INACCESSIBLE JUSTICE: HOW A COLONIAL LEGACY MAKES INDIGENOUS WOMEN INVISIBLE UNDER THE VIOLENCE AGAINST WOMEN ACT
By
Yannita Vergonet
S2228629
Master Thesis North American Studies Supervised by Dr. Martinez
LAX999M20 20 ECTS 31 January 2021
14225 words
I declare that this thesis is my own work except where indicated otherwise with proper use of quotes and references.
Contents
LIST OF ABBREVIATIONS 2
INTRODUCTION 6
CHAPTER 1: INVISIBLE: THE LEGACY OF FORTY-FIVE YEARS OF
ANTI-VIOLENCE ADVOCACY 14
CHAPTER 2: NOBODY COUNTS: RESTRICTED ACCESS AND
COMPROMISED PROTECTION FOR INDIGENOUS WOMEN 31
CONCLUSION 50
NOTES 54
WORKS CITED 55
List of Abbreviations CJIS Criminal Justice Information System
CRS (United States) Congressional Research Service
CSA CJIS Systems Agency
DOJ (United States) Department of Justice
FBI (United States) Federal Bureau of Investigations
IHS Indian Health Service
ICRA Indian Civil Rights Act of 1968 (25 U.S.C. §1301-1304) ILOC Indian Law and Order Commission
MCA Major Crimes Act of 1885 (18 U.S.C. §1153) NCAI National Congress of American Indians NCIC National Crime Information Center
NIBRS National Incident Based Reporting System OCIO Office of the Chief Information Officer PACW President's Advisory Committee for Women PL-280 Public Law 83-280 (1953)
SAE Sexual Abuse Examination SANE Sexual Assault Nurse Examiner SART Sexual Assault Response Team
SDVCJ Special Domestic Violence Criminal Jurisdiction
SRS Summary Reporting System
TAP Tribal Access Program UCR Uniform Crime Reporting
USCCR United States Commission on Civil Rights
VAWA Violence Against Women Act (Public Law 103-322 (1994)), and reauthorizations (Pub. L. 106–386 (2000); Pub. L. 109–162 (2005);
Pub. L. 113-4 (2013))
Fig. 1. Outdoor shot of the REDdress art installation on the grounds of the National Museum of the American Indian, Washington, D.C. Picture by Katherine Fogden; “The REDdress Project”; Americanindian.si; Smithsonian Institution; n.d.; Web; 16 Apr. 2019.
INTRODUCTION
Within walking distance of the legislative heart of the United States, an art project demands recognition for Indigenous women who U.S. legislators fail to protect from assault, abuse, and, in disproportionally high rates, murder. During U.S. Women’s History Month of 2019, an installation of thirty-five red dresses colored the grounds surrounding the National Museum of the American Indian in the nation’s capital. The timing and the placement of the exhibition critically reflect on the current socio-political climate in which a myriad of legislative exclusions jeopardize the safety of Indigenous women in the United States. A month prior to the exhibition, the Violence Against Women Act, the bipartisan landmark legislation designed to protect women from gendered violence, indefinitely expired. Now, Congress has left Native nations without forthcoming legal resolutions for this public safety crisis.
The dresses embody evidence of presence as their strategic placement makes them perceptible. The crimson dresses hang collectively on the grounds of the museum, yet they are placed separately as they hang on individual racks. The dresses vary in size and design, and do not bear any identification of the Indigenous women they once belonged to. The random positioning of the dresses symbolizes the geographic spread of individual cases of violence against Native Women, who have been targeted in cities, on tribal lands, and, in rural areas across the United States and Canada. And here, in the shadow of the Capitol building, where the legal space for resolutions to combat violence against Native women seems restricted, the faceless silhouettes remind visitors that present and future generations of Indigenous women are still at risk as long as this crisis remains unaddressed.
The installation offers a space for dialogue as much as contemplation. Canadian artist Jamie Black (Métis) brought the installation of her REDdress Project to Washington, after it
had been on display for almost a decade in her home-country, to spread awareness on the topic of missing and murdered Aboriginal women and girls. The dresses, which she has received over the years through donations from family members and friends of Indigenous victims, symbolize the disappeared and honor the women who originally owned them. As Black points out, the exhibition is a visual response to the “critical national issue” that preys upon Native women on both sides of the border (Black). Whereas mainstream media often fail to disclose the depth and prevalence of this gendered violence, Black observes that among Indigenous women “we all know someone who has experienced violence in her life, women who feel powerless and who don’t have a voice” (Bolen 32). The red dresses break down barriers, as they wordlessly evoke the audience to “notice there is a presence in the absence” according to Black (Bolen 32). Visibility is a fundamental concern which hinders safety for Native women in the United States.
Outside Native nations and Indigenous urban communities, a rhetoric of silence, absence, and invisibility dominates current political debate and the public manifestation of violence against Indigenous women. Federal statistics, recently presented by the United States Commission on Civil Rights (USCCR) in their December 2018 report Broken Promises, indicate that “Native American women are ten times more likely to be murdered and four times more likely to be sexually assaulted than the national average” (31). In addition, the commission notes that enrolled female tribal citizens “experienced some of the highest rates of domestic abuse and sexual violence in the U.S. compared to any other demographic” (45). Tribal advocates and experts problematize these findings, as they argue that statistics on violence against Native women accumulated by federal agencies “represent at best a very low estimate” (Deer 5). Even though the USCCR expressed its awareness of the ongoing shortfall in accurate data collection, the report did not refrain from framing Native Americans as the “invisible minority,” due to the sparsity of Native populations (Broken
Promises 18). In relation to the violence against Indigenous women movement, it is precisely this often-unquestioned language and practice that perpetuates the circulation of the
aforementioned labels.
Today, rhetorical exclusion and deficiencies in numbers and frequency define the general perception and the scope of violence against Native women in public fora. Here, invisibility functions as a marginalizing trope that obscures the diplomatic past and socio- historical nature of this violence. According to consultant to the National Indigenous Resource Center Jacqueline Agtuca (Cherokee) J.D., Indigenous advocates, grassroot
organizations, and tribal leaders unite in the effort to deconstruct “the acceptance of violence against tribal women today” (23). The degree of normalization in her words reflects the outcome of centuries of violence against Native nations and Indigenous peoples that has been allowed to continue without strong repercussions. Agtuca points out that violence against Indigenous women is essentially “an extension of colonialization,” as it is sustained by legislative barriers that find their origin in “federal laws and policies that have made Native women the most vulnerable population of women in the United States” (125). Nowadays this vulnerability expresses itself through a legislative maze, and a reality in which, according to Native legal expert Sarah Deer (Muscogee (Creek) Nation), Indigenous mothers tell their daughters “what to do when they are sexually assaulted, not if” (5). In addition, Abigail Echo-Hawk (Pawnee) and Annita Lucchesi (Southern Cheyenne), researchers with the Urban Indian Health Institute (UIHI), claim that violence against Indigenous women in the United States leads to a three-folded absence. Unaccountability for this violence and the polarity in the federal legislative climate, allow a Native victim to “disappear … in life, in the media, and in the data” (2). As citizens and authorities alike rely upon the articulation of information gathered and spread through these public and private channels, structural dismissal of
Indigenous cases leads to misconceptions, misunderstanding and invisibility. Hence, this
approach sustains a self-perpetuating system of chronic indifference towards violence against Native women.
