Sharing Our Stories of Survival: Native Women Surviving Violence (7 page)

9
  See Patricia Tjaden and Nancy Thoennes,
Full Report of the Prevalence, Incidence, and Consequences of Violence Against Women: Findings from the National Violence Against Women Survey
(National Institute of Justice and Centers for Disease Control and Prevention, NCJ 183781, November 2000), p. 22.

10
  See Greenfeld and Smith, p. 4.

11
  See Tjaden and Thoennes, p. 22.

12
  See USDOJ,
Domestic Violence and Stalking, Second Annual Report to Congress Under the Violence Against Women Act
(1997); USDOJ.
Stalking and Domestic Violence, Third Annual Report to Congress Under the Violence Against Women Act
(1998).

13
  Supra note 8.

14
  Tjaden and Thoennes, p. 22.

15
  One example is that “There were 9,520 incidents of domestic violence reported to Navajo Nation Department of Law Enforcement in 2003. The good news is that number declined from the 11,086 incidents reported in 2002. These figures by no means represent the total number of cases on the reservation, because many incidents go unreported.” Kathy Helms, “Tribe Battles High Domestic Violence Rate,”
Gallup Independent,
March 18, 2005, available at:
www.gallupindependent.com/2005/mar/031805dviolence.html
.

16
  Hon. Sandra Day O’Connor, “Lessons from the Third Sovereign: Indian Tribal Courts,”
Tribal Court Record
9, no. 1 (National Indian Justice Center, 1996).

17
  Russia, France, England, and Spain negotiated with and followed similar patterns of violence through warfare against Indian nations and Native women. See Herman J. Viola,
Diplomats in Buckskins: History of Indian Delegations in Washington City
(Bluffton, SC: Rivilo Books, 1995, originally published by the Smithsonian Institution Press, 1981).

18
  David E. Stannard,
American Holocaust: The Conquest of the New World
(New York: Oxford University Press, 1992).

19
  Sarah Deer, “Sovereignty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law,”
Suffolk University Law Review
vol. 38 (2005): 455.

20
  Federal Indian Law refers to codes, cases, and executive orders of the United States and not the tribal law of specific Indian nations.

21
  
Aotearoa
is the aboriginal name for New Zealand.

22
  Moana Jackson,
Address at the National Collective
of
Independent Women’s Refuges Conference and Annual General Meeting,
Rotorua, Aotearoa (October 15, 2003).

23
  Tillie Black Bear is a founding member of the White Buffalo Calf Woman Society of the Rosebud Sioux Tribe (1978) and a founding member of the National Coalition Against Domestic Violence (1978). She is considered one of the grandmothers of the Battered Women’s Movement in the United States.

24
  Lafitau,
Moeurs des Sauvages,
vol. I (Paris, 1724), pp. 71 and 72, as cited in
Iroquois Women, An Anthology; On the Social and Political Position of Women Among the Huron-Iroquois Tribes
(Iroqrafts, Traditional & Ceremonial Iroquois Crafts & Arts from the Six Nations Reserve Reprint, 1990), p 36.

25
  Christine Zuni Cruz, “Tribal Law as Indigenous Social Reality and Separate Consciousness [Re]Incorporating Customs and Traditions into Tribal Law,”
UNM Tribal Law Journal
1 (2000/ 2001), available at
http://tlj.unm.edu/articles/volumel_I/zuni_cruz/index.php
. (The Tiwa words and translations used here are from a discussion and interview between Isleta Pueblo member and Tiwa instructor Doris Lucero with Christine Zuni, October 14-15, 2000.)

26
  Marlin Mousseau is a traditional pipe bearer of the Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota. Mousseau developed the Medicine Wheel Approach to working with domestic violence, which incorporates traditional Lakota beliefs, philosophies, and ceremonies. He has worked in the field of domestic violence for over twenty years.

27
  Jessie Johnnie, Chookaneidee Elder, Sitka Tribe of Alaska; Kayaani Commissioner; Rural Human Services Program Council Member.

28
  “Alaska Native Women’s Coalition Against Domestic Violence & Sexual Assault” (Statewide Conference Documentary Video, September 2003).

