From: Bethany R. Berger, Indian Policy and
the Imagined Indian Woman , 14-Fall Kansas Journal of Law and Public
Policy 103-115 (Fall, 2004) (81 Footnotes Omitted)
Twenty-six years after the United States Supreme Court decided Santa
Clara Pueblo v. Martinez, the case continues to generate cries that the
federal government has abandoned Indian women in the name of Indian
culture. This outrage is in part generated by the sense that, as Judith
Resnik puts it, that "the case was an 'easy' one for the Supreme
Court to proclaim its commitment to tribal sovereignty" because it
accorded with federal norms about the treatment of women. In this essay,
I want to disagree and argue that, to the contrary, it was a
particularly hard case -- and not because the justices were such
committed feminists. Rather, the case was a tough one for the Supreme
Court and for non-Indian policymakers because the federal government and
the colonial governments before it had always used the needs of Indian
women as an excuse for erosion of Indian sovereignty. Indian women, by
the common account, needed the federal government to come save them from
drudgery, from sexual slavery, from oppression. But, I will suggest, the
women whose plight called out for European and American protection were
not real women -- instead they were imagined by the colonizers, tailored
to their ideas of gender and culture and their needs in justifying the
colonial project. I hope to show that this tradition not only colors
discussions of the case and the situation of Indian women generally but
may also make it more difficult for tribes to identify and address
practices that do need to be changed.
The first imagined Indian woman in Indian policy was the North American
continent itself. As pictured in this 1580 etching, (Fig. 1) she was
voluptuous, naked, and reclining, representing both the almost sexual
rewards available to those that could conquer her virgin soil and the
need for Europeans to come clothe her in their superior civilization.
Once the Americans began to assert independent claims to North America,
they began to see her as "their" Indian woman, needing defense
against the violations of the Europeans. In 1774, on the eve of the
American Revolution, Paul Revere published this cartoon of America as an
Indian woman defiantly spitting tea back at the British officers seeking
to look up her skirt. (Fig. 2.).
This sexualized perception extended from the land to the people
themselves. In part the qualities ascribed to Indian people, male and
female, were the qualities that European Americans ascribed to their own
women. Portrayals of Indian men as feminized or emasculated by their
improper lifestyles appeared from the earliest reports through the
1800s. More significant was the perception that Indians, like women,
were creatures of nature rather than reason, like women, subject to wild
impulses and passions, and, most importantly, like women, needed
European and American men to protect and guide them. The object of this
guidance, as preached by ministers and military leaders alike, was to
turn them into "men." The absence of women from this last
equation is telling. It reveals both that women were invisible to these
policymakers and that they were intended to remain invisible. If men
assumed their proper role, women would naturally disappear from the
political and economic stage, and become the passive helpmeets that God
and civilization intended.
Indian women, then as now, were much more than the silent companions of
their men. But the reality of Indian women's lives was invisible to the
non-Indians that observed them. James Adair's 1775 History of the
American Indians, for example, is one of the most detailed written
records of the Southeastern tribes during the eighteenth century. He had
lived and traded with the tribes for thirty years and had married a
Chickasaw woman. Despite this, Adair did not recognize that the tribes
he lived among were matrilineal and thus missed the clanship system that
was one of the most important elements of their religion and law. In the
same way, even when women exercised considerable political power,
observers assumed that only men had political authority or property
rights. For example, when a female member of the Sauk tribe protested
against the removal proposed by Major General Edmund Gaines, saying that
women had a right to know of bargains made regarding the lands the women
farmed, he responded that "the president did not send him here to
make treaties with the women, nor to hold council with them!"
The last story points to another deliberate invisibility at work. While
Indian policy from contact through the beginning of this century was
dedicated to turning the "Indian people" into farmers, these
policymakers missed the fact that there already were many Indian
farmers. The problem was that they were all women. For many Indian
communities, including the tribes first encountered by non-Indians such
as the Cherokee, the Iroquois, and the Algonquian Tidewater Tribes of
Virginia, men were responsible for hunting, while women were responsible
for farming. While this division of labor could be consistent with
domination of women, in most tribes, each sex determined appropriate
behavior and controlled the property used within their respective fields
of labor, and each activity was recognized as necessary and important
for the welfare of the tribe. Women's responsibility for agriculture was
thus an important source of power and prestige.