While nationwide recognition for family violence, especially spousal abuse and gendered violence, has significantly grown since the late 1960s, it’s prominence in media and law are the result of grassroot activism, news coverage, and the bipartisan Violence Against Women Act (VAWA) of 1994. Family violence researchers Dr. Murray Straus and Richard Gelles point out that historically, “there were no statistics on wife beating cases known to the police or social services” until the 1980s (467). Likely, the facts that criminalization of domestic violence gradually emerged and varied per state at that time; the then available social services were predominantly privately-owned initiatives that were untracked by the government, support their observation. Straus and Gelles’ remark nonetheless testifies to a transition in public and political opinion on domestic violence. Reinforced by media outlets who addressed the “‘epidemic’ of wife-beating,” that eroded the “sacred” institution of the nuclear white family, awareness for gendered violence radically altered the stigmatization of spousal abuse as being a private and illicit affair (Straus and Gelles “Societal Change” 467).
In 1994, the Clinton administration was the first to enact the VAWA as part of the Omnibus Crime and Control Act, which universalized intimate partner violence as an offense in all states (Tiefenthaler et al 567). The VAWA has since been the primary federal reform vehicle for sexual assault, domestic, marital, and dating violence in the United States, that is until its latest reauthorization expired in February 2019.1
Since 2005 a Tribal Title, the Safety for Indian Women Title, has been added to the Violence Against Women Act. This section is vital for the protection of Indigenous women because it authorizes (selected and eligible) tribal law enforcement agencies to independently address domestic violence within their jurisdiction. The Tribal Title also recognizes the government to government relationship Native nations have with the federal government of
the United States. Political scientists David Wilkins and Heidi Kiiwetinepinesiik Stark (Turtle Mountain Ojibwe) point out that “sovereignty of tribes … is original and inherent power,” and that the alliances between Native nations and the federal government are political rather than racial: “they were separate sovereigns … with whom the United States wanted and needed to establish diplomatic ties” (38). Members of Native nations have U.S.
citizenship, while they are subjected to the customs and laws of their affiliated tribal government through tribal enrollment. This unique legal starting point impacts which law enforcement agency has jurisdiction in violence against Native women cases. Therefore, when the federal legislation drafts began, Native advocates collaboratively lobbied for
“language in those bills that protected the sovereignty of Indian Nations as well as tribal women” (Agtuca 16). Still, due to pre-existing federal laws, settlement acts, and political alliances, violence against Indigenous women cannot easily nor equally be remedied in all 574 federally recognized tribal nations.2
According to the latest revision of the National Congress of American Indians VAWA implementation chart of June 2019, twenty-five tribes have implemented VAWA, while seventeen more are exploring VAWA at the moment (“Implementation Chart” 1). This number has increased since 2015, when, after the provisional 3-year pilot period, eight tribes complied with the federal requirements to exercise Special Domestic Violence Criminal Jurisdiction (SDVCJ) within the boundaries of their lands. SDVCJ gives tribal law enforcement agencies concurrent jurisdiction with either state or federal law enforcement agencies to investigate and prosecute cases of domestic or dating violence on tribal lands.
Even though the VAWA has been designed to set national parameters to ban and respond to violence in the home, its reach in Indian Country stretches thin despite the Tribal Title.
In this thesis I argue that the Violence Against Women Act does not embody the immediate answer to bring a halt to a crisis that came out of centuries of legislative measures
that undermine the sovereignty of Indigenous nations and stigmatizations that justify the violation of the Indigenous female body and being. This thesis takes into account the depths of the current gaps in legislation and in data collection, which combined infringe on the safety of Indigenous women in the United States. This thesis builds upon work done by Native scholars, tribal legal experts, and Native American civil rights advocates who collectively seek to end violence against Indigenous women, because their voices, research, and theories expose the seemingly naturalized principles that have led to the acceptance of this violence. It is through the testimonials of Indigenous leaders and survivors before the press, anti-violence working groups, and before Congress, that honest insights into this disastrous practice come to light. The words of these anti-violence advocates mark disparities in legislative measures and accessibility to tools to enhance safety for Native people that vary from tribal nation to tribal nation. Moreover, I seek to demonstrate that their accounts
denounce that this violence and its victims are allowed to be regarded as invisible by any source and that this invisibility is a silencing label and equally a product of colonialism and American empire as is violence against Native women. Japanese American scholar and poet Mitsuye Yamada once wrote, “invisibility is not a natural state for anyone,” as a reminder that the perception of a people heavily depends on hegemonic dynamics, and that this perception is at its core “man-made” and thus (a product of conduct and) not natural, in no regard (40). This insight will be at the core of this thesis and will be explored in a historical, legal, and social context throughout the chapters.
The first chapter: “Invisible: The Legacy of Forty-five years Anti-violence Advocacy,” considers socio-political and cultural bias as leading factors for gendered violence against Indigenous women and lack of appropriate legislative language that meets the needs of Native nations. The chapter aims at contextualizing a policy of dismissal that clouded the active participation of Indigenous women in national domestic violence surveys
and anti-violence debates during the earliest stages of federal reform that led to the criminalization of domestic violence in the United States. Through these case studies, the chapter exposes the presence of nationally internalized mechanisms that thrive on the unaltered perpetuation of colonial ideologies regarding Native elimination, stereotypical imaginations of Indianness that undermine the bodily agency of Indigenous women, and universalized tropes concerning Eurocentric gender roles and Native custom in these debates and surveys.
The second chapter: “Nobody Counts: Restricted access and Compromised Protection for Indigenous Women,” evaluates the current disparity in crime data infrastructures
following the VAWA of 1994 and its reauthorizations. While the VAWA endorses increased cooperation between tribal, state, and federal agencies regarding crime data access and sharing, systemic exclusion of tribal authorities adds to the invisibility of Indigenous victims.
I argue that due to the preemptive legislative restrictions to criminal jurisdiction in Indian Country, the VAWA on its own cannot amend nor universalize one coherent route for Native authorities to register crimes, safeguard forensic evidence, or extract crime data information from federal and/ or state databases. The chapter discusses the Tribal Access Program (TAP), the SANE-SART Recourse Service program, and NIBRS as examples of deadlocked systems across the federal medical and legal aid spectrum that are supposed to create coherence in data storage and access, but fail in this regard.
By establishing in chapter one that inherent sociopolitical bias marginalized Indigenous women during the early discussions regarding the criminalization of domestic violence, and by demonstrating in chapter two that this historical bias has led to a legislative solution that prevents plenary involvement of tribal law enforcement agencies in battered Indigenous women cases on tribal lands, I seek to demonstrate that the Violence Against Women Act compromises universal attainable protection for Native American women.
