Indigenous Feminist Pedagogy Disorienting Whiteness as Disappearance: Passage of the Violence Against Women Act of 2013

Item Type text; Electronic Dissertation

Authors Bable, Lori

Citation Bable, Lori. (2020). Indigenous Feminist Pedagogy Disorienting Whiteness as Disappearance: Passage of the Violence Against Women Act of 2013 (Doctoral dissertation, University of Arizona, Tucson, USA).

Publisher The University of Arizona.

Rights Copyright © is held by the author. Digital access to this material is made possible by the University Libraries, University of Arizona. Further transmission, reproduction, presentation (such as public display or performance) of protected items is prohibited except with permission of the author.

Download date 27/09/2021 10:49:16

Link to Item http://hdl.handle.net/10150/656816

INDIGENOUS FEMINIST PEDAGOGY DISORIENTING WHITENESS AS DISAPPEARANCE: PASSAGE OF THE VIOLENCE AGAINST WOMEN ACT OF 2013

by

Dorothy “Lori” Bable

______Copyright © Dorothy L. Bable 2020 Copyright © Lori Bable 2020

A Dissertation Submitted to the Faculty of the

DEPARTMENT OF ENGLISH In Partial Fulfillment for the Requirements For the Degree of

DOCTOR OF PHILOSOPHY In the Graduate College UNIVERSITY OF ARIZONA

2020 2

3

ACKNOWLEDGEMENTS First, I want to acknowledge the citizens of the Tohono O’odham Nation and Pascua Yaqui Tribe on whose homelands the University of Arizona and Tucson exist; without their stewardship and persistence, this dissertation and my graduate education would not have been possible.

Next, I want to thank Amy C. Kimme Hea, Melissa L. Tatum, William P. Simmons, and Jeremy S. Godfrey for being an incredibly supportive, visionary, and encouraging committee who persistently affirmed staying true to my feminist and critical race commitments. While honoring my own vision for this project, my committee mentored, challenged, and encouraged me through difficult as well as “breakthrough” moments of scholarly transformation and development. I am especially grateful to Amy for supporting the idea and eventual formation of a non-traditional, multidisciplinary committee, bringing insights from Rhetoric and Composition, Law, Feminist Pedagogy, and Gender and Women’s Studies. I thank Rebecca Tsosie who helped me develop a solid understanding of property law and federal Indian law, and whose passion and encouragement to critique the legal system was a rare treasure in law school.

A very special thank you to Mary Kathryn Nagle, Deborah Parker, Sarah Deer, Jacqueline Agtuca, Kēhaulani Kauanui, and other Native women scholars, survivors and activists whose transformative insights built the foundation for this project. I would also like to thank Cheryl Harris for her disruptive theoretical framework of whiteness as property, without which the methodology in this project would not be possible.

I also thank Cristina Ramirez, who encouraged me to apply to the UA RCTE Program, without whom I might have never imagined the study of rhetoric as a good fit for my social change aspirations. I am grateful to my friends, family, and colleagues who have supported me throughout this long journey when self-doubt and exhaustion crept in, helping me to know I could persist. Thank you, Camilla Lee, Sally Benson, and Tom Knauer, my Zoom writing partners during the COVID-19 pandemic—I could not have finished without our virtual writing sessions throughout this year. I thank my friend, Rose, for many deep and soulful conversations about racism and white privilege—you earned your PhD right along with me, my dear sister friend. To my family, especially my mom and Michael, who reminded me repeatedly no matter how hard and how long the path seemed that they believed I could do it.

The limited space here is insufficient for me to thank everyone who has supported me in some way, and my gratitude to everyone is beyond rhetorical expression.

4

“Just follow your heart; it has more intelligence than the brain.” ~Donna Joyce Simmons

First, I dedicate this dissertation to my mother, Donna, who taught me love, and to her soul-mother, my great grandmother, Nora “Grancy” Sams. As a daughter of German and Irish immigrants, Grancy survived domestic violence and raised her two children as a single mother during the Great Depression. Her light carries on in my family, and her love keeps alive the realization that as humans, we belong to one another, knowing no one is free until all peoples have equal access to resources.

Second, this dissertation is dedicated to all Native women survivors of domestic and sexual violence. May the hope of ridding the world of all forms of violence amplify until this darkness can no longer exist.

5

TABLE OF CONTENTS

LIST OF TABLES……………………………………………………………………...... 9 ABSTRACT……………………………………………………………………………...10 INTRODUCTION ARTICULATING INDIGENOUS FEMINIST PEDAGOGY…………………………..11 Introduction………….…………………………………………………………...11 VAWA History……...…………………………………………………………...14 Counterstorytelling as Adapted Critical Race Practice..…………………………17 Project Overview………………………………………………………………...29 CHAPTER ONE INDIGENOUS FEMINIST PEDAGOGIES: BUILDING LITERACIES OF STRUCTURAL WHITENESS AS DISAPPEARANCE………………...……………...35 Abstract…………………………………………………………………………………..35 Introduction: Visioning Purpose…………………………………………………36 Awakening to White Privilege and Reproductions of the White Supremacist System……………………………………………………………………………38 Legal Education and Feminist Theory…………………………………………...42 Critically Sovereign Feminist Methodology Enacted as Pedagogical Praxis……46 Situating Critical Race Theory…………………………………………...52 Whiteness as Property……………………………………………………54 Whiteness as Disappearance Extending Critical Race Theory…………..58 How Sovereignty Shapes Critical Race Theory………………………….63 Tribal Critical Race Theory (TribalCrit)……………………………..64 Features of a Critically Sovereign Feminist Methodology………..…67