But when European Americans faced these uncomfortable facts, they molded
them to conform to their policy needs. They interpreted the division of
labor with European eyes, through which women's work was distasteful and
inferior, and hunting was the occupation of idle rich. The fact that
women farmed while men hunted was evidence that Indian men were lazy and
despised honest work, and Indian women were abused slaves. Making men
take their proper place in the fields was necessary to free women from
this unnatural drudgery. In the words of Commissioner of Indian Affairs
William Medill, "The most marked change, however, when this
transition takes place is in the condition of the females. She who had
been the drudge and the slave then begins to assume her true position as
an equal; her labor is transferred from the field to her household -- to
the care of her family and children." In the same way, although
rights in land often vested in women and descended through the maternal
line, when treaties, statutes, and government officials allotted land to
"heads of households" they assumed or sometimes insisted that
the heads of household be Indian men.
The civilization project was deemed necessary to save Indian women from
sexual slavery as well. The very first reports of the people of the
Americas dwelled on what they believed to be the inappropriate sexuality
of Indian people. Indians typically wore far less clothing than their
European counterparts, and in some tribes, sex before marriage was not
forbidden. Upon marriage, the family of the groom often provided gifts
to the family of their bride, a practice that was perceived as a form of
prostitution. Marriages could also be terminated with little formality,
and in many tribes husbands could have more than one wife. European and
American settlers saw these practices as very nice for the man, but
degrading to Indian women.
The sexuality of Indian women created both an opportunity and a mission
for the colonizers. The settlers delighted in imagining themselves as
the objects of affection to these half-clothed, lustful women and
believed they could use these affections as a way of gaining access to
Indian people. Hence the persistent fascination of the Pocahontas story.
John Smith may well have invented his story of being saved by
Pocahontas, or at least misunderstood (or misrepresented) what was in
fact a Pamunkey adoption ritual. Even if Smith's account was accurate,
Pocahontas would only have been ten or eleven at the time of the
incident, not the sexually mature young woman she is usually portrayed
as. Although Pocahontas did in fact marry an Englishman, John Rolfe,
some years later, the marriage only occurred after the English had
kidnapped her and held her for ransom for several months. Moreover,
despite the veneer of romance given the story, both her father, Chief
Powhatan, and the Governor of the Virginia Colony, Thomas Hale, appear
to have understood the match as a diplomatic alliance. Nevertheless, the
fictionalized story of Pocahontas' willing choice of an English soldier
over her tribe remains one of the most popular images of Indians in
American culture, refiguring American conquest as voluntary, a
consensual seduction rather than a rape.
Once seduced by the attractions of white men and their superior culture,
Indian women could be saved, introduced to Christianity, and cleansed of
their degrading pasts. Two pictures from the 1830s show the sexual
allure and colonial opportunity presented by Indian women. Robert
Matthew Sully's 1832 painting shows Pocahontas as she is often imagined,
as a voluptuous temptress before her marriage. (Fig. 4.)
It was Pocahontas' marriage and conversion, however, which best fit the
mythology of American nation building. In 1837, the federal government
commissioned the below Baptism of Pocahontas at Jamestown, Virginia,
1613 (Fig. 5), in which she is separated from her naked compatriots,
clothed in the pure white robes of civilization, and illuminated by the
light of her conversion to Christianity. In 1840, the finished tableau
was hung in the Rotunda of the U.S. Capitol where it remains today.
Federal policymakers worked hard to save women from their perceived
sexual exploitation. Several of the "Indian Offenses"
proscribed by the Rules for the Courts of Indian Offenses established by
the federal government in 1883 have to do with these goals. The only
non-criminal duty explicitly given to the Indian judges was the power to
solemnize marriage. Traditional dances were forbidden not only because
they were a sustaining part of the culture the U.S. sought to abolish
but because they were considered "repugnant to common decency and
morality." Polygamy was criminalized, as was paying anything of
value to a woman or her relatives to cohabitate with her. The only
prerequisite for Indian judges was that they not be polygamists.