Rather, VAWA sustains the marginalization of battered Indigenous women, while upholding inherent legislative restrictions to tribal sovereignty. Thereby congress limits the ability of tribal nations to independently address criminal conduct targeted at female enrolled members.
In the conclusion I demonstrate how these outlined limitations perpetuate a legislated vulnerability for Indigenous women, by discussing the reluctancy of congress to efficiently address these legislative barriers in modern federal Indian policies regarding this gendered violence.
CHAPTER 1: INVISIBLE: THE LEGACY OF FORTY-FIVE YEARS OF ANTI- VIOLENCE ADVOCACY
The testimony of an anonymous Indigenous domestic violence survivor from Minnesota reads:
When I was raped, I would include a description in a protection order. No one in the legal system ever said anything about it. Eventually, I stopped telling them. I was invisible to the legal system. Their protections were not for me. It didn’t matter if I called the police or if my neighbors called the police. If I had visible injuries, if he used weapons, or if I was raped, none of it mattered to them. I believe I was invisible to them because I am an Indian woman. The legal system wasn’t designed to protect me, or anyone like me. (Anonymous 109)
The writer discusses how the interplay of legal and social circumstances allowed for her repetitive victimization at the hands of her husband roughly between 1950 and 1980. In this small excerpt, the author discloses a series of violations to her body, namely assault, assault with weapons, and marital rape, from which she continuously sought protection through U.S.
law enforcement agencies and documents. However, as she points out herself, her violator could and would not be held accountable for these actions, because he had state and federal law on his side. Despite an active protection order against her spouse, local law enforcement officers would not intervene. Rather, they treated her whilst upholding a double standard;
telling her: “You can’t testify against your husband” (Anonymous 108). Her abuser enjoyed the protections of laws that were designed without articulated space for the safeguarding of (married) Indigenous women. Even though her story fits in a greater legislative scheme that tolerated marital violence at the time, she insists that her “invisibility to the legal system”
specifically occurred at the intersection of her race and gender (Anonymous 109). Being a Native American woman put her into a legislative void in an era in which violence against women gradually emerged as a visible societal problem, but in which typecasting and federal Indian policies had already deemed her, and anyone like her, not worthy of protection.
The recognition and treatment of Indigenous women falls short when it comes to crimes and violations targeted at the integrity of their bodies and beings. As a mechanism of colonialism and conquest Native Americans have been treated as an inferior race in practice and in rhetorical discourse, by European settlers/colonizers and predominantly white male legislators. The legacy of this prolonged treatment and distorted associations with indigeneity are the harmful consistent tropes in U.S. society which undermine the body ownership, agency, and humanity of Native Americans, especially tribal women. Sociologist Dwanna Robertson McKay (Muscogee (Creek) Nation) points out in her theoretical framework regarding legitimized racism that “historically racist discourse” enabled and justified the
“mythical righteousness of the murder, rape, and enslavement of Indigenous Peoples” (D.
Robertson 129). While the justification of these brutalities seems improbable in modern-day society, McKay argues that current American institutions nonetheless still sustain and
“legitimize a stereotypical and racialized understanding of Indigenous Peoples” (D.
Robertson 128). Consequently, these factors render Native women vulnerable to exotification and objectification, amidst a “broken” legal system that barely challenges the “acceptance of violence against tribal women today” (Deer xii; Agtuca 15). Even though the U.S. legal system facilitates space for resolutions, the precedent of a series of federal Indian policies cause loopholes that still marginalize Native women to the extent that they seem invisible despite decades of Native activism and the updated Safety for Indian Women Title in the 2013 reauthorization of Violence Against Women Act (VAWA).
The articulated dehumanization of Native women, a methodology used during the
conquest of Native lands and bodies, operates within the dynamics of the Violence Against Women Act since the rise of the battered women movement at the end of the 1970s. By looking at this initial stage in the violence against Native women movement, I argue that preceding the VAWA drafting in the early nineteen nineties, national conventions and nationwide research done on family violence by the federal government contributed to the current sphere of invisibility that haunts Native women by promoting an ethnocentric agenda, benevolent to a white majority. Despite an array of available resources to approach violence against Native women during this initial stage, provided by Native women themselves in an attempt to challenge the hegemonized dominant perceptions that normalized partner violence as integral to Indigenous households and communities, the failure on behalf of the U.S.
government to actively engage with these resources, due to stereotypical propaganda and racial bias, perpetuated nonetheless in legislative language that rendered Native women as violable tropes rather than human.
The invisibility of Native women is a product of colonization and consequent federal Indian political agendas that utilized the intersectionality of her gender and race to shape this violable identity. Using Indigenous critical theory, Jodi A. Byrd (Chickasaw Nation)
illustrates that “paradigmatic Indianness” has been crucial to the manifestation and
continuation of U.S. empire through settler-colonialism, and has since evolved through the various roles U.S. institutions of power have designated for indigeneity over centuries. She argues that “U.S. cultural and political preoccupations with… the reproduction of Indianness serve[s] to facilitate, justify, and maintain Anglo-American hegemonic mastery,” by
downplaying the presence of Natives as “typically spectral … lamentable casualties of national progress who haunt the United States … and [are] destined to disappear” (Byrd xx- xxi). Diminishing the place for Native Americans in the historical and current US empire has strategically let to transitional “interpellate Indianness” until the extent that this structure has
been “naturalized by hegemony” in a post-colonial, poststructuralist twenty first century United States (xviii). Though Byrd deconstructs white supremacy to address the question of tribal sovereignty through constructed Indianness, this mechanism translates perfectly to the violence against Indigenous women movement, as the two are inherently intertwined.
Professor Andrea Smith argues that image casting fueled by sexual violence, as a tool of destroying both nation and personhood, cannot be regarded separately from patriarchy and colonialism, and thus white racial supremacy. Andrea Smith argues that sustaining the belief that “Native bodies are inherently violable” ultimately contributed to “the extent to which Native peoples are not seen as ‘real’ people in the larger colonial discourse,” as part of the succeeding termination strategies to further disenfranchise Indigenous peoples (Conquest 12).
Narrowing and monitoring the space through which Native American peoples could
constitute their own identities, bodily agency and political sovereignty, colonialism lives on through the inadequate legal protection of battered Native women.
American institutions have for centuries built upon the expropriation of Native women, using the portrayal of an Indianness with a minimum claim over land and body as a means of propaganda for empire and the justification of violence towards Natives people.
The origin of distorted, inferior, and sexualized imagery of Native Americans pivots with the arrival of Columbus and consequent European colonizers and settlers in the Americas, as part of promoting and establishing western political and Christian cultural hegemony in the Americas. Driven by the accumulation of wealth, resources and land to facilitate the growing merchant class in an emerging capitalist economy, European imperial powers used the portrayal of naked female Indian bodies to legitimize violence and exploitation of the lands that were “emptied and awaiting” in the European mindset and narrative (Byrd xxi).
