Volume 1, Number 4
|Table of Contents|
|Making the Cross-Cultural Case:|
Educating the Judge About Race, Religion, and Ethnicity
A woman walks into your office for a divorce consultation. You begin by asking her to describe her family and living situation, income, and marriage. Her story is not unusual: a six-year marriage; two young children; a house, two cars, and a middle-income marital estate. The woman stayed at home with her children for a few years while her husband provided their main source of income, but now she works part-time.
You probe further and ask where they got married. She tells you they were married on a reservation in Northern Wisconsin where they lived until early this year. Upon further questioning, the woman explains that she is a member of the Lac Du Flambeau Tribe of Chippewa Indians as are her children, but that her husband is not Native American. She describes herself as a "traditional Indian" who is very religious and devoted to her cultural heritage, which her husband rejects. She wants custody of her children so that she may raise them to embrace their tribal traditions and knows that her husband will not agree.
You decide to take the case, but realize there may be Native American cultural issues that will affect its outcome. After some cursory research, you find that not only does jurisdiction come into question, but that Native American cultural traditions may conflict with mainstream "American" norms built into the family law judicial system. It is your job to educate the judge as to tribal law as it affects jurisdiction and any relevant cultural heritage issues.
Cases that contain cultural issues, particularly those unfamiliar to mainstream courts, can be challenging for lawyers, judges, and clients. You may one day, for example, represent a Native American such as in the scenario above, an Arab, Chinese-American, or impoverished Appalachian client with whom you and the judge may not share traditions or cultural values. To represent your client fully, you must educate yourself, the judge, and your client on issues of law and culture that are germane to the case. In so doing, your role may shift from advocate to educator and back several times during the course of the case.
Depending on your client's heritage and the circumstances of the case, many tools are available to you in educating the court, such as written memorandum, treatises, and expert witnesses. However, the most important tool in your arsenal is you. Immerse yourself in your client's culture and heritage and any relevant laws. You must make yourself sufficiently knowledgeable on the subject of your client's heritage and the relevant law to present and maintain your client's case.
Where to begin
Your case is only as good as the quality of your resources. As a lawyer juggling a busy caseload and high service expectations, it becomes exceedingly important to narrow your focus to the best possible sources.
Legal sources, such as those found in the law library or on an Internet legal research site, are the most obvious and accessible places to begin. Look first to familiar sources, such as state and federal law digests, treatises, and journals, and then expand your scope as your knowledge grows.
Culturally relevant research information may be found in tribal court or international law digests, treatises, and journals. If you are unable to find relevant law there, ask for help from other lawyers or law groups specializing in the client's heritage. For example, several legal organizations around the country cater specifically to Native Americans, such as Michigan Indian Legal Services (814A S. Garfield Ave., Traverse City, MI 49686-34301; (800) 968-6877; www.mils.org).
Upon contacting their office, you will find that part of their work focuses on Michigan family law. You also may find that they have had family law cases from other states, such as Wisconsin (the state of your client's reservation). Or perhaps one of their lawyers could direct you to a helpful specialized legal resource.
Another way to find relevant case law is to locate rules in your jurisdiction that allow courts to rely on experts for matters that are not common knowledge. Then seek expert assistance from reliable legal or nonlegal sources with knowledge of your client's culture.
Why go through all this trouble to deal with what appears to be an uncomplicated issue? Because issues that you don't presently understand fully may deeply influence or in some instances turn the case for or against your client. For example, in the scenario above, the issue of jurisdiction will arise because your client and her husband were married and lived (with their children) on an Indian reservation for a significant part of their marriage. How crucial the question of jurisdiction is to your client's case will depend on the law of the jurisdiction for that particular Indian tribe as well as the law in your circuit.
Although your state may require only six-months' residency to attain jurisdiction over the marriage and children, the tribal court on the reservation may have conflicting long-arm jurisdiction. You also may find that the tribal laws concerning marriage and child custody are beneficial to your case. Conversely, as opposing counsel, you may find that your client will unexpectedly be hailed into tribal court. Therefore, knowing and finding the correct law on the subject of jurisdiction and possibly that of conflicts of law is essential to your case.
