Sharing Our Stories of Survival: Native Women Surviving Violence (5 page)

Violence against Native women was rare because such behavior was inconsistent with the role of women within the worldview of Indian nations. When such behavior occurred, the nation addressed the offender’s action appropriately. For example, among the Tlingit people, perpetrators of domestic violence crimes were tied to stakes during low tide and justice was left to greater powers. If the perpetrator survived, then he survived. If not, then he did not. The punishment was well known for such crimes.
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The wishes and roles of the aggrieved woman were central to the response from the community. Violence was considered inappropriate behavior and the well-being of the woman was central to restoring the balance of the community. Thus, the family, the clan, as well as spiritual and tribal leaders held essential roles in the process of holding offenders accountable for their actions.

Offenders were often removed from the tribe through banishment or execution, whipped, or publicly humiliated, within the specific practice of the tribe. The Payne Papers contain the following report of the death of a Cherokee chief:

Doublehead had beaten his wife cruelly when she was with child, and the poor woman died in consequence. The revenge against the murder now became, in the Indian’s conscience, imperative. The wife of Doublehead was the sister of the wife of (James) Vann. Vann’s wife desired with her own hand to obtain atonement for her sister’s death. Vann acquiesced; and he and a large party of friends set away with his wife upon the mission of blood.
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The safety of women was and continues to be directly linked to the inherent authority of Indian nations to use the power of government to protect their well-being. The erosion of rights after the arrival of Europeans made it more difficult for nations to protect their women.

In exchange for lands and resources, the United States guaranteed to protect the sovereignty of Indian nations. The language of treaties signed by the United States and Indian nations indicates that lands were set aside for the exclusive use of Indian nations.
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The U.S. Supreme Court has also affirmed that tribes retain the inherent right of self-government unless explicitly removed by Congress.
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Specifically, the Court has stated that tribal government authority includes “the power to punish tribal offenders . . . to regulate domestic relations among members.”
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In addition, the Court added that tribes retained inherent sovereign power, even on
fee lands
, to regulate conduct of non-Indians that threatens or directly affects “the health or welfare of the tribe.”
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All of this envelops the federal trust responsibility of the United States, which Congress has defined to include “the protection of the sovereignty of each tribal government.”
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The federal trust responsibility assures tribes that the United States will defend the right of Indian nations to self-government. The United States has a trust responsibility to promote the welfare of Indian tribes, which includes a duty to assist tribes in making their reservations livable homes.
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Within this large context lies the responsibility of the United States to assist Indian nations in safeguarding the physical safety and well-being of Native women from violence.

Regardless of the trust responsibility, both Congress and the Supreme Court have gradually restricted the jurisdictional authority of Indian nations, resulting in the erosion of the legal ability of tribal governments to protect women citizens. This pattern is highlighted by a review of the impact on Native women by the following federal actions.

The first is the Major Crimes Act, passed in 1885, wherein the U.S. government assumed jurisdiction over serious crimes
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committed by an Indian in Indian Country (specifically in relation to acts of violence commonly committed against women: the crimes of murder, kidnapping, maiming, assault with intent to commit murder, assault with a dangerous weapon, assault resulting in serious bodily injury, and, later, sexual abuse).
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This was devastating, because these are crimes that relate to acts of violence commonly committed against women. Although Indian tribes retain
concurrent
authority over such crimes, the act severely undermined tribal authority.
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The Major Crimes Act thus
eroded
the traditional response of tribal governments to such crimes by sending a clear (but incorrect) message to Indian nations that they could not properly handle such cases.

The second act of erosion is contained in sections of the Indian Civil Rights Act, passed in 1968, which limits the sentencing authority of tribal courts to “in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both.” This limitation severely restricts the ability of tribal governments to appropriately respond to crimes of violence against Native women such as sexual assault and domestic abuse.
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The limitations also reinforce the myth that offenders of such crimes will not incur any significant consequence.

The third act of erosion occurred in 1978, when the Supreme Court ruled in
Oliphant v. Suquamish Indian Tribe
that Indian nations did not have authority to prosecute crimes committed by non-Indians.
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This landmark shift in criminal jurisdiction by the Court altered the ability of Indian nations to hold non-Indian offenders committing violent acts accountable. Indian tribes, while continuing to exercise civil jurisdiction over these offenders, also encounter the public perception that non-Indians can commit such crimes without significant consequences.

In 1953, Congress increased the jurisdictional complexity confronting Indian nations by enacting Public Law 83-280 (PL 280).
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As an extension of the federal policy to “terminate” Indian tribes, Congress withdrew federal criminal jurisdiction on reservations in six states
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and authorized those states to assume criminal jurisdiction over Indian nations
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and permitted all other states to acquire it at their option. Under PL 280 federal responsibility for the prosecution of serious crimes under the Major Crimes Act,
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such as sexual assault, was transferred to state law enforcement agencies. While PL 280 did not alter the civil or criminal jurisdictional authority of tribal governments, tribes located in PL 280 jurisdictions were denied federal funds to support the development of tribal justice systems.
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In addition, the transfer of federal responsibility to the state governments to provide law enforcement services to Indian nations was not accompanied by the allocation of any funds to support such services. Today, many tribes located in PL 280 states have no emergency or other law enforcement services that should be provided by states and do not receive funding from the federal government to develop such services. Native women living within PL 280 states frequently report that crimes of physical or sexual assault are not addressed. The consequences of PL 280 are far-reaching and tragic.
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In addition to these congressional and Supreme Court actions, the ability of Indian nations to protect women citizens was also eroded through misinterpretation of treaties. Indian nations that entered into treaties with the United States did so on a nation-to-nation basis.
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This
government-to-government
relationship recognized the inherent sovereign authority of Indian nations over their lands and peoples. In this context, Indian nations held full authority to protect women citizenry from foreign individuals choosing to enter their lands and commit acts of violence against women. The Choctaw and Chickasaw nations, for example, safeguarded authority to protect women citizens by including language providing for jurisdiction over non-Indian persons choosing to reside within the boundaries of the nation.

