By Gale Courey Toensing
The growing movement in the United States to ban the use of international law and Islam’s Sharia law in state courts sets a dangerous precedent for Indian country, spiritual leaders and legal authorities say.
In the past year, anti-Sharia laws have been passed or introduced in more than a dozen states—Oklahoma, Louisiana, Arizona and Tennessee are among the states that have passed bills restricting judges from consulting Sharia in their rulings, and Michigan is the most recent to introduce a similar bill.
The movement against Sharia (or Shariah) not only targets Muslim Americans and their First Amendment right to freedom of religion, but also threatens American Indian sovereignty, law and the government-to-government relationship between indigenous nations and state and federal governments, says Gabriel Galanda, a member of the Round Valley Indian Tribes and partner in the law firm Galanda Broadman of Seattle. “The various state laws being passed or proposed would quite literally prevent any state court judge from ever considering the laws of sovereign Indian nations, including tribal common law,” he says. “Anti-Sharia laws also fly in the face of the United States’s recent adoption of the [U.N. Declaration on the Rights of Indigenous Peoples], especially insofar as such laws could disallow state courts from ever considering the declaration and its import domestically.”
The controversy over Sharia—the broad body of Islamic religious law—bubbled over recently in New Jersey, when Republican Governor Chris Christie was scorched by conservatives for appointing a Muslim to the state Superior Court. Never one to stand down from a fight, Christie called a press conference to answer his critics. “The folks who criticize my appointment,” he said, “are ignorant. I nominated Sohail Mohammed because he’s a good lawyer and an outstanding human being.” Christie praised Mohammed as “an extraordinary American” who played an important role in building bridges between the Muslim American community and law-enforcement agencies post-9/11.
When asked if he was concerned that Mohammed would bring Sharia law to the bench, an exasperated Christie let loose: “Sharia law has nothing to do with this at all. It’s crazy! The guy’s an American citizen who’s been admitted to practice law in New Jersey, swearing an oath to uphold the laws of New Jersey, the Constitution of the state of New Jersey and the Constitution of the United States of America…. This Sharia law business is crap! It’s just crazy, and I’m tired of dealing with the crazies!”
“The crazies” Christie referenced, also known as Islamophobes, seem to be multiplying. The Internet abounds with fear-mongering, bigotry-spreading websites such as Creeping Sharia, Anti-Sharia and Atlas Shrugs, the latter site managed by anti-Islam activist Pamela Geller. The killing of Osama bin Laden in May has apparently not eased the minds of the many Americans who seem to see all Muslims as either real or aspiring terrorists. Republican celebrities Sarah Palin, Newt Gingrich and Michele Bachmann have all recently warned about the “threat” of Sharia law, even though many of the proponents of anti-Sharia law movement would be hard-pressed to explain what Sharia law is. Bachmann, for example, recently promised a “rejection of Sharia Islam [sic] and all other anti-woman, anti–human rights forms of totalitarian control”—a statement that reveals a total lack of knowledge about both Islam and its religious laws.
Sharia (which literally means “the way to the watering hole”) is Islam’s guide for how to live a moral life. Sharia deals with all aspects of daily life, such as family (marriage, divorce, custody, inheritance); finance, banking, and contracts (investing, forbidding the paying or charging of interest); social issues (dress, hygiene); religion; and acts which are almost universally viewed as crimes (theft, murder, rape). Because Islam does not separate church and state, Sharia is not just a legal system or a form of criminal justice, it is a code for living—similar to the Old Testament’s Ten Commandments, which are the moral basis of both Judaism and Christianity. Sharia law is not embodied in written statutes or policies, but rather is based on the Qur’an, the sayings and traditions of the prophet Muhammad, and the interpretations of legal scholars.
Sharia law, like Jewish law, most often comes into play in U.S. state courts in divorce and custody cases, or cases dealing with commercial or financial issues, but is always subject to compliance with state or federal law.
Banning any kind of religion or spiritual practice is a mistake, says Mohawk spiritual leader and Longhouse Chief Tom Porter, Bear Clan. “It’s a danger to everybody. This country is supposed to have been founded on the principle of people being allowed to practice any religion they want, so I don’t know how they can make a law against any religion,” he says.
The Haudenosaunee (or Iroquois) Confederacy—the Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora Indian nations—have a moral guide called the Code of Handsome Lake that is analogous in some ways to Sharia. Handsome Lake was an Iroquois prophet in the 18th and 19th centuries, and his code derived from a vision sent to the Iroquois people, Porter says. “The vision said that the white people from Europe who came here will use five things to control and manipulate and take over the Indian people, who had innocence like children; they hadn’t learned quite how to manipulate like the Europeans did.”
As is true with Islam, Christianity and Judaism, Iroquois people follow the Code of Handsome Lake to varying degrees. “Some people follow it and some people don’t,” says Kay Ionataiewas Olan, Mohawk, Wolf Clan, a storyteller and educator who has worked as Porter’s assistant. “Some people take from it what they feel is appropriate for their life and what their understanding is about how we’re supposed to live our lives and don’t necessarily accept everything in the code.”