Historian Zoe Detsi-Diamanti argues that the depicted violable Indigenous female body played a variety of roles in the European grand narrative of the Americas throughout the
sixteenth century (to justify the violent conquest of her exotic wild otherness) to the eighteenth century when the image of her naked and victimized body became linked to a patriotic envisioning of a new and “distinctly American national identity” in quest of liberation from European influences (61). She writes:
The symbolic violence and sexuality that accompany America’s national image become the primary means of signifying power relations and competing ideologies. From her position as the prostrate victim of violence and
voyeurism, as the silenced object of exchange – not so much between colonizer and colonized, but between Europe/England and a more abstract concept of “Americanness” – the Indian woman enacts elements of the emerging republican thought of the Americans in terms of ideological commitment and ethical conduct. (76)
The invented objectified and marginalized connotation the Indigenous female body had in the constitution of the Euro-American mindset and in the very foundation of the United States as an independent nation, is evident throughout this timeframe. Consequently, American
expansionism continued to thrive upon an interpellate Indigenous female body, that is the
“sexualized maiden” and the “vanishing Indian,” that served the ideological justification to take land, bodies, and resources by force if deemed necessary.3
Objectification and invisibility of battered Indigenous women tie the historical mechanisms of conquest and negligence to the current legislative climate. Labeling Native women as invisible casualties of violence in this day and age, a much-propagated phrase in media concerning the battered women movement, however, is to obscure the extent to which American political and cultural institutions have wielded her absence as a means to secure their own establishment. Sociologist Joe Feagin reflects on the “predatory ethic” of early European colonists and argues that repeated failure to integrate Native Americans into slave-
driven labor forces drove the settlers to a genocidal agenda (12). Despite forcefully taking Native lands, which would bring prosperity to white Americans, Feagin points out that white colonists and legislators did not regard Native Americans as “internal to the everyday
operation of the white-dominated [slavery-centered] economy and society” (12). As a mechanism of ethnocentric assertion of white dominance Feagin linked this preliminary exclusion to further political invisibility as “Native Americans were barely mentioned” in the American Constitution of 1787 (12). Feagin thus illustrates that a language of absence
functioned as an important means to disown the political existence of Native peoples in the American mind and legislative documents. As a result, Smith adds, policies that sustain a
“pillar of white supremacy” over Native bodies, kept depending on a narrative in which Indigenous peoples “must always be disappearing” (“Heteropatriarchy” 406). Subsequent actions and policies following 1787 sought to destroy Indigenous person- and nationhood in order to maintain hegemonic dominance. These mechanisms varied from warfare to removal from tribal grounds, to forced assimilation through boarding schools, and termination by the forced sterilization programs of the Indian Health Services up until the 1980s. For a majority of Native women, the VAWA, in its current form, can also be added to this list.
Contrary to the image of the pliant Indigenous victim, tribal advocates championed since the beginning of the anti-violence movement for the restoration of traditional
Indigenous teachings regarding gender roles and bodily agency that are contrary to the grand narrative of colonization and appropriation. Jacqueline Agtuca, (Cherokee Nation) consultant with the National Indigenous Women Resource Center, points out that since the beginning of the national violence against women movement in the 1970s, Native and non-Native
advocates, together with grassroot organizations work to universalize “a belief that violence is not our tradition and that women are sacred” (23). Spreading and teaching pre-contact/pre- colonial beliefs forms an important tool to contextualize violence towards Native women
within and outside Native communities, as internalization of violence is common and toxic.
Also, from an ideological perspective these teachings counter the one-sided naturalized understanding of invisible battered Native women as promoted by mainstream media and current US legislation. Though vital for the movement, this approach only slowly counters the structural assemblage of Native American identity. Native rights activist and scholar Paula Gunn Allen (Laguna Pueblo) argues that “the status of women within the tribes has suffered grievous decline since contact,” as Anglo-American culture substituted their equality to men for subordination (191). Also, according to Gunn Allen, movies, media, and
stereotypical portrayals of bewildered and violent Indianness caused increased (sexual) violence against Native women from the 1930s onwards (192). Andrea Smith adds to this that propaganda and historic legal treatment of Indigenous peoples have indeed led to a present in which many Native “community members will argue that sexual violence is ‘traditional,’”
which illustrates the extent to which violence has become naturalized in Native societies (Conquest 13). These factors add to the disputed assumption that violence against women is integral to Indigenous cultures and therefore tolerated by tribal nations and the U.S.
government.
From the beginning of the organized national coalition on violence against women, Native women petitioned counter visions regarding their interpellated invisibility, bigotry in research, and promoted concurrent jurisdictional measures that would enhance physical safety and protect their status as women. The 1977 National Women’s Conference, in Houston, Texas, was not only the first government sponsored conference to address gender inequality and, to a lesser degree, violence in the home in the United States, the event also marked an early legislative success to enhance gender equality of Alaskan Native women.
Despite the fact that there no Indigenous women were asked to testify on domestic or family violence, a delegation of five Alaskan Native women provided a major opportunity for the
National Commission to engage in a dialogue that addressed gender and racial inequality in Native communities as a result of forced assimilation and marginalization. The five women addressed the “erosion of the status of Native women” in their communities as a direct result of the introduction of patriarchal western institutions following the Alaska Purchase of 1867 (Worl 37). Rosita Kahaani Worl (Tlingit) points out that these women successfully lobbied for “the protection of hunting, fishing, and whaling rights” to counter state policies and discourse that both discouraged them from participating in these traditional practices and compromised their social and economic independence (37). By illustrating that outsiders and researchers predominantly misunderstood the “value of women in their subsisting hunting and fishing societies,” the delegation was able to convince the National Commission to translate cultural survival into legislative language that would protect their traditional
practices as well as elevate their social status (Worl 37). This example is remarkable because it testifies to the persistence of the Alaskan delegation in challenging the existing
discriminatory perception of Alaskan women by providing insight into the historical trajectory that caused the erosion of their status. In addition, it also illustrates how present and vocal these women were in pursuing a cooperative and long-term solution that would protect the vitality of their communities.
Despite their presence at conferences, inconclusive and biased research on family violence in U.S. households overshadow the occurrence of family violence in Native communities. Though instigated by the federal government to devise future strategies and policies to enhance women’s safety, national inquiries on the topic of family violence
dismissed the intersectionality between communities of color and family violence for the first decade. In 1975, the first nationwide survey on family violence was carried out by Richard Gelles and Murray Straus, when the topic of wife battering had become gradually more known to the public through an increase in media coverage. The prime focus of the survey
turned out to be child abuse, following the passage of the Child Abuse Prevention and Treatment Act in 1974, in predominantly Anglo heterosexual households (Straus and Gelles
“Societal Change” 466-467; Tierney 213). Demographically, the 2143 questioned family responses gave insufficient insight in spousal abuse in non-white households. While
socioeconomic status had been an important factor in this questionnaire, the racial and ethnic background of participants had not been taken into account. This “failure to gather statistical data based on both sex and race” was to the dismay of the International Women's Year Commission (President's Advisory Committee for Women (PACW) 174). During the National Women’s Conference of 1977, the commission found remedying and preventing violence against female United States citizens, “a national goal” with special concern for the
“needs and conditions of minority women,” (PACW 150; 174). Without conclusive statistics on the prevalence of family violence in communities of color, the commission requested that Congress would conduct research into this correlation (PACW 174). Gelles and Straus complied with this request in their 1985 resurvey.
