Law of the LandAn Interview with Legal Scholar and MacArthur Genius Sarah Deer

The statistics are atrocious. Native American women are 2.5 times more likely to be sexually assaulted than other women in the United States. At least 67 percent of Native women who report sexual assault say that their assailants were non-Native men. In Canada, over 1,200 Native women have gone missing or been murdered over the last three decades, a stunning statistic that the government has done little to improve.

Native nations have their own tribal court systems, which are separate from state and federal courts in the rest of the United States. Until recently, however, tribal courts have lacked the power to prosecute non-Native people for crimes committed on Native lands. Considering the rampant violence by non-Native men against Native women, this has often meant that sexual and gender violence goes unaddressed.

For years, legal scholar Sarah Deer has documented ways in which violence against Native women has been overlooked by tribal courts and ignored by state and federal governments while pushing for stronger responses to this violence. In 2007, she spearheaded the report “Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA” for Amnesty International, detailing both the legal shortcomings and the hurdles Native women face when assaulted. Last fall, she received a huge boost to her work when she was awarded a 2014 MacArthur Fellowship, which gives her a no-strings-attached stipend of $625,000 to pursue her work for the next five years. 

Deer is currently a law professor at the William Mitchell College of Law in St. Paul, Minnesota, the codirector of the school’s Indian Law Clinic, and a citizen of the Muscogee (Creek) Nation of Oklahoma. 

Why are Native women particularly at risk for sexual violence? What’s going on in American culture that has led to them being more vulnerable?

I look at two prongs to this crisis, one of which is historical context. The rape of Native women has been embedded in America from the get-go. There’s never been an intervention for it on a formal level, so it’s common because of that colonial violence that targets gender in a sinister way.

But probably more important in a contemporary setting, and I’m biased because I’m an attorney, is the broken legal system that doesn’t protect Native women. Whenever you don’t protect a population, they become targets. So I focus my work on the legal structure that plays a significant role, although certainly not the only role, in explaining these statistics.

What are the distinctions between tribal courts and U.S. courts? How does this distinction impact how violence against women is treated for Native women?

It would take me a semester to answer that. Let me try to oversimplify it—and it is grossly oversimplified in this context: Tribal courts often struggle to respond to crimes—sometimes because they are legally restricted from responding and often because they don’t have the resources to respond. So when a crime happens on a land that is identified as “Indian Country,” which includes reservations, victims are depending on a foreign government [that is, the United States government] to respond. In a lot of cases it’s the feds or the state. We know, as feminists, that the state hasn’t done a great job of responding to gender violence. So when you report crime, there’s no system to respond: The tribes don’t have the authority to respond and the state or federal government that does have authority may not be present. 

What’s important to keep in mind when thinking about violence against Native women? How does this differ from violence against white women or Black women or Latina women or any women who are not Native?

Certainly, trauma has no racial barrier. If you’re not Native, try to imagine yourself in this situation. You’ve been sexually abused as a child and perhaps sexually assaulted as a teenager. You also know that, in your world, in your universe, this happened to your mother, and your grandmother, and your great-grandmother, and your great-great-grandmother, and your sister and your cousins and your aunties. And that nothing was ever done for any of those people. No justice. Try to imagine that as a reality. 

It’s not as though I want to compare and say that white women don’t suffer trauma the way that Native women do or try to put a hierarchy on who hurts more, but when you try to imagine yourself in that world, which is a very real world for most Native women, there’s a different texture to the trauma. As a survivor myself, I never want to be in a position of saying, “Well, you don’t really know what it’s like to be a trauma survivor because you’re not Native.” But it’s a different depth or texture to the trauma because of that historical context.

What have you seen in the ways that media covers—or doesn’t cover—violence against Native women? How does it compare to its coverage of violence against other women of color? 

It’s a simple absence or a void, by and large. The image of Native people is already so dysfunctional—that we’re poor and alcoholics and drug addicts and don’t hold down jobs and can’t finish school. All of that is already a stereotype of Native people, so a lot of times, I think tribes are really closed off and would prefer not to have this kind of media coverage. There are strong parallels between Native women in Canada and in the United States. 

There’s someone who did an empirical poll of media coverage in Canada about Native women and just found that there’s a qualitative difference when Native women are mentioned. They’re always associated with drug use and homelessness and prostitution—they’re rarely portrayed as an innocent victim attacked by a stranger. It’s very much connected to a sort of second-class citizenship that you see in Canadian media where the descriptions of these horrible things that happen to Native women are always accompanied by “But she was a prostitute,” or “But she was a drug addict,” or “But she was homeless.”