Movement for the Safety of Native Women……………………………………..77 Conclusion……………………………………………………………………….79

6

CHAPTER TWO WHITENESS AS DISAPPEARANCE IN FEDERAL INDIAN LAW: EPISTEMIC CLOSURE OF “INDIAN” AND ITS IMPACT ON NATIVE WOMEN……………………………………………….………………………………...81 Introduction………….…………………………………………………………...81 Articulations of Whiteness as Disappearance in FIL and Policy………………...84 Marshall Trilogy: Cannons for Construction of Disappearance.………...86 Johnson v. McIntosh: Discovery Doctrine….…………...…….…87 Cherokee Nation v. Georgia: Domestic-Dependent Nations…….90 Worcester v. Georgia: Federal Plenary Power and Extraconstitutional Tribal Nations……………………………….93

Federal Indian Law Policy Eras………………………………………….97 Treaty Making Era…………………………………………….....99 Allotment, Removal, and Reservation Era……………………..100 Reorganization Era……………………………………………...105 Termination Era: Wholesale Disappearance of Tribal Nations...108 Self-Determination Era…………………………………………112

Indian Civil Rights Act……………………………………..114 Indian Child Welfare Act…………………………………...116 Title 25: Creation of Federal Indian Programs……………..117

Modern Series—Theme of Seven Cases: Diminishment of Sovereignty……………………………………………………………..118 Rhetorical Dispossession in Oliphant…………………………………..120 Whiteness as Disappearance as the Logics of Federal Indian Law…………….132 Significance of VAWA 2013 Tribal Provisions………………………………..134 VAWA History…………………………………………………………136 VAWA Tribal Provisions………………………………………………137 Conclusion……………………………………………………………………...140 CHAPTER THREE MARY KATHRYN NAGLE’S SLIVER OF A FULL MOON: PARTICIPATORY PERFORMANCES FOR CRITICAL SOVEREIGNTY CONSCIOUSNESS……………………………………………………………….……141 Introduction………….………………………………………………………….141 7

Play Overview……….………………………………………………………….144 Traditional Legal Conceptions and Sliver’s Reformulation of Time………………………………………………………………………….…149 Fixed Concepts and Fluid Metaphors….……………………………….150 Past and Present: Durational, Living Performances…...……………….168 Time Immemorial: Doubling of Past and Present………………..…168 Present and Past Become One: “History becomes present and present becomes history.”…………………………………………..169 Disrupting the Fixed Concepts of “Indian” and “Indian Country”…172

Spaces Disrupted: Performing for Different Audiences………………………..181 Disorienting Colonized Spaces of Disappearance…………………...…184 Illuminating Legal System Injustices for Top Law Schools……………188 Yale……………………………………………………………...…..190 Harvard…………………………………………………………...…193

Critical Consciousness Raising for Reformulating the Law……………………195 CHAPTER FOUR AMNESTY INTERNATIONAL’S MAZE REPORT: POPULAR EDUCATION REPORTING FOR CRITICAL SOVEREIGNTY CONSCIOUSNESS………………197 Introduction………… ………………………………………………………….197 Native Women’s Rights and International Human Rights Law.……………….207 Overview of Inter-American Court of Human Rights....……………….209 Jessica Lenahan’s Story…..…………………………………………….212 Jessica’s Legal Cases………..……………………………………….…214 Jessica Lenahan’s Inter-American Commission on Human Rights Petition………………………………………………………………….218

2011 United Nations Special Rapporteur Visit to the U.S..…………….224

Maze Report: Popular Education Strategy for Teaching Audiences about Restoration of Tribal Sovereignty to Protect Native Women….……………….225 Two Ways of Knowing: Empirical Data and Applied Felt Theory for Generating Shame…………………………...………………………….227 Legacy of Colonization and Human Rights Violations…..………….…232 8

Remedies for U.S. Human Rights Violations in Indian Country: Tribal Nation Jurisdiction Restoration and Allocation of Federal Resources……………………………………………………………….238

Conclusion…………..………………………………………………………….241

CONCLUSION CRITICALLY SOVEREIGN INDIGENOUS FEMINIST PEDAGOGY: DISORIENTING LITERACIES OF DISAPPEARANCE….……………………….…244 Articulations of Indigenous Feminist Pedagogy….…………………………….244 Future Application of Critically Sovereign Indigenous Feminist Pedagogy………………………….…………………………………………….251 Indigenous Feminist Pedagogy for Building Literacies of Whiteness as Disappearance……………………………………………….………….251 Counterstorytelling for Building Literacies…………………………….252 Broadly Accessible and First-Person Stories in the Living Present.………………………………………………………….253 Speaking Truth, Embodying the Power of Ethos, and Strategically Constructing Identities……………………………………….…255