In their attempt to demonstrate racial diversity in the 1985 resurvey, Gelles and Straus predominantly contrasted the occurrence of family violence in black and white households, dismissing the survey responses of Indigenous households. According to Marmion and Faulkner, the results of the National Family Violence Resurvey of 1985, had been “ground- breaking” in the sense that it “surprised” researchers when the outcomes showed considerable
“racial disparity” in family violence in black and white households (136). They argue that because of these findings further research into other communities of color followed, adding to a normalization narrative in which intrafamily violence in minority households had been unheard of until the mid-nineteen eighties (Marmion and Faulkner 136). The scope of the resurvey however was more inclusive than Marmion and Faulkner mentioned. Gelles and Straus had added nine racial categories to the resurvey, including an American Indian or
Alaskan Native option, and used an oversample to specifically target families of color.
Though the oversample targeted only Black and Hispanic households, the researchers
increased their respondent base to 6002 families in order to guarantee multi-ethnic responses (Hampton and Gelles 107). Contrary to the impression that Native households were
deliberately absent, a total of approximately 160 households who identified as Native
American or Alaskan Indian had participated in the questionnaire (Gelles and Straus “survey methodology” 13). Still, their answers did not lead to reliable statistics due to preoccupation with the establishment of a binary racialized paradigm on behalf of the researchers. Gelles and Strauss re-coded the answers provided by Pacific Islanders, Asians, and Native
Americans into one racial category labelled “Other,” which ultimately did preclude any further insights in the responses of Indigenous households (Straus and Gelles “DTA900” 32).
This approach shows how biased racial profiling of the violence against women movement decreased space for Indigenous women, Pacific Islanders, and Asians. As a result, this survey formed another tool that stressed the invisibility rather than the actual presence of Native battered women, despite their active participation.
In addition to incomplete data, the failure of the U.S. federal government to anticipate that violence against Indigenous women would form unique challenges to the existing
jurisdictional apparatus added to the invisibility of the occurrence of this violence. Marking the first step towards federal protective legislation that would address violence against
women on a national scale, the United States Commission on Civil Rights (USCCR) hearings of 1978 on Capitol Hill provided the crucial backdrop utilized by women of various ethnic and racial backgrounds to make themselves heard on the topic. Though only one Native American representative received an invitation to testify on behalf of Indian American women, the testimony of Matilda (Tillie) Black Bear (Sicangu Lakota) yielded momentum for the battered Indigenous women movement (K. Robertson 23). Black Bear addressed an
unprecedented degree of invisibility of domestic violence on Indian reservations and in rural America, with special attention for her home reservation, the Rosebud Reservation in South Dakota. She pointed out that so far “there has been no action” and that isolated communities needed assistance, financially but also in the form of acknowledgment as “the problem has not been raised at a conscious level with the people” (USCCR Battered Women 115-7). This last remark perfectly illustrates how firmly rooted and unspoken violence against Native women was as a result of internalization and normalization. By speaking of “the people,”
Black Bear does not specify whether she exclusively meant residents of the Rosebud Reservation. Her word choice makes this statement reflect upon the ignorance of a diverse audience, not limited to Indigenous peoples and non-Natives, but also targeted at law
enforcement agencies and policymakers. The foundation for national legislation would stem from this and following meetings, yet Black Bear faced an audience that seemed completely oblivious to the fact that violence against Native women eroded the health of tribal nations all over the country.
Black Bear sought self-actualization for the tribal institutions that provided culturally appropriate services to battered women. Although she mentioned a shared responsibility towards the well-being of female inhabitants of the reservation, Black-Bear asked for
assistance from the federal government, not dependency. In her testimony, Black Bear voiced that she herself had been in an abusive relationship. She pointed out that “it was hard […] to get out of it on the reservation. The conditions on the reservation are such that there is no immediate facilities or support groups that exist” (USCCR Battered Women 115). In an interview with Restoration, Black Bear later recited that she fell back on her family, who gave her the strength to eventually leave the relationship (Black Bear 12). Her personal experience, noticing the absence of an organized reservation-based support system, added to a communal effort in which Black Bear, together with members of the White Buffalo Calf
Women Society, built their case. After a year of gathering statistics and insights, the Sicangu Lakota women presented their resolutions to their tribal council. Their resolution dictates that the Rosebud Sioux Tribe already “committed itself to the law and order aspect of this
problem” (USCCR Battered Women 116).4 Therefore, the women rather used the resolution to argue for the execution of a two-fold approach that focused on the prevention of domestic violence through education counseling and the establishment of a safe haven for women, embodied by a local women’s center (USCCR Battered Women 116).According to Black Bear the tribal council sincerely “acted upon” their recommendations after the presentation of the resolution and in the months prior to the USCCR-meeting (USCCR Battered Women 116). These recommendations therefore provided outlets that could be coordinated within the lines of tribal traditions and practices.
By seeking acknowledgement and assistance from the federal government to implement culturally sensitive solutions to address domestic violence, the women of the Rosebud Reservations lobbied for autonomy instead of federal solutions that foremost facilitated urban white women. By including the Rosebud Reservation resolution in her USCCR testimony, Black Bear clearly stressed the role the tribe itself fulfilled, designating them responsibility and agency in addressing abuse of female tribal members on their lands.
In addition, Black Bear spoke of an objection amongst Native women who resented the idea of cooperation with agencies outside of the Rosebud Reservation (USCCR Battered Women 116). The doubt Sicangu Lakota women had in the efficiency of a partnership between their tribe and non-Native agencies was due to fundamental differences in required action to address gendered violence. As Black Bear voiced her view on the agenda presented by the white majority who prioritized their subordination by men within the context of a
heteronormative marriage, her testimony clearly illustrated that battered Native women needed resources rather than the establishment of men as their enemy (Hearn 1101). Black
Bear spoke of her concern that “the lack of a male figure at the time of crisis,” could result in the myopic understanding that “all males are negative,” a teaching she deemed dissenting for her daughters (USCCR Battered Women 116). Vocalizing this concern showed a biased assessment on behalf of the white majority, who almost exclusively attempted to address domestic violence as a gendered issue. As Andrea Smith and Luana Ross, point out, this prioritization of gender relations dominated and constructed a “narrow approach” which professionalized violence against women organizations still utilize. That is, agencies are
“often reluctant to address sexual and domestic violence within the larger context of
institutionalized violence,” shunning “institutional racism” and therefore omit the possibility to “seriously address sexual/domestic violence within communities of color,” where
recognition and action are often most required (3).