The infamous federal boarding schools sought to transform Indian women
as well. In 1881, Senator Carl Schurz declared that schools must be
established for Indian girls to teach women to "make the atmosphere
and form the attraction of the home" and "lift up the Indian
women to respect themselves," while Indian commissioner Thomas
Morgan declared that "co-education ... is the surest and perhaps
only way in the which the Indian women can be lifted out of that
position of servility and degradation which most of them now occupy, on
to a plane where their husbands and men generally will treat them with
the same gallantry and respect which is accorded to their more favored
white sisters." The faces of the girls in the pictures below cast
doubt on whether they felt the boarding school experience was lifting
them out of servility and degradation.
ABULAR OR GRAPHIC MATERIAL SET FORTH AT THIS POINT IS NOT DISPLAYABLE
The perception of Indian women as wanton concubines was likely as great
a distortion as that of them as oppressed slaves. Many tribes prohibited
adultery, and the relative ease of obtaining a divorce likely made it
uncommon. Indeed, the punishment for adultery among tribes as different
as the Creek, Sioux and Navajo -- cutting off the offender's nose -- is
one of the more serious abuses of women of which there are credible
reports. The presence of multiple wives, rather than creating a harem in
which the lucky man could luxuriate, might in fact increase the power of
women in the household, particularly as sisters would often marry the
same man. In Navajo households, for example, it appears that husbands,
living as they did with the families of their wives, were subject to
much teasing as lazy in-laws. Given that in many tribes, couples would
move in with the bride's family after marriage, the
"bride-price" paid by the husband's family, rather than a
means of purchasing women and their sexual favors, can more
appropriately be seen as contributions to the support of the new family,
a practice not unlike the dowry that European American families provided
along with their newly married daughters.
In addition, the sexual transgressions the colonizers condemned were
often the result of federal actions rather than the opposite. While
prostitution did exist among Indian tribes, it vastly increased as
brothels sprang up around federal army bases. Abortion surely increased
as the hardships of colonization made women worry about the future of
their children. A military doctor remarked at the high rate of abortion
among the Navajos imprisoned at Fort Sumter, not recognizing that the
women, starving and forced away from their ancestral homelands, did not
wish to bring children into the world that the gods deserted. More
generally, the dislocation and disruption of traditional mores caused by
federal policies likely resulted in more sexual license than it curbed.
The 1928 Meriam Report, for example, noted that among "the younger
educated Indians, no longer influenced by the old tribal domestic life
and morals, the fluidity of Indian custom and divorce may become simply
an opportunity for license."
In addition to the slave and prostitute, there was another imagined
"Indian" woman that motivated policymakers -- the white female
captive. One of the most powerful images in the campaign against the
Indian was that of the delicate white woman at the mercy of the sexually
rapacious savage. Captivity narratives, in which white women recounted
tales of kidnapping and rape at the hands of Indian men, were best-
sellers from colonial times throughout the nineteenth century. (Figs. 8
& 9.) These stories not only confirmed Anglo beliefs in the
brutality and wildness of Indians, but also reinforced the image of
white women as frail and sexually pure.
In reality, Indian women often had more to fear from white men than
white women did from Indians. Treatment of white captives varied both
among tribes and within tribes as needs varied, and there are credible
reports of torture and mistreatment at Indian hands. But there are more
reports remarking on the complete absence of sexual impropriety or
coercion by Indians toward their female captives and willing marriages
of white women to the tribes that had adopted them. While colonial
treaties with Indian tribes often included demands for return of white
captives, many of those "rescued" refused to leave their new
Indian families. Such reports cast doubt on the premise of American
superiority behind the colonial project and might even be modified for
their popular audience. Mary Jemison, for example, who happily remained
with the Senecas after her capture at age 15, wrote of the pleasure of a
woman's life among them and the kindness and consideration of the Seneca
man to whom she was married for 50 years. But in reprints of her memoir,
material was added to make her husband into a brutal killer. In the same
period, the colonists were capturing and enslaving whole Indian villages
without any intention of incorporating them into their communities.
