Some legal concepts are logical partners: Law and order. Crime and punishment. Informed and consent. But in American courts—which tend to be adversarial and hierarchical spaces—resolution and harmony rarely go together.

Must it always be that way?

No, say advocates for peacemaking, an ancient form of dispute resolution that Native Americans started practicing before the United States existed. Peacemaking has been taught at Stanford for many years, and it’s gaining traction in tribal and other courts—thanks in part to an SLS alumnus and a third-year law student who have partnered to promote its benefits.

Proponents say peacemaking is particularly useful for conflicts involving child welfare, juvenile offenders, and probate, but it also can help resolve a much wider array of disputes. Understanding peacemaking, says Brett Lee Shelton, JD ’96, demands a shift in worldview. “The values in the adversarial system revolve around rights, and rights are granted by sovereigns and enforced by hierarchies,” he says. “Rights are not what’s at stake in peacemaking. It’s more about relationships, about respect, about responsibility, and about reciprocity.”

In spring 2024, Shelton and Carson Smith, JD ’25 (BA ’19), convened a dozen Stanford University students to learn peacemaking in a course offered by the Native American Studies Department. The approach involves gathering people who are in conflict with one another, as well as other relevant parties from the family and community. They make a circle, and participants agree to try to solve an immediate conflict and also collaborate to achieve harmony going forward. There is a facilitator, but no authority figure, and everyone has the right to speak and to express concerns. If a session breaks down, the facilitator may call for a pause and then a reconvening.

In Indigenous Peacemaking: A Framework for Learning and Practice at Stanford, students role-play being circle members, acting out complex roles, such as the concerned grandmother of a domestic abuser or the angry sibling of an estranged son who returns home to collect an inheritance. Jade Araujo (BA ’24) is Tlingit and Koyukon Athabascan from Alaska and Aquinnah Wampanoag from Massachusetts; she took the spring course at Stanford and is now a first-year student at Harvard Law School. “I believe peacemaking should be a required course for all law students,” she says. “It is actually central to understanding the shortcomings of the adversarial system,” such as inequalities, biases, and high rates of recidivism. “State court systems should use peacemaking as a model for reform,” she adds.

Practice of Peacemaking

Caelin Marum (BA ’21, MA ’22) is Mandan and Hidatsa, as well as Woodland Cree, and she worked with Smith and Shelton to facilitate peacemaking classes. “I wavered about going to law school because I wasn’t sure there was a way to practice that feels authentic and speaks to my community,” she says. Today Marum is a second-year student at UCLA School of Law and hopes eventually to use peacemaking principles to help tribes develop laws in the health care space.

Shelton is staff attorney for the Native American Rights Fund (NARF). He is Oglala Lakota from South Dakota, and he runs the Indigenous Peacemaking Initiative and works with many of the nation’s 574 tribes to introduce or build tribal peacemaking practices on reservations. His journey to peacemaking began at SLS when he learned about the practice in a Native American common law class taught by a now-retired Navajo Nation Supreme Court justice, Raymond D. Austin.

Shelton was drawn to the approach immediately. But he didn’t fully appreciate its power until his first job on his home reservation providing counsel for survivors of domestic violence. That also meant handling divorces, child custody disputes, and protection orders. “My job, as defined to me, was basically to get what my client wanted,” he says.

“Rights are not what’s at stake in peacemaking. It’s more about relationships, about respect, about responsibility, and about reciprocity.”

Brett Lee Shelton, JD ’96

Sometimes what a client wanted was to sever connections to an abusive or negligent parent and the family—which presented a challenge because, in Lakota tradition, a child has the right to know both parents and both parents’ families. “I felt uneasy that I was going against that,” Shelton says.

As the years passed, he became convinced that peacemaking offered a better path for everyone, especially children. Instead of simply banning all contact, the circle might inspire relatives to help a father with anger issues get treatment, or they might create a schedule of supervised visits with the child. “People need to continue to live in community,” says Shelton. “So, to fully arm them and fight as vigorously as possible isn’t really what we need. We need to help them work through the issues in a way that’s going to be long-lasting and encourage healing and better behavior.”