Black Bear addressed violence against Native women as an overlooked niche, heavily marginalized by other speakers. Various USCCR testimonies presented by women of color addressed the divide between resources and attention given to battered white urban women and minority women. They pointed out that racism played a prominent role in sustaining a competitive system that impeded the routes to physical, jurisdictional and emotional help for victims of color ever since the establishment of the first women’s shelters in 1975. Asian American activist Bok-Lin Kim used her testimony to expand on unequal treatment of women of color. She pointed out that racism resulted in strategic competition for funds, which adhered to “divisiveness and each group has been suspicious and mistrustful of the other” (USCCR Battered Women 135). In addition to facing psychological and linguistic barriers that cause isolation, Kim noted with regards to existing shelters that she guessed them to be “seriously underutilized by third world women” (USCCR Battered Women 135- 6). This assumption is backed up by accounts of incidents at La Casa de las Madres, a San Francisco based shelter that served a multi-ethnic community where white female staff
members tended to subjugate women of color. Yet, to underscore their principle of equal treatment Casas facilitated a task force called ABLE. Representative Shelly Fernandez explained “ABLE-Asians, Blacks, Latinos, Et cetera. The Et cetera is for the white women who are with us,” (USCCR Battered Women 105). Even though Casas had housed several Native American residents in 1977, Fernandez did not recall their presence (USCCR Battered Women 387). Overall, violence towards Native women barely received attention throughout the testimonies. Black Bear began her testimony by deconstructing this presumed inaccuracy by saying: “I would like to make you aware of the fact that the problem of battered women is not just an ethnic problem with blacks, Chicanos, you know, the ‘Et cetera’ as Ms. Fernandez referred to. But it also happens with Native American women” (USCCR Battered Women 115). The necessity of this statement again illustrates the irrefutable invisibility tied to violence against Native women.
Despite the presence of an interracial board of representatives at the USCCR
conference, white speakers universalized the origin of gendered violence towards women in the United States, leaving no space for alternatives that did not centered around patriarchy and eurocentrism. Del Martin, coordinator with the National Organization of Women's National Task Force on domestic violence, referred in her testimony to the research done by German philosopher Friedrich Engels on the evolution of family structures. His work formed a significant reference point concerning the normalization of wife beating within
monogamous relationships in class-based societies. Engels found that “pairing marriage”
enabled the subjugation of women, reducing her to her “husband’s property,” whilst before this marriage structure, women “were held in high esteem amongst clans” (USCCR Battered Women 5). Martin added with regards to deviant behavior that “if a woman showed any signs of having a will of her own, the husband was expected by both church and state to chastise her for her transgressions” (USCCR Battered Women 6). Hence this created a self-
perpetuating system in which these autocratic institutions functioned as initiators of this ideology as well as the facilitators of tolerated violence. While this discourse explained the expected passivity of women in marriages characteristic of westernized societies, the language testified to a Euro-American interpretation that normalized the use of violence against (insubordinate) women. This narrative has remained barely disputed. In 2016, then vice president and initiator of the first VAWA, Joe Biden described what he argued is the ongoing cause for gendered violence against women in the United States: “It is deeply rooted in the notion that, in western civilization, […] women are the property of, subservient to, somehow responsible to, men,” (“Vice President” 03:09-03:21).Evidently, his words affirm and continue to normalize the acceptance of the sole notion that presumed ownership over another person’s body has led to this cultural phenomenon, even though the origins are often far more complex, especially for Native women.
As part of selective interpretation, alternative insights in the historical treatment of Indigenous women have been glossed over in the construction of the universalized narrative.
Exploring the source for Engels’ work, namely the research on family relations amongst Native American tribes by American anthropologist Lewis Henry Morgan, illustrates how constructed Indianness survived through language and practice. Morgan reported that he learned from a trader in the Nebraska territory anno 1860 that Native women are “passive and passionless creatures,” who abide by the “principle of obedience” (Morgan and White 114).
In addition, the trader also assured Morgan that “an Indian never whips his wife, nor scolds her, nor pets her” (Morgan and White 114). Engels thus marginalized a whole spectrum of traditional tribal and interracial-marriage gender dynamics that existed concurrently with the Euro-American ones by deliberately accentuating Morgan’s first remark concerning female obedience rather than by building upon the second observation. Morgan acknowledged that violence towards women was uncommon among Native peoples, a remark repeated by many
Indigenous rights activists and essential to Indigenous teachings. Nonetheless, upholding and constructing a universal origin myth, based on the eighteenth-century liberal republican ideologies of private ownership and property, underscores the non-Native invention of the seemingly legitimized subordinate place of Native women in practice and (legislative) language that has become inseparable from the current American zeitgeist. Continuation of this discourse preempts the deconstruction of the sustained artificial invisibility surrounding violence against Indigenous women today.
An inclusive approach towards the origins of violence against women in the United States that incorporates colonialism, and the internalization of western discourse that replaced traditional tribal gender relations in Native communities, would have benefitted a larger multi-ethnic audience. Euro-centrist language has shaped the understanding of violence against Native women according to historian and professor Devon Abbott Mihesuah (Choctaw Nation of Oklahoma). She argues that exclusively holding church and state responsible for the loss of “traditional tribal roles” which justifies “men’s violence and women’s passivity” is problematic. She argues that under these circumstances the
“colonialism-as-sole-instigator argument” reinforces the view that tribal women are mere pliant victims of stereotypical “misogynist Native men,” while “by no means are all Indian men abusive, and in fact they are as angry about the violence as are the stricken women” (19- 20). Therefore, the continuation of a universalized historical contextualization of violence against women in the United States reduces culturally specific understandings and
undermines the complexity of the subject. In the context of the USCCR hearings of 1978, the dominion of a universalized approach to and understanding of gendered violence, in addition to a lack of cultural distinctiveness, ultimately made Indigenous victims more invisible from the beginning of the national movement.
Still, Black Bear’s USCCR testimony has become an important reference point for
Indigenous activists as she provided a blueprint for intergovernmental cooperation to enhance the safety of Native women. Her contextualization of domestic violence on reservations as destructive yet unacknowledged, stressed the invisibility of “the problem,” its victims and perpetrators, and the degree to which both tribal and state governments had witnessed the vitality of tribal communities degrade without interference. Black Bear testified that education would be a starting point to offer alternative insights in this crisis. Whereas the notion of private ownership that follows from Eurocentric marriage structures had been one factor, conditions such as forced relocation, the termination of tribes, and boarding schools specifically shaped violence against Indigenous women. These circumstances, due to the fact that they lack commonality with the mainstream battered women movement, have in general been left out of the overall narrative concerning violence against women in the United States.
Black Bear later declared that this was the reason she went to the USCCR meeting, to increase awareness amongst legislators in order to prevent jurisdictional shortfalls on behalf of Indigenous women. She argued “there had to be special language for tribal nations” in the national legislation “that protect the sovereignty of Indian nations” and to guarantee that Native women would not be “forgotten” (Agtuca 16). Even though her presence and testimony directly challenge the popularized notions of absence, naturalization, and invisibility of gendered violence in Native nations, the United States as an institution continues to bypass Indigenous women.