Again and again, however, non-Indians rode to the rescue of women that
existed only in their imaginations. While Julia Martinez was a real
woman who sought to change the membership ordinance that excluded her
children before her lawyers ever got involved, I want to argue that
similar factors may be at work in reactions to the Martinez case.
First, as discussed above, the position of the Martinezes has been
understood largely according to Western priorities. The Martinez
children participated fully in the religious and cultural life of the
Santa Clara Pueblo, which perhaps even more than for most tribes, has
long been the most important kind of membership in a Pueblo community.
Both Julia Martinez and her Navajo husband Myles remained affiliated
with the Santa Clara Pueblo until their deaths in 2000 and 2001,
respectively, and several of their children still live there. While
today increased tribal revenue with the advent of casino gaming may
exacerbate the differences between those formally enrolled and those
not, the most severe hardship faced by the Martinez children came, not
at the hands of the tribal government, but from the Indian Health
Service, which denied the children medical care for lack of tribal
enrollment. This problem, however, was resolved in 1968, long before the
case was filed, when the Bureau of Indian Affairs gave the Martinezes
Indian census numbers. But the indicia of membership that were familiar
and valued in Anglo-American society, voting and citizenship rights in
the government established at federal urging in 1935, were far more
visible and important to the non-Pueblo judges.
Another similarity is the reaction of non-Indians to the case. There is
some evidence that the case got to the Supreme Court only because it
involved protection of women. Several previous cases had challenged
membership ordinances that relied on percentage of Indian blood. If the
equal protection provisions of the Indian Civil Rights Act (ICRA) were
enforced in the same way as those in the U.S. Constitution, these
ordinances would be far more offensive, since racial classifications are
entitled to strict scrutiny, while gender-based ones receive only
heightened scrutiny. But the circuit courts, even the Tenth Circuit that
struck down the Santa Clara Pueblo ordinance, had little trouble
upholding these membership requirements. Before the passage of the ICRA,
moreover, the New York state courts had, with little hand-wringing,
repeatedly upheld Iroquois laws providing that children could only
inherit tribal membership through their mothers. In fact, it appears
that among Indian Reorganization Act membership laws, ordinances that
exclude the children of male tribal members with non-members, while
admitting all children of female members, are more common than those
like the Santa Clara ordinance. None of these ordinances, however,
generates publicity or concern similar to that attending the Santa Clara
Pueblo law. It takes a case that calls upon the courts in their role as
protectors of Indian women to do that.
Another reason the Martinez question case may have been, and remains,
particularly troubling is because it clashed with another imagined
Indian woman that had begun to dominate the public imagination -- the
Indian woman that was always powerful and equal, whose suffering is only
at the hands of Euro-American oppressors. The current Pocahontas, as
incarnated by Walt Disney, may stand for this Indian woman. Wasp-waisted
and mini-skirted, this Pocahontas shares the exoticized sexuality of
earlier images, but she is also a woman of power and independence,
mistress of the natural world.
This imagined Indian woman is a necessary correction to past images of
Indian women as exploited drudges and does much to help non-tribal
people come to terms with the unfamiliar power women had in tribal
communities. But this modern imagined Indian woman also poses risks to
tribes. No culture is perfect. Some tribal practices regarding women
were troubling by any standard, and even where tribal traditions
promoted gender equality, modern iterations of them may not. Accepting
without question that practices dubbed "traditional" promote
gender equality may make it harder for tribal communities to move beyond
this imagined Indian woman to address problems within their own
communities. In her detailed examination of the Peacemaker Courts of the
Navajo Nation, for example, Donna Coker found that the emphasis on the
traditional practice of "talking through" problems to repair
relationships led some Peacemakers to favor maintenance even of abusive
relationships or to encourage women to see the abuse as mutual even when
one spouse was being seriously injured and the other simply resented a
perceived lack of respect. One Peacemaker, moreover, used her
understanding of the Navajo Changing Woman story to say that domestic
violence occurred because women assumed men's roles by going out to work
and neglecting their duties at home. While these practices were neither
universal nor necessary results of Navajo tradition, uncritical
assumptions that because a practice has been labeled traditional it
necessarily promotes gender equality may have allowed them to persist.
