiscale advises the children about the consequences of their misconduct
and may reprimand them or refer them and their parents to services such as counseling.
In many tribes, information, beliefs, and customs are handed down orally or by example from one generation to another.  For example, in the Minto Tribal Court of Alaska the resolution process involves a segment dedicated to "traditional counseling"
by the facilitator or presiding judge. There is a general practice of "advising/giving" in the traditional courts of the Pueblos
and the "talking to" in the Navajo peace making system. This segment is traditionally set aside for the spokespersons or tribal
officials to speak of community values, mores, and the consequences of misbehavior or misconduct. Often these are conveyed
in parables or creation narratives and beliefs. Advice is given about harboring vengeful feelings, and everyone is encouraged
to renew relationships.
The Indigenous Justice Process
Indigenous methods of conflict resolution include traditional dispute resolution, peace making, talking circles, family or
community gatherings, and traditional mediation, described only by the language of the tribal community. All these refer to
the methods of resolving problems and to the methods of restorative and reparative justice.
The structure of relationships in many tribal communities is paramount to a legal system exemplified by the clan system. Tribal
law determines clan identification, which is often matrilineal. Among Pueblo communities, moiety and clan affiliations determine
for which group an individual will dance, sing, or hunt in social activities, which religious or medicine groups one may join,
which political positions one may hold, whom one may court or marry, or what property one may own. The clan system regulates
the behavior of its members. The interlocking relationships in tribal communities often determines the flow of how problems
For example, in many tribal communities, parents and the extended family are expected to nurture, supervise, and discipline
their children. When parental misconduct occurs, such as with physical or sexual abuse or neglect, the parents and extended
family convene through the leadership of an elder to address the matter. In a minor case of physical abuse or neglect, the
family forum is used. The distributive aspect is invoked extensively to ensure protection of the children and to monitor and
enforce proper parental behavior and responsibility, which is regulated by the family. More serious cases may involve tribal
In the family and community forums and the traditional courts, those accused of wrongdoing are required to give a verbal account
of their involvement in an incident, whether or not they admit to the accusations.  This verbal account is key in discovering the underlying factors precipitating the problem. It requires participation by
the offender's family and relatives who may have to explain the offender's misconduct, especially when some type of victimization
has occurred. For example, parents may be admonished for not providing proper discipline and supervision for their children
who vandalized or destroyed property. Relatives may be criticized for allowing a son or brother to abuse his wife or children.
Verbal accountability by the offender and the offender's family is essential to express remorse to the victim and the victim's
family. Face-to-face exchange of apology and forgiveness empowers victims to confront their offenders and convey their pain
and anguish. Offenders are forced to be accountable for their behavior, to face the people whom they have hurt, to explain
themselves, to ask forgiveness, and to take full responsibility for making amends. Observing and hearing the apology enables
the victim and family to discern its sincerity and move toward forgiveness and healing. Forgiveness is strongly suggested,
but not essential for the victim to begin healing.
The restorative aspect frequently involves the use of ritual for the offender to cleanse the spirit and soul of the bad forces
that caused the offender to behave offensively. Ceremonial sweats, fastings, purifications, and other methods are used to
begin the healing and cleansing process necessary for the victim, the offender, and their families to regain mental, spiritual,
and emotional well-being and to restore family and communal harmony. 
The agreements reached in family and community forums are binding. Participants are compelled to comply through the same interlocking
obligations established in individual and community relationships. Compliance and enforcement are important aspects of indigenous
systems because there is little coercion. Accepting punishment does not guarantee that an offender will be accountable. Therefore,
it is essential that offenders perform outward acts to demonstrate their responsibility for correcting behavior. Offender
accountability is essential to ensure compliance with decisions and to prevent further criminality or relapse into deviant
behavior. Equally important is for punitive sanctions to be decided and applied by individuals who were affected by the offender's
Historically, there is little evidence of penal systems in tribal communities. This fact remains today, although there are
many who express the need for secure confinement facilities to address serious and violent crimes. Many customary sanctions
to appease victims and to safeguard against vengeance are still in use. These include public ridicule, public shaming, whippings,
temporary and permanent banishment, withdrawal of citizenship rights, financial and labor restitution, and community service.
Some tribes still temporarily or permanently banish individuals who commit serious or violent crimes. Among the Warm Springs
Tribes in Oregon, it is customary to refer lawbreakers to the "whipman," who may whip a person for misconduct. In the Laguna
Alternatives for First Time Youth Offenders Program, community service is used extensively.