29
  Karen Artichoker,
The Criminal Justice System: Indian Country and Domestic Violence Response
(unpublished 1991).

30
  Interview with Juana Majel-Dixon, Tribal Council Member, Pauma Yuima Indian Nation (November 2004).

31
  Tillie Black Bear, Interview, August 2004.

32
  “Beyond the Shelter Doors,” Office on Violence Against Women, USDOJ, documentary video in celebration of the ten-year anniversary of the passage of the Violence Against Women Act (Produced by Clan Star, Inc., September 2004).

33
  Vine Deloria Jr. and C. Lytle,
American Indian, American Justice
(Austin: University of Texas Press, 1983), pp. 80-109.

34
  “The Cherokees traced kinship solely through women. This circumstance gave women considerable prestige, and the all-encompassing nature of the kinship system secured for them a position of power” (Perdue, 1998; see note 41). “In the matrilineal societies of the Hopi in the Southwest, where the status of women was high, a woman wished to give birth to many girl babies, for it was through her daughters that a Hopi woman’s home and clan were perpetuated” (Niethammer, 1977).

35
  “Divorce was common and easy for most Native American women. If a woman was living with her husband’s family, she simply took her belongings and perhaps the children and went to her parents’ home. If a couple was living with the wife’s parents or if the dwelling was considered hers, she told the man to leave . . .” Carolyn Niethammer,
Daughters of the Earth: The Lives and Legends of American Indian Women
(New York: Collier Books, 1977) p. 3.

36
  Beirne Stedman, “Right of Husband to Chastise Wife,”
Virginia Law Register
3 (1917): 241;
State v. Oliver
(1874) 70 N.C. 44;
State v. Rhodes
(1868) 61 N.C. 445.

37
  Killing of a woman’s sister under Cherokee law allowed the sister to take blood revenge herself.

38
  Marian L. Swain,
Gilbert Said
(Walnut Creek, CA: Hardscratch Press Book, 1992).

39
  Nathaniel Green Papers (Library of Congress), quoted in Samuel Cole Williams,
Tennessee during the Revolutionary War
(Knoxville: University of Tennessee Press, 1974), p. 201.

40
  Ibid.

41
  Theda Perdue,
Cherokee Women: Gender and Cultural Change 1700-1835,
(Lincoln: University of Nebraska Press, 1998), p. 101.

42
  Tex “Red Tipped Arrow” Hall,
President’s Report,
2005 Executive Council Winter Session (February 28, 2005).

43
  See Virginia M. Bouvier,
Women and Conquest of California, 1542-1840: Codes of Silence
(Tucson: University of Arizona Press, 2001); Karen Anderson,
Chain Her By One Foot, The Subjugation of Native Women in Seventeenth-Century New France
(New York: Routledge, 1991); Ann Fienup-Riordan,
Boundaries and Passages: Rule and Ritual in Yup’ik Eskimo Oral Tradition
(Norman: University of Oklahoma Press, 1994).

44
  Bouvier,
Women and Conquest of California,
p. 3.

45
  Bouvier,
Women and Conquest of California,
p. 5.

46
  
Ab origine,
meaning “from the beginning.”

47
  
United States v
.
Wheeler,
435 U.S. 313 (1978). Here, it is evident from the treaties between the Navajo Tribe and the United States and from the various statutes establishing federal criminal jurisdiction over crimes involving Indians, that the Navajo Tribe has never given up its sovereign power to punish tribal offenders, nor has that power implicitly been lost by virtue of the Indian’s dependent status; thus, tribal exercise of that power is presently the continued exercise of retained tribal sovereignty. Pp. 323-326. Respondent, a member of the Navajo Tribe, pleaded guilty in Tribal Court to a charge of contributing to the delinquency of a minor and was sentenced. Subsequently, he was indicted by a federal grand jury for statutory rape of a fifteen-year-old girl arising out of the same incident.

48
  
Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1 (1831).

49
  The Iroquois Constitution, The Great Binding Law, Gayanashagowa, Number 2, University of Oklahoma Law Center, available at
www.law.ou.edu/iroquois.html
.

50
  Johnny Frank, Athabascan Elder, as cited in Carrie E. Garrow and Sarah Deer,
Tribal Criminal Law and Procedure
(Walnut Creek, CA: AltaMira Press, 2004).

51
  Telephone interview with Tammy Young, member Sitka Tribe of Alaska and codirector of the Alaska Native Women’s Coalition, August 1999.