CHAPTER 2: NOBODY COUNTS: RESTRICTED ACCESS AND COMPROMISED PROTECTION FOR INDIGENOUS WOMEN
“I am urging Congress to uphold the U.S. Constitution and honor U.S. treaty Agreements […] and send a strong message across the country that violence against Native American women is unlawful and is not acceptable in any of our lands.” (“On the Hill” 25)
On April 25, 2012, Deborah Parker, enrolled member and then vice chairwomen of the Tulalips Tribe of Washington spoke these words before the Senate to address the
reauthorization of the Violence Against Women Act (VAWA) which had expired in 2011.
The day before the conference, Parker spoke with Senator Patty Murray, who had been involved in the drafting and passing of the original VAWA of 1994, two days before the Senate would vote on its reauthorization. The 2012 VAWA was controversial amongst senators as it included language that affirmed the inherent right of participating tribal governments to exercise Special Domestic Violence Criminal Jurisdiction (SDVCJ) over interracial offenses on reservations that would be concurrent with federal and state
jurisdiction. Murray told Parker that afternoon that the act “would probably fail because it
‘lacked a face,’” upon which Parker decided to share her own experiences, as a survivor and witness of sexual and domestic violence, with the senator (Turner). The next morning Parker publicly retold her story, providing critical context for the importance of SDVCJ to counter the unchecked abuse of Indigenous women. She stated: “I am a Native American statistic. I am a survivor of sexual and physical violence” (“On the Hill” 25). By telling the four tales of separate incidents between the 1970s and the late 1990s that framed her message, Parker testified that “a majority of [Tulalip] girls have struggled with sexual and domestic violence,”
repeatedly and without repercussions, thereby questioning Congress “Why is my life and the
lives of so many other Native American women, less important?” (“On the Hill” 25).
Parker addressed child molestation, rape, murder, and suicide of Indigenous women she had personally known, confronting her audience with detailed descriptions of crimes that never got reported nor resolved and perpetrators who never got convicted. Her words, “I am a Native American statistic,” connote not just the outcome of national crime victimization surveys that render every four out of five Native American women a victim of violence. Her words reflect that the then-current provisions of the Violence Against Women Act failed to increase safety for Native women nationwide because the law constitutes an environment in which the actual lives of Native women are reduced to numbers, expressed through missing- and victimization rates, indicating a reality in which Indigenous women are predominantly measured by absence. Contrary to this dehumanizing practice, the hard data found in law enforcement records, state databases, and national databases are far from accurate to this day.
“Violence impacts approximately 730,000 American Indian and Alaska Native lives each year,” according to Abigail Echo-Hawk (Pawnee), director of the Urban Indian Health Institute (UIHI), however the actual number is probably higher “due to systematic
underreporting, misclassification, and ongoing distrust of law enforcement” (Echo-Hawk 1).
In her research reports, Echo-Hawk argues that these factors contribute to a “nationwide data crisis” that allows Native women to be violated, whilst it sends the message to Indigenous women that “our lives and our bodies don’t matter,” (Echo-Hawk and Lucchesi 2; qtd. in Norimine). The absence of a reliable data infrastructure, which is accessible for the multiple law enforcement agencies who share the responsibility to keep Indigenous women safe, adds to the overall impression that safety and justice for Indigenous women are beyond reach despite the VAWA.
Parker created unprecedented legal momentum during the conference, but the updated Title IX provisions for SDVCJ still outline barriers in the VAWA reauthorization of 2013.
These barriers render Native women vulnerable, especially regarding the collection and availability of crime data. Many scholars and Indigenous advocates have pointed out that the Safety for Indian Women Title provisions are too narrow to fully protect Native women, predominantly from stalking and (sexual) violence committed by perpetrators unknown to the victim. Law practitioner Cynthia Castillo explains that the VAWA specifically frames
domestic violence offenders and excludes assailants “who do not live or work in Indian Country and are not in any type of romantic relationship with their victims” (316). Thus, tribal courts, who meet VAWA requirements to exercise SDVCJ, may only initiate
prosecution if the crime happened within their jurisdiction, and the defendant has significant verifiable personal ties to a Native member and to his or her tribe. Regarding Parker’s testimony, Law School graduate Rory Flay keenly remarked that the reauthorization
“provides additional protections for one of the three women in her story,” that is, the woman who had been murdered by her husband, and “because one of them was raped by an extended family member and the other by four strangers, they likely have no recourse in tribal court”
(Flay 232-33). The jurisdiction to investigate and consequently prosecute sexual abuse of a minor and rape in Indian Country in the state of Washington would have fallen upon the federal government. However, Parker explained that she never reported the abuse to the authorities, as she had little faith that an investigation would have followed (Hotakainen). In addition to underreporting, the absence of full criminal jurisdiction prohibits tribal police officers from registering these types of (sexual) assaults on their tribal citizens as well, therefore the Tribal Title provisions under VAWA currently allow for these crimes to disappear from the databases.
Preceding VAWA authorizations have been straightforward regarding cooperation between tribal, state, and federal law enforcement agencies concerning data collection and access to crime databases in order to enhance safety for Native American and Alaskan Native
women. The 2000 reauthorization of the VAWA honored the civil jurisdiction of tribal authorities to administer valid protection orders for tribal members that are recognized by federal and state agencies as well(Pub. L. 106–386, §1101(b)(4)). Hereafter, the VAWA of 2005 designated a budget for a national database for registered protection orders issued by tribal courts (Pub. L. 109-162, §905(b)(1)(B)). Moreover, this VAWA reauthorization was also the first to establish “a national tribal sex offender registry” and it authorized tribal law enforcement agencies to “enter information into Federal criminal information databases and to obtain information from the databases” (Pub. L. 109-162, §905(b)(1)(A); §905(a)(2)).
Even though this latter provision was upheld for VAWA participants in section 904(f)(1)(A) of title IX of the Violence Against Women Reauthorization Act of 2013, coordinated efforts are far from reality and Indigenous victims of violence still disappear, in person and from data, beyond comprehension (Pub. L. 113-4). Data shortage is deeply rooted in the law’s foundation, as the VAWA builds upon a legacy of decentralized legislative measures, grant distributions, and grassroot efforts, which ultimately disadvantage reporting and crime database access in Indigenous communities. Even though the VAWA provisions
continuously seek to establish and expand accessible cooperative crime data infrastructures, its reach in Indian Country is severely compromised by disenfranchising federal legislation and Supreme Court decisions that restrict tribal jurisdictional sovereignty. As these laws obscure the path for both VAWA-participants and non-participating tribal authorities to intervene, investigate, and report on assault cases, they foster the ongoing systemic marginalization of Indigenous victims of domestic and sexual violence, allowing them to disappear into incomplete and missing files and destroyed (DNA) evidence, thereby sustaining a data void for which the VAWA, on its own, has no solution.