Limitations of this Project……...……………………………………………….257 No Interviews with Native Women Activists and Storytellers...……….258 Analyses of Case Studies’ Circulation………………………………….260 Indigenous Feminist Pedagogy is Cis-Gender- and Hetero-Centric…....262 Future Research……..………………………………………………………….263 Sliver Interviews with Playwright, Performers/ Participants, and Survivors.....………………………………………………………….…264 Circulation of Case Studies.…………………………………………….265 Conclusion…………..………………………………………………………….266

9

LIST OF TABLES Table 1. Marshall Trilogy…………..……………………...………………………….....86 Table 2. Policy Eras of Federal Indian Law……………………………………………..98 Table 3. Sliver Venues and Location….……………………………………….………..182 Table 4. Sequence of Highly Publicized Human Rights Events Impacting Native Women…………..……………………...……………………………………………….203 Table 5. Criminal Jurisdiction in Indian Country …………………………………..….239 Table 6. Articulations of Critically-Sovereign-Feminist-Methodology-Informed Pedagogies in Case Studies...... ………..…………………………………………….…248

10

ABSTRACT

This project brings together rhetorical theory and law to construct a grounded theory named critically sovereign feminist methodology (CSFM). It draws upon rhetorical theory, legal cases, and the rights of Indigenous women (“Native women,” hereafter, reflecting these activists’ self-identification). It examines literacy activities deployed by various Native women activists related to VAWA 2013 and explores why these activities are invaluable pedagogical tools for future activists and social-change strategists. It does so by adapting a critical race theory approach to illuminate the pedagogical frameworks deployed by these Native women activists in their literacy activities to transform the prior limits placed on Tribal Nations’ inherent sovereignty and characterized by tactics of disappearance. Drawing out principles of a critical feminist pedagogy, this project explicates these features through rhetorical analysis of the play, Sliver of a Full Moon and Amnesty International’s report, “Maze of Injustice: The Failure of the United States to Protect Native Women.” This project also provides the deep historical connection of “Indian” rights and legal cases to contemporary social movements of Indigenous women, offering a framework for import by activists in the areas of law and rhetoric.

11

Introduction Articulating Strategic Indigenous Feminist Pedagogy

“The colonizers saw (and rightly) that as long as women held unquestioned power of such magnitude, attempts at total conquest of the continents were bound to fail. In the centuries since the first attempts at colonization in the early 1500’s, the invaders have exerted every effort to remove Indian women from every position of authority…” ~Paula Gunn Allen1

“Although society’s structures of thought have been constructed by elites out of a universe of possibilities, people reify these structures and clothe them with the illusion of necessity. Law is an essential feature in the illusion of necessity because it embodies and reinforces ideological assumptions about human relations which people accept as natural or immutable.” ~Kimberlė Williams Crenshaw2

I. Introduction

This project is, above all, a story about the radical strategies and innovative problem solving of Native women resulting in the greatest restoration of Tribal Nation sovereignty in United States history: Violence Against Women Act of 2013 tribal provisions (VAWA 2013). 3 While admittedly, VAWA 2013 represents an incremental restoration of sovereignty for federally recognized tribes’ criminal jurisdiction over non-

1 Paula Gunn Allen, The Sacred Hoop: Recovering the Feminine in American Indian Traditions (1992). 2 Kimberlė Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, in Critical Race Theory: The Key Writings that Formed the Movement 103, 108 (1995). 3 Throughout this project, reference hereinafter to “VAWA 2013” refers only to the tribal provisions passed for the first time in 2013 and currently up for reauthorization in H.R. 1585 introduced March 19, 2019. This new bill would add tribal protections relating to obstruction of justice, sexual violence, sex trafficking, stalking and assault on law enforcement or correction officers. H.R.1585 - Violence Against Women Reauthorization Act of 2019, Congress.gov (Mar. 25, 2019), https://www.congress.gov/bill/116th- congress/house- bill/1585?q=%7B%22search%22%3A%5B%22violence+against+women+reauthorization+act%22%5D%7 D&s=3&r=1. As of this writing, it has yet to be passed by Congress. In the words of Senator Tom Udall, “It is appalling that Senate Republican leadership is still refusing to reauthorize VAWA—a proven program that protects women and families in New Mexico and across the country. While this bill sits in the majority leader’s legislative graveyard, the crisis of Missing and Murdered Indigenous Women is devastating Native families in New Mexico and across the country.” Violence Against Women Act reauthorization is needed to protect women in New Mexico and across the U.S., United States Senate Committee on Indian Affairs Nov. 19, 2019 (Sept. 20, 2020 at 8:48 AM), https://www.indian.senate.gov/news/press-release/photo-udall-joins- senate-democrats-introduce-vawa-reauthorization-bill-strong. 12

Indians, it’s the only restoration that has occurred since the founding of the U.S.4 The resilience, persistence, and tactical decisions of Native women activists 5 over the course of more than four decades led to the passage of VAWA 2013. By drawing into focus the expert knowledge, skills, and awareness of Native women activists about the complex legal issues impacting their sovereignty, I hope to deepen collective awareness about these strategies for future application.