Legislating against Sharia “opens the door” to similar actions against others, she says. “It’s setting a precedent and sending out a message
that it’s okay for one group to dictate how other people think and act. If there are people who think they can decide which freedoms can be allowed and which don’t have to be respected, then we don’t know who they’re going to disrespect next. It’s a little frightening—no, it’s very frightening—to think there’s a group that thinks this is okay.”
Last November voters in Oklahoma passed an amendment to the state Constitution banning courts from considering Sharia law—70 percent of the
voters supported it. Muneer Awad, Oklahoma executive director of the Council on American-Islamic Relations, immediately challenged the law, claiming it violated the First Amendment’s Establishment Clause, which forbids the government from giving preference to one religion over another. He said Muslims support the way U.S. secular courts now handle Sharia-related issues—by calling in Muslim scholars and imams as expert witnesses in such cases as wills and divorce decrees that specify the use of Sharia principles, but ruling on the legal disputes. “Sharia is not a code of laws; it’s more of a guidance,” Awad said. “I can have a [Sharia-compliant] will and still have the U.S. court handle it.”
A federal judge ruling in Awad’s case barred the implementation of the anti-Sharia and international law amendment. “This order addresses issues that go to the very foundation of our country, our Constitution and, particularly, the Bill of Rights,” Judge Vicki Miles-LaGrange wrote in her ruling. “Throughout the course of our country’s history, the will of the ‘majority’ has on occasion conflicted with the constitutional rights of individuals.”
Galanda heartily endorses Miles-LaGrange’s ruling and cautions that “anti-Sharia laws could set Indian law back decades, if not centuries. By that I mean that statutory and common-law notions of state-tribal full faith and credit and comity—in other words, honoring the decisions of each other’s courts—could be vitiated,” he says, explaining that under an anti-Sharia provision, state courts could no longer consider tribal laws that bear on issues ranging, for example, from whether a tribe waived its sovereign immunity for commercial dispute, to whether a tribe has codes or customs and traditions regarding what is in the best interest of an Indian child in an Indian Child Welfare Act dispute.
The National Native American Bar Association (NNABA), of which Galanda is an officer, is so concerned that the ban on Sharia and international law in state courts could lead to the prohibition of states’ consideration of tribal law that it passed a resolution in April opposing any such law. Amidst a flurry of “whereas” clauses, the resolution says, “NNABA hereby denounces any state law or effort that seeks or operates to outlaw a state court’s consideration of tribal law, or to forbid a state court from honoring the laws or decisions of other states in which courts consider tribal law.”
Galanda thinks even more needs to be done. “Indian country should stand in opposition to the anti-Sharia movement,” he says.
This anti-Sharia contagion is not being spread in our drinking water—there is an organized effort to instill fear of Islam and Sharia. A recent article in The New York Times by Pulitzer Prize–winning journalist Andrea Elliott called David Yerushalmi “the man behind the anti-Shariah movement.”
The controversy over the proposed Islamic center near Ground Zero in New York City, concerns about homegrown terrorism and the rise of the Tea Party have all contributed to the anti-Shaira movement, Elliott wrote, “but the campaign’s air of grassroots spontaneity, which has been carefully promoted by advocates, shrouds its more deliberate origins.” Elliott found that the anti-Sharia movement is the product of an orchestrated drive that began five years ago in New York’s Crown Heights neighborhood in Brooklyn, in the office of a little-known lawyer, Yerushalmi, “a 56-year-old Hasidic Jew with a history of controversial statements about race, immigration and Islam. Despite his lack of formal training in Islamic law, Mr. Yerushalmi has come to exercise a striking influence over American public discourse about Shariah. Working with a cadre of conservative public-policy institutes and former military and intelligence officials, Mr. Yerushalmi has written privately financed reports, filed lawsuits against the government and drafted the model legislation that recently swept through the country—all with the effect of casting Shariah as one of the greatest threats to American freedom since the cold war.”
In her research, Elliott found little evidence that Muslims were trying to take over America. “The more tangible effect of the movement, opponents say, is the spread of an alarmist message about Islam—the same kind of rhetoric that appears to have influenced Anders Behring Breivik, the suspect in the deadly dual attacks in Norway on July 22. The anti-Sharia campaign, they say, appears to be an end in itself, aimed at keeping Muslims on the margins of American life.”
Yerushalmi is the personal attorney of Geller, according to a report on LittleGreenFootballs.com, a blog that focuses on political issues. Geller often posts his writings on her popular blog. Recently, the two won a battle to put on New York City buses their misleading ads about the mosque and cultural center near the World Trade Center site. In what is clearly an irony deficiency, the two are using the First Amendment right to free speech to justify their demand—the same freedom they want to deny Muslim Americans.
Porter, who admits to not knowing much about Islam, warns against any religious discrimination. “The Creator did a good job and nobody needs to change us—it doesn’t matter if it’s Islam or Catholic or Jewish. As long as they respect other religions with the same equal respect then there’s no problem. The world is full of spiritual beliefs, just as the world is full of different flowers and colors and fragrances and that’s what makes it beautiful,” he says. In a prophecy of his own, he adds, “If they’re going to try to put everybody into one cylinder, it’s going to explode on them. There will continue to be bloodshed and war over and over because it’s not natural. The Creator didn’t make it that way. He made it diverse and full of color and full of beauty, and we’re one of those beauties.” SOURCE