"Native American Courts: Precedent for an Islamic Arbitral System," a Commentary by Issa Smith

February 14, 2007

Author: Issa Smith

Source: The American Muslim


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.