While research in rhetoric has addressed the constitutive power of language in public discourses, 6 there is nearly no scholarship at the intersections of rhetoric and law examining the mitigating role of Native women’s facilitation of learning outside of

4 Only 574 of 1033 tribes are federally recognized, a prolonged application process requiring upwards of $1M. See David E. Wilkins and Heidi Kiiwetinepinesiik Stark, American Indian Politics and the American Political System 24 - 33 (4th Ed., Rowman & Littlefield 2018) (2001). 5 This project primarily uses the phrase “Native women activists” instead of “Indigenous feminist activists” because the former seems to align better with these activists’ own choices for self-identification. This decision is based in part on the use of “Native women” throughout the Jaqueline Agtuca’s book, “Safety for Native Women: VAWA and American Indian Tribes.” Agtuca primarily uses the phrase “Native women” to describe activists participating in the movement. Further, the survivors who share their stories in Mary Kathryn Nagle’s play “Sliver of a Full Moon” also self-refer in this way. Play reading by playwright Mary Kathryn Nagle on Nov. 19, 2015, Sliver of a Full Moon, Harvard Radcliffe Center (May 31, 2020, 8:11 PM), https://www.youtube.com/watch?v=YhTqY7PAZ0I. However, there is no single agreed upon term; this project sometimes uses alternative articulations based on the context. It’s also important to mention that the disruptive strategies and life-affirming processes analyzed here are also in alignment with the orientations and processes of third wave feminism, and insofar as these strategies disorient racism and structural oppression rooted in patriarchy, it is my own opinion they constitute feminist activism. However, feminism as a response to patriarchy arose upon occupation of the Americas; it’s not Indigenous. See infra note 7. That is, feminism is a response to patriarchal structures embedded in colonization. Further, the use of the word “Indigenous” in international human rights law recognizes the sovereignty of Tribal Nations beyond the authority of the U.S. government. I have elected not to impose these other frameworks upon this movement despite the potential similarities and benefits of doing so because I think honoring these activists’ self-selected terms is most important. 6 Phyllis Mentzell Ryder, Rhetorics for Community Action Public Writing and Writing Publics (2011); Celeste Michelle Condit, In Praise of Eloquent Diversity: Gender and Rhetoric as Public Persuasion, In Walking and Talking Feminist Rhetorics 381-397 (2010); Michel Foucault. The Archaeology of Knowledge; and the Discourse on Language (Alan Sheridan Trans., 1972); Scott R. Lyons, Rhetorical Sovereignty: What do American Indians Want from Writing?, 51:3 College Composition and Communication 447-468 (2000). Elizabeth A. Fay, Eminent Rhetoric: Language, Gender, and Cultural Tropes (1994). Deborah Tannen, Gender and Discourse (1994); Leslie Di Mare, Rhetoric and Women: The Private and Public Spheres, In Constructing and Reconstructing Gender: The Links Among Communication, Language, and Gender (1992); Sonja Foss, Rhetorical Criticism (1989). 13

politically and legally privileged discourse communities, a democratized learning of popular education via feminist pedagogy.7 This project examines literacy activities deployed by various Native women activists related to VAWA 2013 that are invaluable pedagogical tools for future activists and social change strategists. It does so by adapting a Critical Race Theory (CRT) approach to illuminate the pedagogical frameworks deployed by these Native women activists in their various literacy activities to transform the prior limits placed on Tribal Nations’ inherent sovereignty. 8

Identities ascribed in the genres of legal opinions, federal legislation, and congressional hearings are fixed categories of identity9 that obfuscate the complexity of the subjective experiences of the persons concretely impacted by these legal constructions. For example, the term “Indian” is conceptually defined by federal legislation and unifies the cultures of the more than 1000 diverse Tribal Nation groups in the United States under one conceptual category; this broad relational category is uncoincidentally based on aboriginal ownership of the U.S. territory and largely limited

7 It is well documented by Native women scholars that “feminism” as a response to patriarchy is not Indigenous for many Tribal Nations in the U.S. As Paula Gunn explains, “[t]raditional tribal lifestyles are more often gyncocratic than not, and they are never patriarchal.” See supra note 1, at 2. Sarah Deer also makes clear that [p]atriarchy was largely a European import” where “Native women had spiritual, political, and economic power that European women did not enjoy.” Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America 18 (2015). 8 While it is beyond the scope of this project to prove direct causal connections between Native women’s activism and passage of VAWA, the collective impact of these forms of activism is presumably proven by the passage of this legislation. 9 Barbara Atwood explores the danger of fixed conceptions of “Indian” identities in her article Flashpoints under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance. She draws upon Jean Francois-Lyotard’s notion of “differends” to highlight the difficulty of translating concepts across cultures, especially relevant to the Indian Child Welfare Act exception that disqualifies a multicultural Indian child as Indian or restricts the conception of family to a very narrow one including only the nuclear family. Barbara Atwood, Flashpoints under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory Law Journal 587, 598 (2002). 14

to only those Tribal Nations with sufficient war powers not to be ignored upon

occupation. 10

However, Native women activists’ counterstorytelling used rhetorical strategies

that restored a lived process of discursive construction breathing life back into conceptual

identities of “Indian”; real persons whose lives have been impacted by this jurisdictional

gap tell their stories. In some cases, survivor-activists shared their stories directly to