Student as Teacher

Carson Smith, a member of the Choctaw Nation of Oklahoma, says she grew up observing the power of peacemaking in her own family. As a Stanford undergrad, she mediated disputes at the Native American Cultural Center and gained broader attention when she worked with Native American students to communicate their frustrations to university leaders over campus landmarks honoring Father Junipero Serra, and led peacemaking to create a resolution (three landmarks were later renamed). Smith met Shelton in 2017 when he came to SLS to help teach a peacemaking section for an undergraduate class, Federal Indian Law. Smith went on to earn a master’s degree studying dispute resolution at Oxford and returned to Stanford as the university’s first (and so far only) conflict resolution fellow before starting at Stanford Law. Smith currently serves on Shelton’s advisory panel at NARF.

Smith and Shelton have invited Michigan State Court Judge Tim Connors, who is among the most vocal advocates of peacemaking within the traditional legal system, to speak to students. For 15 years, Connors has given some parties in his court the option of using peacemaking to resolve disputes of many kinds, from conflicts over compliance with the Indian Child Welfare Act, to resolving damages in wrongful death cases. He explains, “I’ll say, okay, I can make this decision for you. Here’s what the law and the factors are. But I’m a stranger to you. There’s no way I can come up with a decision that would adequately meet your needs.”

He’s been pleased that the circle often comes up with a just outcome that supports both parties. Even if peacemaking doesn’t resolve a dispute quickly, Connors has found that the process tends to shift the parties’ focus away from retribution or punishment to issues that are most important, such as a child’s welfare. He and his wife teach peacemaking at the University of Michigan and other law schools.

“Students are used to thinking about protecting rights and being skeptical of court involvement beyond what’s strictly necessary because they worry about rights abuses. These kinds of courts challenge that premise.”

Professor Elizabeth Hidalgo Reese

Community Grounded

Elizabeth Hidalgo Reese, SLS assistant professor and a member of Nambé Pueblo, says interest in alternative, more community-grounded ways of resolving legal disputes is growing. She introduces more holistic court processes—like peacemaking—to students in her Tribal Law and Federal Indian Law classes. She notes that more holistic approaches that look at all aspects of parties’ lives and include more of a community in the healing process sound idealistic to her students at first, but then they are quickly taken aback by what these kinds of approaches require of their participants and communities. “Students are used to thinking about protecting rights and being skeptical of court involvement beyond what’s strictly necessary because they worry about rights abuses,” says Reese. “These kinds of courts challenge that premise. For example, defendants struggling with addiction have to submit to far more supervision and surveillance than they would otherwise and work with community members to find jobs where their bosses are aware of and supportive of their recovery. We are talking about courts and dispute resolution systems with fewer boundaries. That requires a lot of trust in that justice system to not abuse that power.”

Shelton and Smith agree that peacemaking is not always appealing to participants—or appropriate. They say they occasionally have had students who prefer adversarial negotiation, for example. Smith recalls a group of business school students who felt frustrated by the process’ slow pace and minimal structure, and she and Shelton both agree that no one—especially victims of violence—should be coerced into a peacemaking circle as the interpersonal dynamics can be intense. Also, in situations such as Judge Connors’ court, an offender can refuse to compromise in peacemaking and then the matter reverts back to a judge for a ruling.

Sunshine Sykes, JD ’01 (BA ’97), California’s first Native American federal judge who serves in the U.S. District Court for the Central District of California, calls peacemaking a “horizontal system” of justice because participants are treated equally, and its goal is neither punishment nor reward, but harmony. Sykes, who is a member of the Navajo Nation, says she believes peacemaking and other forms of restorative justice that both seek to recognize root causes of behavior and support offenders to chart a more harmonious and balanced life for themselves can be powerful. “There are situations,” she says, “where that has proved to be more effective.” SL