Plagued for years by violent crimes and apathetic law enforcement, Native women are finally gaining a foothold in the struggle to establish their rights.
She needs to call 911. She needs the police to arrest the drunken boyfriend who assaulted her. She needs to go to the hospital, because she might be pregnant, and he might be HIV-positive. She needs a thorough exam, and she needs to speak with a lawyer.
On some Indian reservations, where alcoholism and domestic violence are rampant, this scenario is commonplace. Amnesty International reported in 2007 that Native women are 2 ½ times more likely to be sexually assaulted than American women in general.
But when a Native woman dials 911, a series of obstacles often arise. Many of these obstacles stem from laws governing tribes, and they can amplify the horror of sexual assault on Native reservations.
Among these legal obstacles is a bylaw from the Code of Federal Regulations that dates to the 1950s.
The bylaw’s original intent was to let agencies, such as Indian Health Services, the main health care provider on reservations, shield their information from state prosecutors during court proceedings. The perceived benefit: less involvement keeps agencies neutral. But some critics say IHS relies on the law to withhold information from both state and federal prosecutors altogether, including forensic evidence that could incriminate a rapist. The gain here is unclear.
“So we have serial rapists that stalk our women,” said Charon Asetoyer, whose South Dakota-based organization fights for Native women’s reproductive rights. “Basically, what is happening is our Native women are not getting equal protection under the law, and that is a violation of our constitutional rights.”
Asetoyer, who is Comanche, and other advocates like her want more legal protection because Native womanhood was not always so rife with violence.
For centuries, Native American tribes revered their mothers and daughters, and Native women often enjoyed the same autonomy as men. Some women were even shamans or councilwomen. Historians say these women could declare war, regulate trade and negotiate with enemy tribes.
Over time, however, European settlers introduced misogynistic attitudes often veiled in religious teachings — the diaries of early missionaries reveal how some encouraged Native men to rein in their wives and demand subservience.
“I told him then that he was the master,” wrote Paul Le Jeune, a Jesuit missionary who worked with the Montagnais-Naskapi people in 17th-century Canada. “And that in France, women do not rule their husbands.”
Some modern Native leaders say those teachings – in conjunction with forced removals, allotments and boarding schools – gradually debased women’s status in Native society. Although tribes were given land to call their own, some judges and lawyers say many Indian nations now lack the authority to prosecute crimes, leaving them vulnerable when it comes to protecting their own communities.
“Therein lies the problem of domestic violence,” said Karen Artichoker, the former director of a Pine Ridge Indian Reservation shelter that counsels abusive men and houses battered women. “It is the influence of a Western society that has strategically changed the way we live.”
Karen Artichoker talks about World War 2 bringing more knowledge about worldly things like drugs and alcohol into the Lakota Nation, and with them, an erosion of values.
Today, however, Native women increasingly are confronting these historical injustices and helping to significantly improve:
- A tribe’s ability to enforce tribal and criminal laws
- The policies protecting victims of domestic violence
- Sovereignty over tribal artifacts and culture
Each year, it is these women – in education, entertainment, health and law – who are channeling their historical role as Native lawgivers to help restore women’s sacredness throughout Indian Country.
“If I’m oppressed in San Jose or Washington, D.C., or San Francisco, I am going to stand up for my rights,” Asetoyer said. “It doesn’t matter whether you come from or work in an urban area or a reservation. This land is our land.”
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A history of power struggle
It is the stuff of grade-school textbooks: Iroquois Nation women had a great deal of power before settlers arrived. These Native women owned land, controlled village commodities and, most famously, elected men to represent them in national councils.
These facts are usually mentioned in passing, somewhere between Columbus reaching the New World and Squanto helping the Pilgrims. Less known, however, is the negative effect land grabs had on women’s lawgiving powers.
Among the best-documented declines in power was that of Cherokee women.
Through the late 1700s, Cherokee women were civically engaged. They owned land and had a say during wartime. But this changed after the tribe ceded large tracts of land to the U.S. government in 1795.
The Cherokee, wanting to hold onto land still in their name, assimilated into Southern farming culture. To fit in, the men needed to play landowner, so inheritance patterns switched.
“The Cherokee always knew it was the women’s land,” said Donovin Sprague, a professor of American Indian studies at Black Hills State University. “But it was government policy that changed all that.”
So when President Andrew Jackson’s administration drew up the Treaty of New Echota in 1835, only men signed the treaty, which relinquished the tribe’s remaining territory in the Southeast and laid the groundwork for the Trail of Tears – a forced march to Oklahoma in which more than 4,000 Cherokee died of starvation and exposure.