Congress, as did Deborah Parker (Tulalip Tribes) and Diane Millich (Southern Ute). In

other cases, stories were shared with mainstream media outlets, like the L.A. Times or

Washington Post. Reports were written by international NGOs, such as Amnesty

International. The kinds of performances and artifacts created by the movement for the

safety of Native women is extensive and now spans more than 40 years. As a result,

congressional leaders and the “public” better understood the human rights violations

persisting in Indian Country and, eventually, led Congress to act via VAWA 2013.

II. VAWA History

Until the 1980’s, most states viewed domestic violence as a private family matter.

By the 1990’s, a shift had taken place, with states viewing domestic violence as a crime

and developing a variety of tools to assist in the prosecution of these cases. These tools

included

• mandatory arrest in cases of domestic violence (which reduced/eliminated the discretion of law enforcement officers in these cases; if there is no arrest at the scene, there is often no evidence gathered and no defendant to land the case on the prosecutor’s desk);

10 The fact that the management of Indian affairs was designated as an agency of the department of war until 1849 speaks volumes about the hostile relationship between the U.S. government and tribes as well as the initial recognition of tribes as foreign nations. Bureau of Indian Affairs (BIA), History of BIA (Sept. 29, 2020 6:30 AM), https://www.bia.gov/bia. 15

• no-drop and evidence-based prosecutions designed to encourage law enforcement and prosecutors to collect evidence other than the victim’s testimony, which meant these cases rested on more than a he said/she said debate, which in turn allowed prosecutors to proceed with the cases even if the victim recanted (often done in response to pressure from the defendant); and

• increased the use of protection orders, which when violated, provided additional support for criminal charges against the perpetrator.

The federal government joined the states in 1994, when Congress passed the first

Violence Against Women Act (VAWA). That first VAWA included three major parts.

First, it created a civil right of action in federal court. 11 Second, VAWA created new

federal domestic violence crimes of interstate stalking, interstate travel to commit

domestic violence, and interstate travel with intent to violate a protection order. These

federal crimes were intended to be enforced in Indian country where federal prosecutors

could charge Indians and non-Indians, illustrated by the fact that Congress included

entering and leaving Indian country in the definition of “interstate.” The Full Faith and

Credit clause was the third major part of VAWA, which required all states and all tribes

to recognize protection orders regardless of where the order was granted. However,

Tribal Nations remained unable to prosecute non-Indians for domestic violence or

protection order violations. Despite this limitation, the new tools were sufficient to reduce

the rates of domestic violence against Native women, although not nearly at the same

rates as domestic violence against other groups of women had been reduced.

Although tribal provisions were proposed several times prior to 2012, they often

did not make it out of federal committee hearings. Congressional resistance persisted

11 It was later struck down in United States v. Morrison, 529 U.S. 598 (2000) (holding that Congress had no authority under the commerce clause to regulate gender-motivated crimes of violence that were not considered economic activity, thereby, making the civil provision unconstitutional). 16

despite statistical evidence indicating that sexual and domestic violence crimes against

Native women go largely unprosecuted by the U.S. Attorney’s office, which calls into

question the validity of their 90% conviction rate since 2000 as to whether the office is

willing to take on challenging cases. 12 In 2007, Amnesty International released “Maze of

Injustice: The Failure to Protect Indigenous Women from Sexual Violence in Indian

Country” (Maze Report) drawing attention to the unprecedented rates of human rights

violations against Native women in Indian country resulting from Federal Indian Law and

federal courts’ failures to prosecute non-Indians while prohibiting tribal court

prosecutions. 13 This report, anonymously authored, by a number of Native women

further supported an ongoing strategic international movement led by Native women.

Slowly, Congress began to pay more attention. 14

After extended and multiple activist campaigns focused on human rights,

Congress began working with the National Congress of American Indians and intertribal

representatives to refine draft legislation that eventually became the proposed tribal

provisions of the VAWA Reauthorization of 2012. Passed first by the Senate as S. 1925,

the tribal provisions were initially cut by the House of Representatives when it

considered their version H.R. 4970 of VAWA 2012. 15 It was at this time that activists,

once again, commenced strategic campaigns and protests to influence Congress.

