Native American Courts: Precedent for an Islamic arbitral system *

Issa Smith



In the United States today, there is a system of courts which is just outside of the federal and state court systems, known as the American Indian Tribal Courts. The Tribal Courts deal with criminal, civil and family court issues, and have their own lawyers, judges, and court officials. The Muslim Community can learn from the experience of the American Indian Tribal Court System as we attempt to implement Muslim Family Law in North America.

I will use the terms “Indian” or “American Indian” to describe the descendants of the people indigenous to North America, who are also sometimes referred to as “Native Americans.” The complex and confusing legal relationships between the United States and the American Indians begins with the U.S. Constitution which in Article 1, section 8 states: “The Congress shall have the power…to regulate Commerce with foreign nations, and among the several states, and with the Indian tribes.” Since the constitution was accepted and implemented in 1789, Indian tribes have been treated as “quasi-sovereign governments”, dependent on the United States for support and protection.

The treatment of American Indians during the last 200 years has been tragic and shameful. In 1789, it was estimated that 10 million Indians lived in the area now part of the United States. Today there are less than 2 million, half of whom live in urban areas and a third of whom live on reservations. There are currently about 300 Indian tribes that are recognized by the federal government, and dozens more that have state recognition. In addition, there are more than 200 recognized “native villages” in Alaska. Every year, there is legislation in Congress, which recognizes new tribes or takes away recognition of existing tribes.

Only about half of these tribes have tribal courts, and most of these were created during the past twenty years. Each court is independent of the others. The Bureau of Indian Affairs, which is part of the Department of Interior, has regulatory control over Indian Tribal Courts.

Jurisdiction

The question of jurisdiction has been a major and continuous problem for Indian Tribal Courts, and the source of conflict between state courts and tribal courts. Basically, tribal courts have jurisdiction over tribal members, or non-Indians. Jurisdiction generally does not extend beyond the border of the reservation. In a landmark decision in 1990, the U.S. Supreme Court held that an Indian tribe may not assert criminal jurisdiction over an Indian who is not one of its members. The case, known as Dura vs. Reina, involved the killing of an Indian youth on the Salt River Pima-Maricopa Reservation in Arizona. The accused, Albert Duro, was an enrolled member of another tribe. The tribe prosecuted Duro for the misdemeanor crime of illegally firing a weapon, since federal law dictates that major crimes such as murder must be tried in state or federal courts. Duro was convicted, but appealed and sought dismissal of the case on the basis of his not being a tribal member. The Supreme Court justices, in a 7-2 decision, agreed. They reasoned that non-members or non-Indians should not be subject to an alien and potentially discriminatory tribunal. The decision also meant that non-member Indians are to be considered as non-Indians in tribal courts.

Family Courts

Since our concern is primarily with family law, let us examine some issues of family law in tribal courts. The same matters considered to be part of Muslim family law (marriage, divorce, support, custody, adoption, legitimacy, abuse etc.) are covered in tribal courts.

A major concern of Indian tribes used to be the large number of Indian youths from broken homes who were adopted into non-Indian families. Often a state court would assume jurisdiction and rule that the reservation environment was not in the best interest of the child. The Indian tribes strongly opposed this idea. Although they agreed that the environment of the reservation was harsh and poverty-stricken, they wanted the children to be raised by their extended families, as was the custom in Indian culture.

In 1978, the U.S. Congress passed the Indian Child Welfare Act, which radically changed the relationship between state courts and tribal courts. One result was that tribal courts had greater jurisdiction in the placement of adopted Indian children. Many tribal courts were created just to take advantage of the greater powers given then by the Indian Child Welfare Act.

Marriage is one of the most common issues faced by tribal courts. A marriage conducted by a tribal court is valid anywhere in the U.S. An Indian couple wishing to divorce, and who live off the reservation, have the option of going to the state courts in the same manner as non-Indians, or returning to the reservation for a divorce. The second option is usually much quicker and cheaper.

Which support institutions and organizations have arise to work with Indian tribal courts? As mentioned, tribal courts have their own lawyers, judges and court officials. The requirements for filling these posts are determined by the tribe. This means, for example, that to be a lawyer or judge in the tribal court you do not necessarily have to have a law degree, or even a college diploma. I have spoken to a chief judge of a tribal court who had only finished high school. She has been in her post for eight years and is highly respected by tribal members.