52
  As cited by Perdue,
Cherokee Women.

53
  In 1868, the Second Treaty of Fort Laramie established the Crow Reservation and provided that the reservation “shall be ... set apart for the absolute and undisturbed use and occupation” of the tribe, and that no non-Indians except government agents “shall ever be permitted to pass over, settle upon, or reside in” the reservation. “[T]he United States now solemnly agrees that no persons, except those herein designated and authorized to [450 U.S. 544, 554] do so, and except such officers, agents, and employees of the Government as may be authorized to enter upon Indian reservations in discharge of duties enjoined by law, shall ever be permitted to pass over, settle upon, or reside in the territory described in this article for the use of said Indians.” (Second Treaty of Fort Laramie, May 7, 1868, Art. II, 15 Stat. 650). Similarly, Article II of the Treaty of Medicine Creek, 10 Stat. 1132, provided that the Puyallup Reservation was to be “set apart, and, so far as necessary, surveyed and marked out for their exclusive use” and that no “white man [was to] be permitted to reside upon the same without permission of the tribe and the superintendent or agent.”

54
  
United States v. Wheeler,
435 U.S. 313(1978). See also President Bush, Executive Memorandum to Executive Departments and Agencies, signed September 23, 2004; President Clinton, Executive Order 13175—Consultation and Coordination with Indian Tribal Governments, November 6, 2000.

55
  
Montana v. United States,
450 U.S. at 564 (1981).

56
  450 U.S. at 565-66.

57
  25 U.S.C. 3601.

58
  See
Montana v. United States,
450 U.S. 544, 56 & n. 15 (1980).

59
  Seven crimes were originally covered, but the list has been expanded to the present fourteen by a series of amendments.

60
  
Major Crimes Act,
18 U.S.C.A. 1153 (1885).

61
  
United States v. Lara,
541 U.S. 193 (2004). Because the tribe acted in its capacity as a sovereign authority, the Double Jeopardy Clause does not prohibit the federal government from proceeding with the present prosecution for a discrete federal offense. Pp. 4-16. Domestic violence case during which a federal officer was assaulted.

62
  
Indian Civil Rights Act,
25 U.S.C. 1302(7) (1968).

63
  
Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978).

64
  Public Law 83-280, 67 Stat. 588(1953).

65
  The six named states, known as the “mandatory states,” are: California, Minnesota (except Red Lake Reservation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin, and, as added in 1958, Alaska (except the Annette Islands with regard to the Metlakatla Indians).

66
  PL 280 also conferred civil jurisdiction on the mandatory states, 28 U.S.C.A. 1360 (a), that is confined to adjudicatory jurisdiction only.
Bryan v. Itasca County,
426 U.S. 373 (1976).

67
  PL 280 provided that the
General Crimes Act
(18 U.S.C.A. 1152) and the
Major Crimes Act
(18 U.S.C.A. 1153) no longer applied to areas covered by PL 280 in the mandatory states (18 U.S.C.A. 1162).

68
  See C. Goldberg-Ambrose and D. Champagne, “A Second Century of Dishonor: Federal Inequities and California Tribes,”
Report to the Advisory Council on California Indian Policy,
(1996), pp. 47-59.

69
  See Carole Goldberg-Ambrose,
Planting Tail Feathers: Tribal Survival and Public Law
(American Indian Studies Center, 1997), p. 280.

70
  Not all Indian nations entered into a treaty with the United States. Further, the U.S. Congress failed to ratify hundreds of treaties negotiated with Indian nations. Vine Deloria Jr. and David E. Wilkins,
Tribes, Treaties and Constitutional Tribulations
(Austin: University of Texas Press, 1999).

71
  Article 38 of the treaty with the Choctaws and Chickasaws of April 28, 1866 (14 Stat. 779).

72
  Article Six, Republic of Mexico Treaty with the Navajo Chieftains, July 15, 1839. Treaty consisted of seven articles. Article stated: “In case any Navajo Indian woman succeeds in escaping by fleeing from the house of her master, on arrival of the said woman in her own land, when it is verified, that she remain free and without any obligation of the nation to give anything for her ransom.” Translation from
www.lapahie.com/Dinc_Treaty_1839.cfm
.

73
  Roe Bubar and Pamela Jumper Thurman, “Violence Against Native Women,”
Social Justice
31, no. 4 (2004): 73.