12 Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in Indian Country 66 (2007). 13 See supra note 11, at 2. See also Deer, supra note 7, at 31-43. 14 While not addressed here, the Tribal Law and Order Act (TLOA 2010), 25 U.S.C. 1302(a)(7)(C), led to passage of VAWA 2013 in part because it set up parameters to allow tribes to enact enhanced sentencing procedures if they “opted in” by ensuring alleged perpetrators certain “due process” requirements including providing a licensed public defender. 15 Lisa A. Seghetti and Jerome P. Bjelopera, The Violence Against Women Act: Overview, Legislation, and Federal Funding (Congressional Research Service, May 10, 2012). 17

Undeniably, VAWA 2013 would not have passed with tribal provisions intact without

this extensive activism organized, led, and orchestrated by Native women.

III. Counterstorytelling as Adapted Critical Race Practice

Counterstorytelling as a method, pedagogy, and theory is at the core of the

activism of the movement for the safety of Native women. When the House cut the tribal

provisions in their version of H.R. 4970 in 2012, many Native women came together to

increase their presence in Washington D.C. and share their stories. The National Task

Force to End Sexual and Domestic Violence Against Women organized ten days of

national action to motivate Congress to pass the House bill with the special provisions

intact. 16 Counterstorytelling was woven into this timely activism of protests and calls to

congresspersons, and through the use of Twitter and other social media. Whereas

storytelling often perpetuates and reproduces structural power through identities,

counterstorytelling disrupts this reproduction of normalized whiteness.

I define counterstorytelling as first-person-narrative storytelling, testimony, and

life history that names the white supremacist system functioning to create and reproduce

systemic inequalities. Aja Martinez explains in her book, Counterstory, that

“Counterstory is methodology that functions through methods that empower the

minoritized through the formation of stories that disrupt the erasures embedded in

standardized majoritarian methodologies.”17 Martinez follows a long tradition of third-

16 The National 10 Days of Action for VAWA is off to a Great Start!, National Task Force to End Sexual and Domestic Violence Against Women (Sept. 27, 2020 7:51 PM), http://www.ncdsv.org/images/NTFESDVAW_Natl10DaysActionForVAWAOffToAGoodStartWillYouTak ePart_6-28-2012.pdf. 17 Aja J. Martinez, Counterstory 1 (2020). 18

wave feminists of color and critical race scholars who articulate counterstorytelling as

activist praxis pushing against normative narratives of white supremacy. 18 Delores

Delgado Bernal also explains that “[b]y incorporating a counterstorytelling method based on the narratives, testimonies, or life histories of people of color, a story can be told from a nonmajoritarian perspective.”19 What is unique about counterstorytelling is that it

returns the power of constructing narratives of identities to the storyteller, instead of the operative modes of exclusion and othering that usually circulate in a white supremacist system.

Many Native peoples have theorized through storytelling since time immemorial.20 One way to begin to formalize theory from lived experiences is

storytelling. Counterstorytelling is a practice for remembering and naming the stories of

dispossession and disappearance that were too frequently covered over and made

invisible by structural white supremacy. Counterstorytelling provides non-normative

perspectives that can critically illuminate systemic reproductions of exclusion and

oppression. Professor Robert Williams describes the purpose of critical race practice as

“mostly about learning to listen to other people’s stories and then finding ways to make

those stories matter in the legal system.”21 The power of narrativizing lived experience

for social change is a core process of critical cultural studies.

In “Who Needs Identity?” Stuart Hall notes how we “narrativize” the self to

construct identity, which is “a process never completed--always ‘in process’.”22 The fluid

18 See also Aja Y. Martinez, Critical Race Counterstory as Rhetorical Methodology: Chican@ Academic Experience Told Through Sophistic Argument, Allegory, and Narrative (2012). 19 Supra note 37, at 116. 20 Bryan McKinley Jones Brayboy, Toward a Tribal Critical Race Theory, in Education, 37.5 The Urban Review 427 (2006). 21 Robert Williams, Vampires Anonymous, 95 Michigan Law Review 741, 765 (1997). 22 Stuart Hall, Who Needs ‘Identity’?, Identity: A Reader 2 (IDE: Sage Publications, Inc. 2000). 19

and dynamic process of narrativization is directly juxtaposed to the construction of fixed,

relational identities by institutional and systemic edifices of power. Hall’s conception of

identity is based in postmodern ways of knowing, arguing that “[i]dentities are therefore

constituted within, not outside representation.”23 Hall’s framing of the social construction

of identities highlights the unique opportunity for counterstorytellers to deconstruct fixed

conceptions of “Indian” and reconstruct them within the stories told by Native peoples

themselves. This re-narrativizing of Indian identities also functions as a process of self- recovery and group liberation.