Your search, however, should not be limited to legal resources. Do not be fooled into thinking that because you cannot find case law relevant to the cultural issues, important resources, such as anthropological, social, or psychological studies, do not exist. Many successful attorneys have made judges more comfortable looking beyond traditional case law by showing directly or by implication that courts can and do rely on nonlegal professional journals and studies in resolving family law matters. In particular, public or university libraries and educational facilities may have excellent materials. Likewise, cultural community members and/or organizations may provide additional invaluable tools.
The cultural group
The cultural issues in your client's case may not be strictly legal or may be a combination of legal and cultural. Either way, it is important to educate yourself with sources that come directly from the cultural group. This may be a departure from your traditional research methods. For many years, cultures in and outside the United States were studied and recorded, primarily by Caucasian men with an Anglo Saxon education. Although their many contributions cannot be deem-phasized, their research and conclusions cannot replace the "inside" information that comes directly from the cultural group. As almost any member of a cultural group will tell you, no one knows them like they know themselves.
Many bar associations are composed of lawyers who are members of or work with specific cultural groups. These associations may be part of a larger organization, such as the American Bar Association (Commission on Racial & Ethnic Diversity in the Profession or Council on Racial & Ethnic Justice, 321 N. Clark St., Chicago, IL 60610; (312) 988-5000; www.abanet.org/minorities) or the Hispanic National Bar Association (815 Connecticut Ave., N.W., Ste. 500, Washington, DC 20006; (202) 223-4777; www.hnba.com) or may be independent and state-specific, such as the Illinois Native American Bar Association (P.O. Box 2319, Chicago, IL 60690-2319; (847) 622-4192). For complete listings of bar associations, contact the American Bar Association or do an Internet search. Once you find the bar association, contact its leaders or spokespersons and query them on the subject of your research. Although they may be unable to answer your inquiries directly, they may put you in contact with a member or other helpful resource.
In addition to bar associations, most states have other organizations that represent or cater to particular cultures. You can do an Internet or telephone listing search to find community centers or social service organizations with cultural affiliations, such as the American Indian Center in Chicago (1630 W. Wilson Ave., Chicago, IL 60640; (773) 275-5871; www.aic-chicago.org) or the Chinese Cultural Center in San Francisco (750 Kearney St., 3rd Floor, San Francisco, CA 94108-1809; (415) 986-1822; www.c-c-c.org). However, don't expect to call one of these organizations and get the answers to your legal dilemma. What you can expect is a rich source of cultural history and information about current norms and practices. This may require you to interview several community members to get a full view of the culture and its nuances.
You might call, for instance, the American Indian Center and speak to its director regarding your questions on marriage practices for the Lac Du Flambeau Tribe in Wisconsin. Because it is traditional for Native Americans to be taught by elders in their community, he or she may direct you to one of these valuable sources. You also may be referred to several other community members who are Lac Du Flambeau tribal members or to the tribe itself in Wisconsin.
If you decide to take this step, please remember to inquire about how best to interview or speak with community members in a respectful manner relative to their traditions. For example, if you need to interview an immigrated Arab woman and you are a male lawyer, it is important to know that you may not interview her without speaking first to her husband. Although no law in the United States forbids such contact, Arab cultural practices do. Although other sources of information may be available, you will have wasted your client's time and money because you were insensitive to Arab custom.
If you cannot find resources regarding your client's cultural heritage using the previous suggestions, seek the recordings of historians, anthropologists, and/or other scholars who have contributed to a study of the cultural group. This option might seem easy because you need only search a public or university library for books, periodicals, or texts on the culture. However, take into account that many of the traditional scholarly works may not be wholly accurate portrayals of a culture. Rather, they may be only an outsider's perspective. Although such resources may not be the best choice for legal purposes, they may be a helpful starting point. Read a book about the culture for a cursory overview, and then follow up with other culturally appropriate sources.
Share your knowledge
Now that you've completed your studies, you are ready to share your knowledge with the judge. First, tell the court about the cultural issues in the case. Do so in a formal or informal way, whichever best suits the cultural issues, the law, your case, and the judge.
