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Bethany R. Berger

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.


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).


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