Once on the reservations of the Great Plains, it seemed as though Cherokee women’s longstanding voice in policy had come to a decrescendo. Almost a century later, the Indian Reorganization Act of 1934 all but silenced it, encouraging tribes to draft written constitutions and elect chairmen.
“The Indian Reorganization Act destroyed this tradition, this role of women as lawgivers,” said Sprague, a Miniconjou Lakota. “Even though men were seen as the lawgiver, they were displaced in alcohol and had lost purpose in life.”
Frozen out of politics, Native women turned to the arts. And it was through quilting circles that they organized themselves, sometimes more effectively than their male representatives, Sprague said.
Following the civil rights and women’s liberation movements, Native women returned to the higher rungs of tribal politics in the mid-1980s. But when they came back, they found a legal system ensnarled in limits on what a tribe can and cannot do.
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Environmentalist Winona LaDuke believes tribes are not poor because they are stupid: They are poor because their resources were taken away.
Similar logic helps explain why tribes often struggle with law enforcement. Tribes know how to police their lands, LaDuke said, because “tribes managed that for thousands of years.”
But specific laws and court rulings have diminished Indian Country’s power to arrest and prosecute criminals. And some in tribal law enforcement say this contributes to higher crime rates and an overall sense of lawlessness.
Lakota teachings say that the creator’s law is the highest law.
Anita Fineday, tribal court chief for the White Earth Indian Reservation in northwestern Minnesota, deals with these kinds of issues every day.
She said the reservation has an annual budget of $1 million for law enforcement. With 9,200 residents to protect, that amounts to about $109 per person. For comparison, the nearby town of Detroit Lakes, population 8,030, devoted $1.3 million to police in 2008, or $157 per person.
Why the tribe does not receive additional funding is paradoxical. Fineday, an Ojibwe, said the federal government would award more if White Earth had criminal jurisdiction over its lands. But a federal law, Public Law 280, took away that authority and handed it to the state in 1953. Minnesota is one of only six states where Public Law 280 applies, but the law affects 51 percent of tribes in the contiguous U.S. and most Alaska Natives.
“It’s a great hindrance to tribal judicial programs,” Fineday said, because it blurs the line between state and tribal responsibilities.
Moreover, the added duty of protecting tribes can strain the manpower and budgets of state and federal authorities, and Native cases can get short shrift.
“There’s often not enough resources at the attorney general’s office to pursue (Native) criminal cases,” summed up Jennifer Bear Eagle, a Lakota attorney at Fredericks Peebles & Morgan, an Omaha law firm specializing in tribal law.
A U.S. Supreme Court decision, Oliphant v. Suquamish Indian Tribe 1978, was another blow to tribal police. It ruled that tribal courts do not have criminal jurisdiction over non-Indians, even if an offense occurs on tribal lands, a ruling that holds today.
Oliphant left many tribes at a loss in terms of policing reservations, some legal experts note, and it put women at greater risk of being abused without consequence.
“It’s a huge problem in tribal communities, where in domestic violence situations the perpetrator is non-Indian,” Bear Eagle said. “The federal government is supposed to step in at that point.” But that often does not happen, she said, because the government is strapped for resources.
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Living without fear
When a Native woman leaves a violent situation, she might run out of the house with nothing but the clothes on her back.
“That’s a very scary situation,” said Asetoyer, the South Dakota advocate for Native women’s health.
Community-based groups, however, can connect victims with shelter, health care and legal aid. And two shelters on South Dakota reservations try to bridge the gaps that can impede Native women’s access to justice.
In 1985, Asetoyer founded her non-profit Native American Women’s Health Education Resource Center. It continues to provide shelter for abuse victims on the Yankton Sioux Reservation.
Another group, Cangleska, helps Oglala Lakota men and women break free from abusive relationships. The Robert Wood Johnson Foundation provided start-up funds, and today, state and federal monies keep the shelter’s doors open for the 800-plus women and children seeking protection yearly.
“Before Cangleska, women on the Pine Ridge Indian Reservation were going to jail seeking shelter from domestic violence,” said Karen Artichoker, the shelter’s former director and an enrolled member of the Oglala Sioux Tribe. “They were hiding in the fields. But then the elders said something had to be done.”
And something was. Cangleska – Lakota for “sacred circle” – pushed for a mandatory arrest law, which became part of the tribe’s penal code in 1995.
Before the law existed, shelter coordinator Norma Rendon said, women were less willing to report abuse.
“The police would look at the woman, bloody and beat, and ask, ‘Are you OK?’” Rendon said. “And she would say, ‘Oh, I’m fine,’” because she did not want to further aggravate her partner.