You were behind the passage of the Tribal Law and Order Act of 2010 and the 2013 reauthorization of the Violence Against Women Act (VAWA), enabling tribal courts to prosecute non-Native people. Can you talk more about both pieces of legislation? How do they work in terms of prosecution vs. actual justice for the people who are harmed?

I was one of many people behind the passage of the laws. I was certainly not alone. The Tribal Law and Order Act of 2010 raised the cap for sentencing. Since 1968, the federal government had said to tribes, “You do not have the authority to sentence someone to more than a year for any crime, whether it be homicide or burglary or anything in between.” One of the challenges in prosecuting a sex crime is the penalty. I fully admit and acknowledge that jails are not really the answer in the long run, but there are some really dangerous people out there. So when you’re looking at the kind of resources it takes to try a case and convict somebody, knowing that the ultimate outcome is going to be a year, from the tribal perspective, you may not have the resources to devote to something like that. The Tribal Law and Order Act raised the cap to three years, for a total of nine years for stacked offenses. 

It might make a difference for some victims. Thinking of someone coming back after a year, as opposed to three years, might make a profound difference for some victims in terms of their feelings of comfort, safety, and trust in the community.

In 1978, the Supreme Court ruled that tribes could not prosecute non-Indians. So what VAWA did was reverse that decision—in part. It only applies to domestic violence or cases in which the victim and the perpetrator have or had an intimate partner relationship. That’s it. That’s the only non-Indian that tribes have the authority to prosecute. If it’s an acquaintance rape, or friend of a friend, or even a friend that does the rape, the tribe doesn’t have the authority to prosecute that person. It’s a limited fix that applies only to cases of domestic violence. Again, it’s often tied up in resources. In theory, we can do more to protect women, but the reality is that if you don’t have the finances to fund the prosecutor’s office or a tribal court, then the theoretical jurisdiction is practically meaningless. We’ve got some improvements, but there’s a long way to go.

In the non-tribal court system, we see a pattern of certain people—mostly people of color—being prosecuted more for the same offenses than white people. Is there a fear that the Tribal Law and Order Act might lead to more prosecution or more incarceration of Native people than, say, would otherwise happen? Is there a fear that this could then be used to incarcerate more people, especially people who are seen as undesirable? 

Absolutely. There’s a really tenuous walk that tribal leaders are going to have to walk now because is that really what the answer is? To prosecute our own people in tribal court and lock them up just like the white system does? With over 560 tribes, there’s going to be different needs and solutions for different communities. What’s important about the changes is that they’re optional. Tribes are not under any obligation to exercise the jurisdiction that has been returned to them. If a tribal community says, “Incarceration is not right for our community,” they don’t have to exercise that jurisdiction. Different options are available. It’s now up to tribal communities to decide whether or not they want to take advantage of this jurisdiction. 

From a feminist perspective, frankly, a lot of times, men in power say, “Oh, we can’t do anything about that crime because the feds won’t let us,” or “Uncle Sam has told us that we don’t have this power.” As Native women, we’re tired of that answer and we’re getting the power restored. It’s going to be valuable for Native women to say, “Look, we’re getting the jurisdiction restored. Now the tribe needs to make this issue a priority.”
Maybe when we make this a priority, we’re not going to incarcerate every single person that we can prosecute, but we have the responsibility to take action now. There are no more excuses regarding whether or not we have the authority. 

Tell me more about the histories of Natives’ precolonial justice system. In a couple of interviews you’ve done and the Amnesty report that you coauthored, you said that violence against women wasn’t as prevalent before the colonial conquest but also that it was dealt with quickly. Can you tell me more about what that looked like and how it was dealt with under these systems?

For 10,000 years, up until the late 1800s, if a crime happened in the community, the tribes handled it. There wasn’t any other government saying, “You can’t do this,” or “You can only do these things.” It’s hard to give you a definitive picture of what response there may have been to precolonial domestic violence, but we do have some clues. We know that in tribal communities, rape and sexual abuse were so rare that there isn’t a word for them. So if you try to figure out the word for “rape” in the Ho-Chunk language, linguists will say, “There actually isn’t a word that describes that particular behavior.” So that’s one clue. 