Many issues can be brought before a judge in an informal way, depending on local law. You may inform the judge verbally that your client is of a certain cultural heritage, which requires special consideration during the case. Many judges will ask what considerations would be necessary and will direct you accordingly. Others may not be familiar with the issues and may ask for a formal education on the subject, such as a memorandum. Still others may respond that no special considerations will be given, whereupon you must be prepared to educate the judge further or make a formal motion.
In all cases, you will need a working knowledge of the law surrounding the cultural issue before bringing the issue before the judge. Most judges will be receptive to preparedness at the outset and may allow you to proceed without further formal motions. Please note, however, that an informal introduction may not work when the law requires a written motion or otherwise.
A settlement conference is another informal way to introduce cultural issues. You may work quickly with your client and opposing counsel to find issues that can be stipulated to and flesh out aspects in controversy, including issues of cultural significance. Then, sit down in conference with the judge, giving an informal, easy-to-understand overview and discussing issues in controversy. If you choose this method, be sure to bring copies of the legal and cultural sources for both the judge and opposing counsel.
Use a similar process--mediation--to bring cultural issues into the open by filing a request for mediation. During mediation, educate the mediator with optimal resources so as to obtain a beneficial result for your client. If the mediation doesn't end with a settlement agreement, you will, at the very least, have "practiced" your cultural education on the mediator before presenting it to the judge.
Do not be surprised if the judge asks for a written memorandum of law on your client's culture or the law as it affects your case. This is an excellent opportunity to educate the judge in a manner that is beneficial to your client. Keep your memorandum concise and to the point. Carefully scrutinize it to avoid giving cultural misinformation, a common mistake. Finally, provide the judge with a complete listing of your resources in case he or she opts to do further study.
Some cultural issues are best brought by written motion. For example, the issue of jurisdiction in the scenario above requires a written motion for lack of jurisdiction to proceed. Similarly, the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.A. § 1901 - 1963 , P.L. 95-608, 92 Stat. 3069 (1978) , which occasionally appears in custody, abuse/neglect, and/or adoption cases, requires the court to file written documentation with a child or parent's Indian tribe before the case can proceed. However, the type and content of the written motion depends on the issue, the requirements of law, and the particularities of your client's culture. You might, for instance, find that bringing a written motion for mediation on behalf of your client would be better if she was Navajo, as the tribe employs a mediation program called the Peacemaker Court, which is more progressive and successful than many nontribal programs. In so doing, you would research and write a motion that "fits" within the framework of a Navajo Peacemaker Court (Office of the Chief Justice, P.O. Box 520, Window Rock, AZ 86515; (520) 871-6385; see www.navajo.org).
On the other hand, your client might be from a tribe that doesn't sanction divorce and, therefore, doesn't have a divorce mediation program. You would then consider alternatives to mediation or, if the tribe has jurisdiction over the case, fit your motions within the framework of the tribe's rules and regulations.
Other cultural issues may be presented by written motion at your own judgment. For example, in divorce/custody cases, issues of cultural background or heritage, parental homeland, and/or sexual preference can be introduced under most state best-interest-of-the-child standards.
In Jones v. Jones, 542 N.W.2d 119 (S.D. 1996) , the trial court awarded primary physical custody to the father, who was a member of the Sisseton-Wahpeton Dakota Nation, under the state's best-interest-of-the-child standard. The court reasoned that because the children were part Native American and had Native American features, the father would be better able to deal with any discrimination that might occur and the children's subsequent needs.
On appeal, the South Dakota Supreme Court upheld the trial court's decision, finding that it was proper for the court, when determining the best interests of a child to "consider the matter of race as it relates to a child's ethnic heritage and which parent is more prepared to expose the child to it." Id. at 123.
As in the case above, your client might benefit from consideration of the effect of discrimination on the children. Therefore, you could include this as a point of argument in your motion for custody, along with other issues, such as exposure to cultural heritage, the unwillingness of one parent to honor the child's heritage, etc.