The mandatory arrest law, however, holds that if an officer believes an assault occurred or could happen, that alone is probable cause for arrest. Artichoker said the law provides some relief from Oliphant because it applies Indians and non-Indians alike.
“(The law) has had a great impact,” Rendon said. “Women are a lot safer, they aren’t afraid to call the police.”
And Asetoyer, whose activism dates to the 1960s with the takeover of Alcatraz, is not afraid to call out IHS over questionable practices.
For example, in 2005, her group reported that not all IHS emergency rooms provided rape kits, or forensic exams, for sexual assault victims. Four years later, the 2009 Congressional omnibus bill dedicated $7.5 million to sexual assault training for IHS hospitals.
Considering that IHS operates 31 hospitals nationwide, $7.5 million is not much, Asetoyer points out. But it is a start.
Now, the non-profit is working on the next step: getting test results into court. It is one thing to supply forensic exams, Asetoyer said. But to convict a perpetrator, a doctor or nurse needs to present evidence in court. One IHS law can stall their testimony, and the resource center wants to change this.
“Why are our health providers exempt from providing evidence that would convict a rapist?” Asetoyer said. “(IHS is) protecting sexual predators by not allowing their examiners to provide evidence in court.”
Thomas Sweeney, director of public affairs for IHS, said the agency could not respond to Asetoyer’s accusations on account of pending legislation that would make IHS testimony more likely.
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The San Francisco Peaks are sacred to the Navajo and Hopi. Their people collect herbs there and consider the peaks essential to their religious practices.
But such traditions have not stopped Arizona Snowbowl from expanding its ski resort, which uses the range’s peaks. And they did not stop a circuit court from siding with the resort.
In August 2009, the Ninth Circuit Court of Appeals decided the resort could use Flagstaff’s wastewater to make artificial snow. Although the wastewater would be treated, Navajo Nation President Joe Shirley likens the practice to flushing a Koran or a Bible down a toilet. Other critics, such as Rebecca Tsosie, agree that spraying wastewater on the peaks would desecrate a hallowed space.
“The Snowbowl case is a bad precedent within the Ninth Circuit,” said Tsosie, a law professor at Arizona State University. It is bad, she said, because it reinforces the ongoing notion that preserving sacred sites is unimportant.
Tsosie, who is of Yaqui descent, is following the resort’s 30-year saga. She attributes this ongoing problem, in part, to a rift between American values and policies.
“The United States, as a democracy, is a pluralism. They all come to the U.S. and they are all equal citizens,” she said. “But this isn’t guiding our decision-making.”
What can result from this rift is cultural appropriation – or cultural lampoonery. Think Big Chief tablets, Land O’Lakes butter maidens and toothy warrior mascots.
For 25 years, Suzan Harjo, a poet and writer, has taken on the cartoonish depictions of Native Americans, as well as the misuse of cultural terms and symbols, such as the Cherokee in “Jeep Cherokee” or the Zia Pueblo sun symbol in the New Mexico state flag.
“Cultural appropriation is a modernization of land grabs,” said Harjo, who is Muscogee and Cheyenne. “The people whose ancestors stole our resources are now taking the things that remain ours.”
She has gone so far as to sue the Patent and Trademark Office for approving the Washington Redskins logo, and her 17-year-old case awaits a Supreme Court ruling. Her case is part of a larger effort dating to the 1970s, beginning with the elimination of Little Red, the University of Oklahoma’s unofficial Indian mascot.
“(Mascots are) one of the last places people can be racist in public,” she said. “In part, Native references in sports is identity theft.”
It is theft, Harjo said, because the preponderance of caricatures has left some Native Americans unsure of who they are.
“There were a lot of ways that Native people were colonized,” she said. “And it became the identity of some Native people. That’s just sad. They identify with a cartoon.”
Kate Quinn, a first-year law student at the University of Nebraska-Lincoln, agrees that cartoonish depictions have warped some people’s ideas about Native Americans.
“When people think of Native Americans, some of them do think of a cartoon,” said Quinn, who is of Sisseton Wapeton Dakota descent. “It rarely crosses some people’s minds that there are Native Americans in law school or in the workplace. Or they think, ‘If I see one, I will know right away’” by the feathers in their hair or their beaded moccasins.
Meanwhile, though much work remains, Harjo’s activism has made a difference. In 1970, when Little Red was scratched from Oklahoma’s sidelines, more than 3,000 teams used Indian mascots. About 900 mascots remain today.
“At some point, you look back and say, ‘It only took that long to get rid of two-thirds of them,” Harjo said. “They’re going to be gone in 30 years and will go by the way of the lawn jockeys.”