As a matter of fact, a degree from the average law school is of little use to someone wishing to practice law in a tribal court. Only two or three law schools offer courses in American Indian law. Many reservations have saved up and sent their most talented youth away to law school, only to find upon graduation that the new layers had to be completely re-oriented to tribal law. The situation is somewhat analogous to a Muslim law school graduate trying to practice Islamic family law. To assist those interested in working in tribal courts, the National Indian Justice Center was created in 1983. The center is an Indian-owned and operated non-profit organization based in California, and conducts training sessions around the country. It has also developed an Associate in Arts degree in Indian Justice at the New College of California in San Francisco. The center evaluates tribal courts and has developed a voluntary certification program for court officials. It also publishes a newsletter and monographs.

The American Indian Law Center in Albuquerque, NM, provides similar servics, with an emphasis on legal research. The Institute for the Development of Indian Law is based at Oklahoma City University’s law school. It provides courses in Indian Law as part of a law degree. There are numerous professional organizations for those in the field of Indian Law. The National American Indian Court Judges Association has several regional affiliates. The American Indian Bar Association represents many of the over 700 Indian lawyers. The American Indian Law Students Association has chapters on many of the larger law schools such as Harvard. The Native American Rights Fund is a civil rights organization based in Colorado which deal with Indian issues and has a board of directors composed of Indians from across the country, including native Hawaiians.

The American Indian Law Review is an academic journal devoted to the study of tribal courts. There are many non-Indian groups interested in tribal courts as well. Interfaith Impact, a Washington based coalition of more than 30 religious advocacy groups including the American Muslim Council, has a task force on Native American civil rights which monitors tribal court legislation. National organizations such as the American Bar Association and the National Child Support Enforcement Association have hosted educational conferences on tribal court issues.

Numerous local and regional social service organizations have been created to address problems of American Indians and work with tribal courts. In short, a vast network of support organizations has been developed which strengthens the tribal court apparatus.

Although the Muslim community in North America is vastly different from the Indian community, I feel that in developing a plan for the implementation of Muslim family law, we can in some ways imitate the paradigm of the tribal court system and its supporting network. In particular, I recommend that as a first step, supporting organizations dealing with Islamic family law be established immediately. A professional association of Muslims in the law field (of whatever specialty) is a must. A law school students’ support group should be formed, and Muslim youth should be encouraged to enter this field.

A second step would be to establish institutes in the U.S. which can supplement legal education with courses in Islamic family law. At the same time, pressure should be put on law schools to include courses in Shariah taught by Muslims. An idea suggested in several quarters and being developed by the American Muslim Council, is the

moot court

where students and legal experts can act out Muslim family court scenarios.

There is a serious lack of Muslim social service agencies. Muslim Family Services in Brooklyn, New York is one of the oldest and best-known—an example to be emulated elsewhere. These organizations will have to be in place when we start asking for control of our family court issues.

The process of implementing Muslim family law will not be accomplished overnight. Changes of their type take place very slowly in American society, and our community is far from being prepared for this tak. I commend the continental council of Masajid for organizing this conference, and bringing together so many workers and thinkers. I pray to Allah the real decisions are made here that can be implemented by those ready to work. However, I strongly urge that consideration be given to political realities and the sensitivities of the American public. Such a radical change in American law—allowing Muslims to take control over their family law issues - must be initiated from the indigenous Muslim community here in the United States. To have it seem that this initiative is originating from overseas or from organizations financed overseas, would create a very negative impression that would likely destroy this effort.

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* Originally published in the print edition of The American Muslim April-June Spring 1993

updated notes

The pursuit of justice and Jewish law http://www.yasharbooks.com/Justice.html

Beth Din of America (Jewish law court) http://www.bethdin.org/ and [2]

Jewish Religious law in America http://www.jlaw.com/Recent/rabbiscantbesued.html

Jewish issues and secular law http://www.jlaw.com/Articles/getaus.html

Canon Law Society of America http://www.clsa.org/content/

Finding the Law: Islamic Sharia Law http://www.llrx.com/features/islamiclaw.htm