Starting amidst a paradigm shift during which family violence gradually gained legal momentum from the 1970s onwards, the authority to respond to violence in the home befell
grassroot organizations as the criminalization of spousal abuse was in its infancy. In a manual published by Indigenous resource center the Sacred Circle, former consultant, Carol Maicki (1936-2004), disclosed the backdrop against which grassroot organizations built coalitions, opened rape crisis centers and shelters, and lobbied for legislation. Initially, the battered women’s movement pursued the course set by the anti-rape movement, which preceded the first by nearly two decades (14-15). Although both movements aligned to break down
existing stigmatization concerning crimes against women and provided aid to victims through centers and shelters, a fundamental difference was their legal starting point. According to Maicki, “rape,” despite several exemptions, “was already a crime on the books, [while]
battering your wife was not yet considered a crime but a family matter” (15). Even though advocates of all backgrounds pushed to change the perception of domestic violence as a public matter instead of a private affair, their impact on newly written legislation differed widely per state. For example, anti-rape advocates had “accompanied rape victims through the criminal justice process” since the nineteen sixties, but the first trial held to prosecute a husband who raped his wife dates from 1978 (Maicki 14; Bennice and Resick 230). Marital rape was legal in all states until 1974. By 1978 five states had criminalized it, and the first federal legislation that outlawed “forced sex in marriage” originates from 1986 (Bennice and Resick 230-1). Battered women advocates faced similar trajectories after they established the National Coalition Against Domestic Violence in 1978 and began to lobby for legislative reforms (K. Robertson 23-24). When the VAWA became law in 1994, its federal guidelines met with a country in which advocacy had established the first routes to services and aid for victims, but in which existing state legislation heavily depended upon the local impact of activists.
While the criminalization of violence against women predominantly took place on state levels, the federal response was to allocate funds for grassroot organizations. Even
though financial aid marked the beginning of the national coordinated effort to counter domestic violence, the corresponding laws ultimately failed to create consensus within the battered women's movement. Historically, legal aid and services provided to victims by grassroot organizations were primarily initiatives of locally involved women who organized support meetings or who ran shelters. In 1984, Congress enacted the Victims of Crime Act and the Family Violence Prevention and Services Act, the first federal laws to set guidelines for the disbursement of funds to battered women’s agencies. Although these acts enabled grassroot organizations to apply for aid to finance programs, staff training, and shelter facilitations, economist Jill Tiefentahler and her colleagues conclude that the financial structure that developed through these acts, and later through VAWA, did “not specifically target the areas that are in greatest need” (566). Rather, this structure caused divisions between shelter residents and management that correlated along class and race lines.
According to Maicki, the competition for funding fundamentally altered the “basic [women- centered] philosophy” of advocacy into a “social service approach,” with “a disturbing aura of missionary zeal,” that reflected “white, middle class values” while demographically ethnic lower class women became the shelter’s primary residents (16). In order to become eligible for financial aid, shelters appointed pre-required boards and staff members, all the while mandatory “counseling sessions and parenting classes” replaced legal assistance for victims (Maicki 16). Overall, the renewed shelter methodology focused on “fixing the battered woman instead of regarding her as a victim of a crime and holding the criminal accountable”
(Maicki 16). As this approach bestowed the responsibility to end domestic violence in her home upon the battered woman, it also created distance between victims and law-
enforcement agencies by condoning the actions of perpetrators.
The societal shift towards criminalized family violence proved legally strenuous, in particular for Native women and in Indian Country due to systemic juridical barriers
specifically targeted at tribal sovereignty. Political scientists, David Wilkins and Heidi Kiiwetinepinesiik Stark (Turtle Mountain Ojibwe) explain that Native nations have a
complex diplomatic history with the United States that affects the degree to which individual Tribal governments can execute self-determination in their political affairs (34-36). Wilkins and Stark point out that although “tribes are treaty-recognized sovereigns, [whose] tribal rights are not based on nor subject to U.S. constitutional law,” their right to exercise their
“reserved power” is limited by and “subjected to federal dominance” as established through treaties, policies, and the trust relationship (34; 47). Because “the federal government defines its trust responsibility in a paternalistic manner,” tribal governments “may exercise only those governmental powers that have been specifically delegated to them by express congressional action” (47). Regarding violence against Native women offences in Indian Country, federal statutes limit the sovereignty of tribal governments and dictate the extent to which tribal authorities and courts can, if at all, autonomously respond to these cases. Sociologist Barbara Gurr argues that federal restrictions to tribal jurisdictional authority concerning violence against Native women reflect a settler colonialist agenda in which “sexual violence as a tool of conquest” went without repercussions to expand U.S. empire and subjugate tribal nations (113). She states that, due to a history predominantly marked by the abuse of the Indigenous female body, federal Indian policies that intend to regulate safety and care for Indian Country sustain “a uniquely legislated vulnerability” for Indigenous women based on their
“racialized” identities (Gurr 113). This vulnerability is perpetuated through systematic limitations to the civil and criminal jurisdiction of Native nations that consistently compromise the protection of Indigenous women, whereby victims are dismissed and perpetrators walk free.
The disparity in federally delegated tribal criminal jurisdiction concerning violence against Native women follows from a series of federal statutes and Supreme Court decisions,
which have never been completely overruled. Sarah Deer (Muscogee (Creek) Nation) J.D.
argues that a specific series of federal Indian policies has “created one of the most
complicated jurisdictional frameworks in the American law” (34). Deer points out that within this framework, the combination of three federal laws target all federally recognized tribes:
the Major Crimes Act (MCA) of 1885 that “provides the federal government with criminal authority [over serious crimes such as murder, kidnapping and rape] on many temporary reservations,” the Indian Civil Rights Act (ICRA) of 1968 which unilaterally limited tribal courts to sentencing felonies up to one year in prison, and lastly, the 1978 Supreme Court decision Oliphant v. Suquamish that provides legal immunity for non-tribal members from tribal authorities within their explicit jurisdiction (34; 39).5 A fourth statute, Public Law 83- 280 (PL-280) passed in 1953, “turned[ed] law enforcement authority [in Indian territories]
over to the state governments” and has since been effective in sixteen states (Deer 38, Gurr 113). Together, these laws and decision are the residue of the historical Congressional effort to “extinguish” and “control the Indigenous populations,” (Deer 36). Although, they were not specifically drafted to constitute a legislative void regarding domestic violence felonies, combined they do form the precedent for the VAWA (Luna-Gordinier 125). This means that because these statutes are still in effect, they uphold legislative barriers for individual Native nations, both VAWA-participants and non-participating tribes, regarding the protection of their enrolled members.
Due to the limitations of the aforementioned jurisprudence matrix, tribal nations are unevenly equipped to try assailants who commit crimes against Native women, despite the 2013 VAWA Tribal Title provisions. The federal requirements to implement VAWA SDVCJ demand Native nations have Tribal charters which guarantee ICRA protections to both plaintiff and defendant, and to have tribal criminal justice systems modeled after the federal one. Sociologist Anne Luna-Gordinier (Choctaw and Chickamauga Cherokee), exposes the