The indigenous process is also used in offenses where there are no victims, such as problems between parents and children,
individual misconduct, or alcohol consumption. Family members affected by the offender's behavior or who are concerned with
the offender's welfare may participate. Many tribal people view crime, delinquency, and other deviant behaviors as symptoms
of bigger family problems. Widening the affected target group to include the offender, parents, siblings, and other extended
family members enlists help from those most familiar with the situation to assist in correcting and preventing more serious
The indigenous process can often be extremely uncomfortable and emotional because it involves participation by everyone affected,
but great care is taken to provide a safe environment for matters to be discussed. The distributive nature of this process
uses the extended family as a resource for the offender, the victim, and the community to resolve problems, to ensure compliance,
to provide protection, and to retain ownership of the problems. 
Preserving Indigenous Systems
Tribes are faced with the inevitable conflict created by two justice paradigms competing for existence in one community. Many
Americans believe the law is something to be applied and justice is something to be administered. In contrast, tribes traditionally
believe law is a way of life and justice is a part of the life process. For one paradigm to exist, it must convert people
to follow it. Although it appears that tribal courts follow the Anglo-American legal system, many adhere to the traditional
values of the tribal justice system. This is largely because tribes have been wary of the ethnocentric view of the Western
colonizers who devalued their legal structures and wanted to replace them with an imported Western system.  Tribes were also required to participate in the Anglo American legal system in order to protect their lands and people, but
they did so without trusting or believing it. This foreign system was imposed by the federal government, thereby thwarting
their efforts to convert the tribes.
Attempts to strengthen and retraditionalize tribal justice systems stem from discontent with the efforts of modern tribal
courts to address the crime, delinquency, social, and economic problems in tribal communities. It is joined by the dominant
culture's current disillusionment with justice in this country, which causes doubt about retributive justice and a move toward
a more restorative framework.  This emerging restorative perspective for the American justice system is illustrated by the following values:
All parties should be included in the response to crime-offenders, victims, and the community. Government and local communities
should play complementary roles in that response. Accountability is based on offenders understanding the harm caused by their
offense, accepting responsibility for that harm, and repairing it...Restorative justice guides professionals in the appropriate
and equitable use of sanctions to ensure that offenders make amends to victims and the community. 
Conversion to the American justice paradigm is a difficult choice for tribes, particularly those with a functional indigenous
justice system. For many, full conversion is not possible because the indigenous justice paradigm is too powerful to abandon.
The strong adversarial features of the American justice paradigm will always conflict with the communal nature of most tribes.
For this reason, the inherent restorative and reparative features of the indigenous justice paradigm will continue to be more
appealing to the majority of tribal people.
Nonetheless, it is important for tribes to identify their community strengths and views on justice, law, and order. The role
of non-Indians is to assist and support the tribes in strengthening their justice systems and to suppress the urge to take
over or replace them. It is the sovereign and cultural right of tribes to explain, interpret, change, enact, and apply their
own laws, oral and written, through whatever mechanisms they choose. It is their responsibility to teach the knowledge and
skills embedded in their indigenous paradigm to their young. American Indian and Alaskan Native people have the clearest understanding
of their indigenous law ways because they live them. They must be the messengers of this law to preserve its integrity, authority,
power, and meaning to the people.
The many intrusions to the tribal way of life have interfered with the natural evolution of the indigenous justice paradigm,
but while slowed, it has never stopped. The tribal resurgence to strengthen and retraditionalize their judiciaries has rejuvenated
the evolutionary process. While mainstream society is in the midst of shifting from a retributive justice model to a restorative
one, many tribes are strengthening their indigenous paradigm. In doing so, they are empowering themselves to provide a justice
system that has meaning to the people they serve and the power to perpetuate what was preserved by the ancestors and passed
on by the elders as testimony of their commitment to the future of tribes. Contemporary American Indian and Alaskan Native
people are now faced with making the same commitment to preserve the indigenous justice system the elders maintained and find
ways to perpetuate it.