For bell hooks, “[w]hen our lived experience of theorizing is fundamentally linked to processes of self-recovery, of collective liberation, no gap exists between theory and practice.” 24 That is, counterstorytelling drawing upon lived experience is a feminist

methodology for decolonizing the white supremacist capitalist patriarchy. 25 Facilitating

naming one’s reality as part of a critical feminist pedagogy decolonizes and disorients

systemic tactics of disappearance reproduced in administrative regulations intended to

manage large populations of people. The method of counterstorytelling was a key

strategy of Native women activism in the VAWA 2013 campaigns where women

narrativized their identities as sovereign women 26 in a way subjectively disorienting the

public rhetoric that previously had made invisible and disappeared, the genocidal legal

23 See supra note 19, at 4. 24 bell hooks, Teaching to Transgress: Education as the Practice of Freedom 61 (New York: Routledge 1994). 25 Chapter one will more precisely explore how structural white supremacy is more appropriately described as a “white supremacist genocidal patriarchy” in relation to Native peoples because of the prominence of disappearance as a tactic. See infra Chapter One, at § Whiteness as Disappearance Extending Critical Race Theory. 26 Sarah Deer uses two senses of the word “sovereignty”: “political sovereignty and personal sovereignty.” See supra note 7, at XV. This project primarily focuses on the former; however, the personal sovereignty of Native women to meet their spiritual, physical, and intellectual needs is inextricably tied to Tribal Nations’ capacity to fulfill their own self-determined political sovereignty. 20

policies that failed to protect Native women in Indian country. One such example was

Chairwoman Deborah Parker’s timely speech to Congress. 27

Chairwoman Parker’s speech was particularly effective because of its demonstration of the importance of timing—captured by the rhetorical idea of kairos. 28

Chairwoman Parker delivered the speech after the Senate passed its version of the

VAWA 2012 bill 29; when the bill reached the House of Representatives (House), it removed the tribal provisions in its proposed version due to constitutional concerns about revenue provisions. 30 This moment was critical for persuading the House to restore the tribal provisions; Speaker of the House, John Boehner, invoked a rarely used exception to bring the bill to the House for a vote—the Boehner Rule—which had only been invoked twice before VAWA 2013 during the Hurricane Sandy Relief Bill and the fiscal cliff vote at the end of the 112th Congress. 31

Whereas identities defined in the genres of federal legislation and congressional hearings are fixed relational identities in terms of race, gender identity, domestic relations, and political identity, this approach obfuscates the complexity of the subjective

27 See infra note 29. 28 In the tradition of rhetoric, kairos broadly refers to the “belief that truth is relative to circumstances.” That is, depending on the particular circumstances at the time a rhetorical situation exists will determine the rhetorical effectiveness of a text and, thereby, its perceived truth. The Rhetorical Tradition 45 (Patricia Bizzell and Bruce Herzberg, eds., 2001). 29 The 112th Congress concluded prior to passage of a version of the bill that both the Senate and House would approve, which occurred in March 2013. 30 See Advocating and Protecting Native Women: NCAI Violence Against Women Task Force Leads VAWA Meetings on Capitol Hill, National Congress of American Indians (July 5, 2012). This bill became H.R. 4970, 112th Congress, 5/20/12. 31 There were always enough votes in the House to pass the VAWA 2013 bill; however, the Hastert Rule generally is the unspoken rule invoked by the Republican party when the majority of Republicans opposes a bill because it would upset their constituents, but really are politically in favor of a bill. In the case of VAWA 2013, House Speaker abandoned the Hastert Rule and brought it to the floor for a vote. The kairos of activism occurring around this time impacting Boehner in a highly persuasive way is a meaningful connection worth tracing here. More broadly, the Boehner Rule has been invoked by House speaker in times of “crisis” to effect decision making for the greater good, justifying congressperson’s misalignment with constituents because of emergency crises. See Jonathan Bernstein, The Boehner Rule, The American Prospect (June 9, 2019, 4:25 PM), https://prospect.org/article/boehner-rule. 21

experiences of the persons concretely impacted by these legal constructions. However, the approach of activists, such as Deborah Parker, Vice Chairwoman of the Tulalip

Tribes, use critical race strategies to restore a lived process that breathes life back into identities of real persons whose lives are impacted by this jurisdictional gap; her April

2012 testimony at a Congressional Press Conference educates legislators about the lived experience of Native women while complicating Native women identity so as to resist fixed and unifying classifications of Native peoples in the U.S. 32

Chairwoman Parker’s testimony was part of a larger ripple of activism advocating for passage of VAWA 2012 that included ten days of action coordinated by National

Task Force to End Violence Against Women culminating on July 4, 2012. Her testimony was a kairotic33 moment where Chairwoman Parker was seemingly at the right place at the right time because she was in Washington D.C. for unrelated environmental advocacy when she learned the House had eliminated the tribal provisions. Further, Chairwoman

Parker’s testimony embodies CRT storytelling to counter the normalized rhetoric of the dominant legal culture that reproduces white supremacy as the disappearance of Native