Every white person who, having married a Choctaw or Chickasaw, resides in the said Choctaw or Chickasaw Nation, or who has been adopted by the legislative authorities, is to be deemed a member of said nation, and shall be subject to the laws of the Choctaw and Chickasaw Nations according to his domicile, and to prosecution and trial before their tribunals, and to punishment according to their laws in all respects as though he was a native Choctaw or Chickasaw.
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According to these agreements, Native women could rely upon their governments for protections from individual acts of abuse from their husbands. In earlier treaties Indian nations also provided for protections for women citizenry by including clauses specific to women.
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The Relationship to the Land and the Status of Native Women

Attacks on Native culture began with land acquisition. The legal fiction for creating a basis for land title in North America was the “doctrine of discovery.” Under this doctrine, the sovereign discoverer could occupy land already occupied by infidels to extend their Christian sovereignty over the land and the indigenous people who resided there.
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The initial dispute between foreign conquerors and Indian nations over land has continued over time. In 1823, the Supreme Court adopted into U.S. law the “doctrine of discovery.” Chief Justice John Marshall wrote in
Johnson v. McIntosh
, “As the United States marched across the continent, it was creating an empire by wars of foreign conquest just as England and France were doing in India and Africa. In every case the goal was identical: land.”
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The taking of tribal lands through these wars altered the relationship of Indian nations and specifically Native women to their homelands.

Originally, in the Eastern region of the North American continent, many Indian nations viewed cultivation of the soil as the responsibility of women.
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In this region:

[They] developed two forms of land tenure, one communal and the other individual. The village or cultural group claimed sovereignty over a particular area, and individual women controlled the use of specific fields. As long as a woman used a portion of land for agriculture, she had the continuing right of usage. If she stopped cultivating that land, however, either someone else would take the plot or it would revert to communal or village control.
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European and later American governments, on the other hand, considered farming the domain of a man and land the private property of individuals. Altering the identity of Native women as caretakers and cultivators of the land and instituting individual ownership was a vehicle for “civilizing” and assimilating the Indians. Because the worldview of many Indian nations held the earth as feminine, the spiritual mother, private ownership of land was culturally destructive to Indian nations and Native women.

Through treaties, Indian nations exchanged lands and resources for peace and recognition of their sovereignty. The language contained in such treaties frequently was not interpreted according to the lifeways of the Indian nation but that of the United States. One example of this is the claim of Sally Ladiga and her heirs to land under the Treaty of New Echota enacted in 1832.

Under the treaty, Indian heads of families were to be allotted 320 acres of land to live on and cultivate. Local federally appointed “locating agents” decided who was an Indian and who was the head of a family and allotted heads of families the land on which they resided and had made improvements. When Ladiga was enrolled, she had a cabin and a cultivated field on her land, had raised a family of several children, but had no husband of record. The only people recorded living with her were another woman, Sarah Letter, and a boy named Ar-chee-chee. In spite of evidence that Ladiga bought clothes for Ar-chee-chee, as well as conflicting evidence that he was Ladiga’s orphaned grandson, the locating agent found that Ladiga was not the head of a family and was not entitled to a half section of the land.... Despite all Sally Ladiga’s efforts to continue living upon her land a soldier forcibly removed her from it. A white man named Smith entered her land and took over her cabin and field. Armed troops forced Ladiga to immigrate to Indian Territory in Arkansas.
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In 1844 the U.S. Supreme Court held that Sally Ladiga was indeed the head of a family. “We cannot seriously discuss the question, whether a grandmother and her grandchildren compose a family, in the meaning of that word in the treaty, it must shock the common sense of all mankind to even doubt it.”
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Although years later the Supreme Court recognized Sally Ladiga as “a head of family,” it did not benefit her or her heirs. Sally Ladiga apparently died on the Trail of Tears and her grandchildren could not legally prove that she was their ancestor.

Native women also suffered the loss of their communally held tribal homelands through the General Allotment Act (passed by Congress), which conveyed personal ownership of land to individual Indians.
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Prior to the Allotment Act, most Indian nations held land collectively. It is estimated that Indian nations lost 90 million acres of land due to the act, displacing hundreds of Native women and families. The act was inconsistently interpreted in different regions of the United States. In some regions, women could not receive allotments as head of household. As a result of the act many tribal women became landless. Additionally, Native women who did receive individual allotments frequently lost land to non-Indian men. In many cases non-Indian men married Native women to gain access to land and resources.
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The large number of murdered women of the Osage Nation of Oklahoma finally sparked a federal investigation.
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While the Allotment Act was later abolished, it had a devastating impact upon Indian nations, especially upon the lives of Native women. Many Native women went from holding a strong role in a communal land to being landless.