Differences in justice paradigms
AMERICAN justice Paradigm
- Communication is rehearsed
- English language is used
- Written statutory law derived from rules, and procedure, written record
- Separation of powers
- Separation of church and state
- Adversarial and conflict oriented
- Isolated behavior, freeze-frame acts
- Fragmented approach to process and solutions
- Time-oriented process
- Limits participants in the process and solutions
- Representation by strangers
- Focus on individual rights
- Punitive and removes offender
- Prescribed penalties by and for the state
- Right of accused, especially against self-incrimination
- Vindication to society
INDIGENOUS Justice Paradigm
- Communication is fluid
- Native language is used
- Oral customary law learned as a way of life by example
- Law and justice are part of a whole
- The spiritual realm is invoked in ceremonies and prayer
- Builds trusting relationships to promote resolution and healing
- Talk and discussion is essential
- Reviews problem in its entirety, contributing factors are examined
- Comprehensive problem solving
- No time limits on the process, long silences and patience are valued; inclusive of all affected individuals
in the process and solving problems
- Representation by extended family members
- Focus on victim and communal rights
- Corrective, offenders are accountable and responsible for change
- Customary sanctions used to restore victim-offender relationship
- Obligation of accused to verbalize accountability
- Reparative obligation to victims and community, apology and forgiveness
 Yazzie, "Life Comes From It: Navajo Justice Concepts," Legal Education Series, Alternatives in Dispute Resolution and Traditional Peacemaking (Petaluma, CA: National Indian Justice Center, 1993) and Falk, International Jurisdiction: Horizontal and Vertical Conceptions of Legal Order. 32 Temple L. Q. 295 (1959). Back
 Travis, Introduction to Criminal Justice, 2d Ed. (Cincinnati: Anderson Publishing Co., 1995) and Neubauer, America's Courts and the Criminal Justice System, 2d Ed. (Monterey: Brooks/Cole Publishing Company, 1984). Back
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 Yazzie, supra n. 1. at 4. Back
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and Mediation the Indian Way: A Case Review of the Saddle Lake Tribal Justice System," paper presented at the Conference on
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 Melton, "Traditional and Contemporary Tribal Law Enforcement: A Comparative Analysis." Paper presented at the Western Social
Science Association, 31st Annual Conference in Albuquerque, New Mexico, (1989).
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United States." Forthcoming, St. Johns University Law Review. Back
 See, the establishment of the Court of Indian Offenses in 1883; the unilateral imposition of law and order codes in 1884;
passage of the Major Crimes Act, 18 U.S.C. §1153 (1885, Stipp. 1986); the Indian Country Crimes Act, 18 U.S.C. §1152 (1817);
the Assimilative Crimes Act, 30 Stat. 717 (1898); Public Law 83-280, Indians-Criminal Offenses and Civil Causes-State Jurisdiction,
18 U.S.C. § 1162, 25 U.S.C. §§ 1321-1326, 28 U.S.C. §1360. the Indian Civil Rights Act, 25 U.S.C. §1301 1303 (1968, Suppl.
1986); and Supreme Court decisions such as Oliphant v Suquamish Indian Tribe, 435 U.S. 191; and Duro v. Reina, et al., 110 S.Ct. 2953. Back
 Indian Civil Rights Act, id. at 18, imposes certain protections and limitations on tribal authority and as amended in 1986
limits criminal punishment to one year imprisonment and a $5,000 fine. Back
 Major Crimes Act, supra n. 8, at 18.Back
 Zuni, "Justice Based on Indigenous Concepts." Paper presented at the Indigenous Justice Conference(1992). Back
 Austin, "Incorporating Tribal Customs and Traditions into Tribal Court Decisions." Paper presented at the Federal Indian
Bar Association: Indian Law Conference in Albuquerque, New Mexico, (1992). Back
 Zuni, supra n. 11, at 25. Back
 Id. Back
 Melton, supra n. 6, at 16. Back
 Bluehouse and Zion. "Hozhooji Naaliannii: The Navajo Justice and Harmony Ceremony." 10 Mediation Q. 327 (1993). Back
 Canadian Institute for Conflict Resolution, "Report to the Council of Akwesasne Concerning a Peacemaking Process," in Ottawa,
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 Mohawk, Prologue, in Wallace, The White Roots of Peace (Philadelphia: University of Pennsylvania Press, 1946). Back
 "Victims Seeking Fairness, Not Revenge: Toward Restorative Justice," Federal Probation (September 1989). Van Ness, "Restorative Justice," Galaway and Hudson, eds. Criminal Justice, Restitution, and Reconciliation (Monsey, N.J.: Willow Tree Press, 1990). Back
 Bazemore and Umbreit, "Balanced and Restorative Justice: Program Summary." Office of Juvenile Justice and Delinquency Prevention,
Date Created: December 3, 2007