When we look at oral history and contact literature (by that I mean [accounts by] the first white people to encounter a tribal community), we see that if there was a crime like this, if someone violated the spirit of a child or a woman, you could face the death penalty. There were executions for child abuse, rape, or domestic violence in some tribes. I’m not an advocate of the death penalty, so it’s not so much that I’m saying we need to bring back those old ways and start killing child abusers, but it tells us something about the respect of the victim—[that their safety] was the A-1 priority. We don’t want people in our community hurting and abusing the vulnerable. So that’s why there was such a swift reaction and sometimes it was the ultimate reaction. When we look at those facts and those sorts of values and we think about 2014 and what we want to do now, we can revitalize that respect for victims and put victims’ safety at the forefront of our judicial systems today. That’s something that the white system has really struggled with and still does a very poor job at. 

Those are the kinds of things that I’m thinking about. It’s not necessarily, “Let’s do this to rapists,” but “Let’s construct our contemporary system in a way that acknowledges and honors our respect for people who are harmed.” That might look different in different communities. 

In an interview with Feministing, one of your ideas was to put together a panel of elders and grandmothers in the community who could help counsel and correct the behavior of people who are abusive. I really love this idea: that way it’s not just like you go and spend three years sitting in a cell and then you come out. I’m curious—what historical precedents have you found? Are there contemporary models that exist or are starting to exist?

The panel approach is something that I hear more and more tribes are doing. It is connected to traditional ways of governing. It’s being used more often in juvenile cases; a lot of tribes, rather than incarcerate juveniles who commit violent acts, bestow sanctions from a panel of experts in the community. A lot of that kind of work is very much tied to victim safety because it’s often about “What can you do to make this right? What are the things you can do as an offender to bring that victim and her family back to the place where they need to be?” It’s very restitution based. 

My critique is, if you have a really violent offender, a really abusive person that really has no perspective on their behavior, they can actually manipulate that system to do more harm. So it has to be done very carefully, but these panels of elders and traditional people are something we can’t do in the white system. You can’t put together a panel of local priests and rabbis to sanction somebody. But tribes are not necessarily secular governments, so they can bring spirituality, tradition, and ceremony into their judicial system. Sometimes those things can be extremely powerful and effective.

What does receiving a MacArthur Fellowship mean in terms of both recognizing the issue of violence against Native women and your own personal work?

Even though a few months have passed, it’s still a bit overwhelming. The phone call certainly signaled a change in my profile. I’m going to continue getting press requests and opportunities to participate in amplifying the voices of Native women. But I also have to think really critically about the time that I want to spend thinking and cultivating a new project. I’d like to spend some time in Oklahoma studying Muscogee, the tribal language that I’m learning. 

One of the things that we don’t know enough about is how Native feminism [manifests], especially in cultures that have been largely assimilated and Christianized. I really want to write about that and about being a Native woman, a Muscogee Native woman from a tribe in Oklahoma who is a feminist activist. The MacArthur Fellowship allowed me to believe that was a valuable pursuit. 

The MacArthur Foundation has not given a lot of these fellowships to Native people; there have only been a handful, so I certainly feel pressured to represent [laughs]. But it’s that luxury of not feeling pressured to perform, and that’s really what the fellowship offers—that creativity, the buffer zone that you need to think about new things. 

What should readers be on the lookout for?

I’m doing speaking engagements at a variety of feminist events. The biggest honor is the invitation to return to my alma mater, the University of Kansas, for their February Daughters event. The February Sisters were the radical group of women at the University of Kansas who took over the administration building in the 1970s to demand birth control and childcare on campus. Every year, the women’s studies department has an event to commemorate the February Sisters, to honor them and to remember all the sacrifices that they made. It’s called February Daughters, although, by now, it’s probably “February Granddaughters.” They asked me to be the keynote speaker. So, even though I’m going home, it’s on a platform that I never expected to be on. 

And then my book—it’s tentatively titled Sovereignty of the Soul, and is slated to come out in fall 2015. I just sent the manuscript a couple of hours ago. And stay tuned—there’s always something happening. 

by Victoria Law
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Victoria Law is a voracious reader and freelance writer who frequently writes about gender, incarceration and resistance. She is also the author of Resistance Behind Bars: The Struggles of Incarcerated Women

This article was published in Law & Order Issue #66 | Spring 2015

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1 Comment Has Been Posted

Thank you.

"Whenever you don’t protect a population, they become targets." True words, here. I am glad that you are here speaking on behalf of Native American women. Having read, reviewed, and written many true crime pieces, I've found that the crimes against Native American women, American eskimos (I do not know about other countries), and American illegal prostitutes are often over-looked and are shown a lack of concern like no other population I can think of. It's disheartening after all these years to know it's barely changed; however, I have faith the tide is slowly changing thanks to people like Sarah Deer and the spotlighting of these serious and touching efforts by writers such as Victoria Law (and of course, Bitch has got to be mentioned here!). ~Teraisa

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