Today at noon, artist Jaime Black, creator of The REDress Project, will perform along the Riverwalk at the museum in...

Posted by Smithsonian's National Museum of the American Indian on Thursday, March 21, 2019
National Museum of the American Indian: The REDress Project

'What she say, it be law': Tribes protected their women before being stripped of sovereignty

By Acee Agoyo

WASHINGTON, D.C. -- As Democrats in Congress attempt to expand the tribal jurisdiction provisions of the Violence Against Women Act, Native women are changing the narrative surrounding efforts to secure safety for their sisters.

The 2013 version of VAWA recognized the "inherent" authority of tribes to arrest, prosecute and sentence non-Indians who abuse their partners. The law represented the first significant rollback of a controversial U.S. Supreme Court decision, known as Oliphant v. Suquamish Indian Tribe, that stripped tribes of their sovereignty.

But the Native women who secured the landmark provisions in VAWA are finding their hard work under attack, six years after they came to Capitol Hill to put a personal face to the struggles seen across Indian Country. Republicans are once again questioning whether tribes should be able to punish non-Indians despite data showing they are responsible for committing most of the offenses.

"We must continue to fight for basic protections," Rep. Deb Haaland (D-New Mexico), who is one of the first two Native women in Congress, said in a video message at the Safety for Our Sisters symposium last Thursday.

As part of that effort, advocates are chipping away at depictions of tribal government that are rooted in stereotypes, ignorance and, in some cases, outright racism. Sarah Deer, a citizen of the Muscogee (Creek) Nation whose groundbreaking work won her a prestigious "genius grant", said Native women must continue to share the truth about their suffering at the hands of outsiders.

National Museum of the American Indian: Safety for Our Sisters: Ending Violence Against Native Women [Part 1] | [Part 2] | [Part 3]

"The history is brutal, the history is uncomfortable," Deer said at the symposium, which was hosted by the National Museum of the American Indian just down the hill from the U.S. Capitol where the GOP attack on VAWA took place this month.

"But," she added, "we're still here. Native women will always be here."

As part of her research, Deer discovered a Muscogee Nation law that highlighted the importance of a woman's standing in matrilineal Creek society. It was enacted in 1824 -- just as the United States was about to force the tribe out of its homelands -- and it declared a simple truth.

Anyone who violated a woman would be punished in accordance to the woman's wishes, the tribe declared. In other words, "what she say, it be law."

"Now, I know that didn't come from the state code," said Deer. "I know it didn't come from federal codes. That had to come from our traditions -- that a woman would be honored in a way to understand that they believed her, that they honored her and that they abided by her wishes."

Native women rallied at the U.S. Supreme Court on December 7, 2015, as the justices heard arguments in a tribal jurisdiction case. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Mary Kathryn Nagle, a playwright and attorney who has been working to undo Oliphant, discovered that her tribe also enacted similar protections. In 1825, again, right before removal, the the Cherokee Nation, asserted jurisdiction over anyone who committed violence against a woman.

Such crimes against women were considered so serious in Cherokee matrilineal society that a third offense could be punished by death, according to Nagle's research. The language tribal leaders chose in enacting the law -- it extends to "any person or persons" regardless of race or nationhood -- shows how they felt about their own sovereignty, she said.

"Tribal jurisdiction over non-Indians isn't unconstitutional," Nagle said, responding directly to the Republican doubts about VAWA.

"It's just pre-constitutional," she said to applause.

The existence of the Creek and Cherokee laws strikes directly at the Supreme Court's decision in Oliphant. Writing for the majority, the late chief justice William Rehnquist simply declared -- without a whole lot of evidence -- that most tribes didn't function as governments.

"Until the middle of this century, few Indian tribes maintained any semblance of a formal court system," Rehnquist wrote in the 1978 ruling. To back up that statement, he cited a federal report that had been written in 1834, after the genocidal removal of the two tribes was complete.

Indianz.Com on SoundCloud: U.S. Supreme Court - Oliphant v. Suquamish Indian Tribe

Though the opinion brought up a 1830 treaty with the Choctaw Nation that Rehnquist said reflected the tribe's "sophisticated" government, the court essentially boiled the case down to one issue. Tribal jurisdiction over non-Indians -- in this situation, a non-Indian man who assaulted a tribal police officer in an allegedly intoxicated rage -- is simply "inconsistent" with their status as "conquered and dependent" nations within the U.S., the 6-2 decision stated.

Despite the seemingly thin basis of the ruling, Oliphant remains precedent. And while the 2013 version of VAWA overturns a small portion of it, the Supreme Court has yet to confront its role in perpetuating violence against American Indian and Alaska Native women, advocates said at the symposium.

"We have not had our Brown v. Board of Education that overturns our Plessy v. Ferguson," Nagle said, referring to the manner in which the Supreme Court eventually addressed the racist system of segregation.

So "how do we change the laws?" she asked. "You have to change the narrative."

That narrative is becoming increasingly important as the U.S. House of Representatives takes up VAWA. H.R.1585, the Violence Against Women Reauthorization Act, recognizes tribal jurisdiction over non-Indians who engage in dating violence, sex trafficking and who commit crimes against tribal law enforcement. Title IX of the bill also includes provisions to address the crisis of missing and murdered indigenous women.

"It's really a story about taking back sovereignty over our bodies, over the land," said Jaime Black, a Métis artist who launched The REDress Project in Canada almost 10 years ago to draw attention to the issue.

By hanging empty red dresses at various locations, Black said Native communities are getting a chance to share the truths about loved ones who have gone missing or have been murdered. She brought her project to the U.S. for the first time to the NMAI on the National Mall, where she staged a performance before the symposium.

"It's really a call to action," Black said. "We're in a war. We've been at war since settlers came to Turtle Island."

Indianz.Com on SoundCloud: Debate on anti-tribal jurisdiction amendment

For Cherrah Giles, a citizen of the Muscogee (Creek) Nation, the struggle comes close to home. As a girl, she suffered abuse at the hands of a close relative and, later, as a young wife and mother.

"I'm one of the few that got out of my situation," said Giles, who now uses her position as chair of the National Indigenous Women's Resource Center to advocate for others in need. "I'm one of the few that is still here."

"You've heard some of stories today about the missing and murdered," she continued. "I don't want that to be my next statistic."

With H.R.1585 moving toward a vote on the House floor, Giles called on Native women and advocates to share their stories with Congress. By doing so, she said they are "turning all that pain, turning all that hurt and shame" into something positive.

The House Committee on Rules anticipates meeting next week to prepare the bill for that final vote. As part of the process, amendments to the bill, including ones that could potentially undo the tribal jurisdiction provisions, are due by Thursday.

H.R.1585 boasts more than 100 co-sponsors, including Rep. Haaland, who is a citizen of the Pueblo of Laguna. But only one -- Rep. Brian Fitzpatrick (R-Pennsylvania) -- is Republican.

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