Proving the case
In addition to making formal or informal motions, you will need to decide whether to provide evidence to support and/or prove up your client's case. This depends on the content of your case and requirements of law. In considering how best to provide evidence, remember this principle: evidence should give your client a voice regarding his or her cultural heritage that will persuade the judge to decide in your favor.
Occasionally, tangible evidence will be necessary, such as written materials (for example, a tribal membership card or ID), cultural items, photos, etc. Although these items may not seem important, they may give the judge a firsthand view into the culture. For example, in ICWA cases, a child's Indian heritage may not come into question if documentation is not immediately available. For some judges, a child might not look or "seem" Native American, until a photo showing him or her dressed in ceremonial regalia or participating in other cultural activities is produced in court. Suddenly, the issue of the child's cultural heritage becomes more concrete and important.
A useful way to give your client a voice regarding his or her cultural heritage is to provide a voice for the judge to hear. Oral testimony from a good witness gives valuable "hands-on" or "inside" information for the judge's consideration. Many kinds of witnesses may be called in a family law case. The trick is to narrow your scope to those witnesses who are most relevant to your client's heritage as well as plausible and persuasive.
The cultural issues that arise in civil cases often are specific or unique enough to point you toward the kind of witness you'll need. A good example is in termination-of-parental-rights cases where the child is of Native American heritage. The Indian Child Welfare Act requires a qualified expert witness to testify in the case. (Indian Child Welfare Act of 1978, 25 U.S.C.A. § 1912(f) ). The guidelines set forth by the BIA for ICWA further specify that the expert witness must be (a) a member of the child's tribe or (b) an expert who has worked with the tribe and has knowledge of social and cultural standards as well as child-rearing practices and so on. ("Bureau of Indian Affairs Guidelines for State Courts: Indian Custody Proceedings," Federal Register, Vol. 44, No. 70, Monday, April 23, 1979.)
*30 This example is, perhaps, more clear-cut than one might find in other cases involving cultural issues due to requirements of law. But finding and using a cultural expert witness needn't be difficult. Your research into the cultural heritage of your client will likely lead you to a person qualified to testify. If not, search for an expert witness in a fashion similar to that described above: use your legal resources and then additional resources within your client's cultural group.
You may find that your client or witness doesn't speak English as a first language and/or does not speak or read English fluently enough to understand court proceedings. A language barrier often makes people feel intimidated by and/or distrustful of the court system, particularly in adversarial proceedings such as in family law.
The American legal system relies heavily on the spoken word, and lawyers often use their legal training to argue detailed distinctions between the meanings of words and phrases or the intent behind the use of a word.
Cultural Consideration in Domestic Violence Cases, A National Judges Benchbook, § 6.12, pp. 6-8 to 6-9.
Where cultural issues are a consideration in family law cases, provide your client and/or witnesses with a well-trained and experienced interpreter and/or translator.
Having an interpreter who truly speaks the same language and dialect as the witness is crucial. In one case a Cuban battered woman tried to tell the judge that she had been "stabbed" with a knife. The interpreter, who was from Uruguay and spoke a different form of Spanish, said that she had been "scratched" with a knife.
When Bias Compounds: Insuring Equal Justice for Women of Color in the Courts (1998), prepared by the National Judicial Education Program to Promote Equality for Women and Men in the Courts (New York, N.Y.). See Unit 111, page 25.
It also is important that the interpreter/translator be sensitive to the type of case and prevent his or her personal feelings from becoming part of the interpretation/translation. Although some easily accessible people may appear to be great resources, avoid their use in family law cases if they may be biased. These people may include children, other family members, and/or friends of the parties or family.
Your case involving a client with a cultural background unfamiliar to you need not be intimidating. Instead, important educational tools, cultural resources, and expert witnesses are at your disposal. The case will challenge you and the court to learn about other laws or traditions that could provide a fascinating insight into the lives of a culture not your own.
Copyright © 2004 by American Bar Association; Holly Kuschell Haworth This article first appeared in the Family Advocate, Fall, 2004
Copr. (C) 2005 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.