For decades, the obelisk that stood at the center of the Santa Fe Plaza (located on ancestral lands of Tewa Pueblos), has been the subject of considerable debate and dispute. Even now, months after the obelisk was toppled by more than 50 protesters on Indigenous Peoples Day on Oct. 12, and after the city of Santa Fe’s failure to remove the obelisk despite a June 2020 proclamation signaling a commitment to do so, the subject of how to resolve the cases of those few protesters charged in connection to this case remains a deeply divisive issue.
While many in the Santa Fe community have celebrated the recent news that these cases, political and nonviolent in nature, are being resolved via an alternative conflict-resolution process that values community and human relationships over property, it has also elicited heated critique from others, displaying an overall lack of understanding of the process.
As defense counsel on these cases, we herein seek to shed light on the context for and process by which the parties arrived at this Pre-prosecution Diversion Restorative Justice Agreement and what that process will require moving forward.
This past summer, in the wake of civil unrest due to racially motivated police violence throughout the country and the subsequent protest and removal of statues representing the Confederacy, slavery or segregation in America, there was also a call for the removal of statues celebrating colonialism and violence against Indigenous people. In Santa Fe, concerned parties including Indigenous organizations, local activists, residents and others, made decentralized, ongoing calls for the removal of certain monuments, including the obelisk.
The calls for removal of the Santa Fe obelisk were not new. Erected in 1867-68 as a tribute to Union soldiers and to the “heroes” who died in battles with “savage Indians,” the monument’s use of the derogatory term “savage” in reference to Native Americans was long perceived as an affront to Indigenous people of the region. In 1973, after an unidentified individual chiseled the word out of the monument, the City Council voted unanimously to remove the obelisk, but when the decision meant loss of federal funding, the City Council rescinded its vote.
On June 18, 2020, Mayor Alan Webber responded to calls for the monuments to be removed and signed an emergency proclamation titled “Civil Unrest from Institutional Racism” stating that Santa Fe has a long and complex history that includes “trauma, tragedy, and sorrow,” which was recognized by leadership from the Caballeros de Vargas, the All Pueblo Council of Governors, the city, the Fiesta Council and the Archdiocese of Santa Fe in an earlier proclamation dated Sept. 7, 2018. The final toppling of the obelisk was the culmination of decades of frustration and varied attempts at removal. Contrary to popular perception, the defendants charged in this case — with few exceptions — are longtime residents of Santa Fe. As such, as community members and in light of the complex history that culminated in the toppling of the monument, this Pre-prosecution Diversion Restorative Justice Program is consistent with the direction of the community toward healing and reconciliation.
Pre-prosecution diversion is specifically contemplated by the state of New Mexico for nonviolent offenses such as these, and requires full participation in and completion of the program before charges can be dismissed. In this case, because of the complex historical and political nature of the case, the parties met on several occasions to outline the process that would best incorporate principles of restorative justice into the existing pre-prosecution diversion framework.
The process will be facilitated by Common Ground Mediation Services, with which the state has contracted to provide mediation services in many cases, and will bring together those who felt harmed by the loss of the obelisk with those who felt the monument was harmful and emblematic of a longstanding, traumatic history. The process will explore the nuances and complexities of the impact on the greater community, reflect on the history and shared values, and generate ideas about how to repair the harm and begin to heal the historical trauma experienced by the community. While the DA’s office has provided seed money for an initial intake process, defendants must cover all remaining costs and expenses and fund the program through completion.
More and more, the people of cities around the country and the world are decrying the broken, punitive approach of the criminal justice system. The criminal justice system overcriminalizes and punishes even nonviolent felonies, but the system is not set up to allow for transformative change. Applying principles of restorative justice is not an easy process; it requires those who participate in such a process to be open-minded, to express thoughts and emotions, to be willing to set aside longstanding beliefs and engage in dialogue with others with deeply entrenched positions. While some would argue that restorative justice cannot be achieved within the confines of a punitive justice system, we must start somewhere. This process is one where we begin to reimagine conflict resolution and engender a mechanism that values human rights, addresses historical and cultural trauma, and values human relationship and community over inanimate property.
“Monument texts reflect the character of the times in which they are written and the temper of those who wrote them. … Attitudes change and prejudices hopefully dissolve,” are the closing words on the brass plaque near where the obelisk stood. It is time to set aside long-standing prejudices and work toward community healing. Santa Fe has taken the opportunity to embrace a time-tested model of justice and conflict resolution that is increasingly being used as a means for communities resolving disputes in a way that benefits the entire communities.