Recent experiments by the Canadian government with "sentencing
circles" intended to incorporate First Nations justice practices
into sentencing of their members have also been critiqued for casting
the victim and as responsible for assault or domestic abuse and seeking
to repair relationships in which women are in danger. These experiments
are particularly problematic because, unlike Navajo peacemaker courts,
they are initiated and controlled by outsiders to the community, members
of the Canadian government, based on a vague and inaccurate idea of
traditional Inuit justice. But the circles have been relatively immune
from critique because
[B]y labeling them in some way as belonging within Inuit culture,
there appears to be reluctance on the part of non-Inuit working within
the justice system or within government to scrutinize these
alternatives. This results in a "hands-off" approach.
Ironically, these alternatives are identified and perceived to be
mechanisms of self government and therefore beyond the scrutiny of other
levels of government or the judiciary.
The fear within tribal communities of federal deprivation of sovereignty
may also stymie internal critique. Outsider pressure thus may hinder the
tribal process of ensuring that ideals of equal respect for the sexes
are reflected in tribal practices. There is some evidence that the
attack on the Santa Clara Pueblo's right to enact the law only
strengthened the resolve of the community to justify and cling to it.
Paul Tafoya was Governor of Santa Clara Pueblo at the time of the trial
and testified that the ordinance was "the only way we can protect
and preserve our culture." Since then, he has become a leader in
the movement to change the ordinance, arguing in 1997, "[i]t has
caused suffering everywhere. This is not the Indian way of doing
things." But twenty-five years later, the membership ordinance
remains.
The persistence of the Santa Clara Pueblo ordinance can be contrasted
with that of another Pueblo Tribe, the Hopi Tribe in neighboring
Arizona. The Indian Reorganization Act of the Hopi Tribe Constitution
provided that children of Hopi mothers were eligible for automatic
enrollment, while those whose mothers were not Hopi had to seek approval
for membership from the tribal council. In 1993, however, the tribe
amended the constitution to provide that all those with one-quarter Hopi
or Tewa ancestry were eligible for membership. While one might try to
explain the difference as evidence of the greater power of Hopi men to
amend a law that disadvantaged their offspring, the amendment, along
with the broader constitutional reform of which it was part, was the
initiative of a Hopi woman. The current effort to change the Santa Clara
Pueblo law, moreover, is lead by Santa Claran men as much as it is by
women. The more plausible explanation for the difference between the two
tribes is that the process of defending the Santa Claran ordinance and
the continuous scrutiny it has received since the 1970s have identified
support for the law with support for sovereignty, making the law more
resistant to change from within.
The lesson from all of this is that while non-Indians are particularly
moved to save Indian women from their oppression, they are also
particularly blind to the actual causes of that oppression. These two
characteristics are a dangerous combination, resulting in actions that,
even when well-meaning, may only increase the difficulty of women's
lives. There is no easy way out of this dilemma. Culture cannot be a
shield for a thorough examination of the way tribal practices affect
women. But neither will outside courts and legislators provide adequate
fora for voicing and addressing these practices. Indeed, the Santa Clara
Pueblo experience suggests that appeal to outside authorities may shut
this discussion down, by casting protests against discrimination as
attacks on sovereignty, rather than demands for equal participation
within the sovereign community. The result is to discourage both the
demands and receptivity to them. Meaningful change must occur instead
through the hard work of ensuring that tribal communities have the power
and resources to hear and respond to demands for reform, and that
members of those communities have the ability and willingness to
articulate their demands. Ensuring security for tribal sovereignty,
rather than threatening its erosion, may be more productive in enabling
women to improve their own lives.
[a1]. Professor Berger is Assistant Professor of Law at Wayne State
University. She is a graduate of Wesleyan University and Yale Law
School..
[1]. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).
|