32 Senator Patty Murray, Women Senators, Tribal Leader Discuss Importance of VAWA Improvements, April 25, 2012, YouTube (Dec. 27, 2020, 2:49 PM), https://www.bing.com/videos/search?q=deborah+parker+youtube+vawa&view=detail&mid=4EB8A10E0B 86788FFA5D4EB8A10E0B86788FFA5D&FORM=VIRE. It is worth mentioning that this project originally included Chairwoman Parker’s speech as a third case study. However, preliminary analysis revealed its content nicely introduces the reader to the kinds of Indigenous Feminist Pedagogy identified in this project. While also a paradigmatic example of the kinds of Indigenous Feminist Pedagogy with which this project is concerned, articulating its features in this introduction is intended to better articulate for the reader, a clearer roadmap for analyzing the two other case studies. Also, this speech did not have broad circulation beyond the congressional hearing that occurred for the other two case studies. For these reasons, Chairwoman Parker’s speech was analyzed as a subsection here instead of allotting it a separate chapter. 33 Kairos is an important aspect of the rhetorical situation in the rhetorical tradition; what this concept captures is timing of speech for determining how it is received by an audience. If the timing of the speech when delivered is a particularly opportune moment, then the author’s purpose will be easily achieved with the audience. See Jane Donawerth, Conversation and the Boundaries of Public Discourse in Rhetorical Theory by Renaissance Women, in Walking and Talking Feminist Rhetorics 225 (Kathleen Buchanan & Kathleen J. Ryan eds., 2010). 22

peoples, and especially, Native women. Her testimony demonstrates a heightened

awareness of her audience in her vacillation between the fixed concepts utilized by the

federal government and storytelling that is unique to her own lived experience as a

Tulalip woman.

Chairwoman Parker begins her speech by introducing herself first in her native

language. 34 By speaking in her native language, Chairwoman Parker symbolically

emphasizes the importance of her identity as rooted in her culture and language, which is

a key reminder of her tribe’s unique cultural sovereignty. Use of her native language also

preserves the political difference for Native women who may pass as “white” and are

citizens of sovereign Tribal Nations. Before translating her name and affiliation with a

federally recognized tribe, she announces her presence on the basis of her own people’s

sovereignty as an intact culture and self-governing people. By doing so, Chairwoman

Parker announces her people’s persistence and resists the colonizing tendencies of the

dominant culture to speak only English. Immediately after, Chairwoman Parker translates

her introduction in English: “I am an enrolled member of the Tulalip tribes of the state of

Washington”; this intentional shift of deploying the federal government’s relational

identity categories demonstrates her fluency in federal Indian law as well as her

awareness of her congressional audience. 35 That is, in order to be “Indian,” a person must

be enrolled in a federally recognized tribe. 36 While the Tulalip tribes combines more than

34 Parker’s name is cicayalc̓ a, pronounced “tsi-cy-altsa” (00:24). It is unclear what language Parker is speaking because the Tulalip Tribes are comprised of Snohomish, Snoqualmie, Skykomish, and other allied tribes and bands that agreed to reside on the reservation created by the 1855 Treaty of Point Elliott. About Us, The Tulalip Tribes (Dec. 18, 2018, 5:52 PM), https://www.tulaliptribes- nsn.gov/Home/WhoWeAre/AboutUs.aspx. See supra note 32, at 00:24. 35 Supra note 32, at 00:32. 36 While there are Tribal Nations, such as the Lumbee Tribe that are state but not federally recognized; in the case of the Lumbee Tribe, the federal government recognizes their people as “Indian,” despite withholding the status of federal recognition. See History and Culture, Lumbee Tribe of North Carolina 23

four culturally distinct Indigenous peoples, the federal government relationally treats this

designation as one group for legal purposes.

Chairwoman Parker continues by explaining her leadership role in the

government of the Tulalip tribes as acting Vice Chairwoman, a common title in

government committee structures that would be easily recognizable as a position of

power; her doing so aligns nicely with the normative use of titles by the dominant legal

culture in which U.S. Congresspersons recognize leadership authority. Her leadership

position also authorizes her to speak on behalf of her people. Chairwoman Parker makes

clear that she is a government leader in a sovereign Tribal Nation, which is a legible

relational identity that Congress is more likely to view as credible. She also chose to

dress in customary business attire by wearing a women’s suit jacket, as opposed to

traditional or ceremonial attire for her own culture that she often wears when speaking to

groups of Native peoples. Chairwoman Parker’s attire connects with her audience by

building credibility as a mainstream political figure by wearing the customary suit jacket;

however, she also makes clear she is a Tribal Nation leader. Her performance effectively

walks this middle ground in order to reach her congressional audience while disrupting

presumptions that “Indian” women are either frozen in time (wearing only traditional

cultural attire) or have disappeared entirely. 37

(Sept. 28, 2020 6:59 AM), https://www.lumbeetribe.com/history--culture. There are certain benefits for which nations will or will not be eligible based on federal recognition. Only federally recognized tribes may exercise VAWA 2013. 37 This distinction is what is particularly jarring when Donald Trump repeatedly refers to Elizabeth Warren as “Pocahontas.” While meant to call into question Warren’s alleged Native ancestry, it draws upon a trope of being a Native woman that’s anachronistic and reproduces myths of disappearance. Why not compare her to Deb Haaland or Sharice Davids? That would make visible the continued power and sovereignty of Native women. Jordan Phelps, What's behind Trump's 'Pocahontas' taunt of Warren, ABC News October 16, 2018 (Oct. 2, 2020 11:15 AM), https://abcnews.go.com/Politics/trumps-pocahontas-taunt- warren/story?id=58530657. 24

Chairwoman Parker continues her speech by acknowledging the ways in which

the federal government has silenced Native women when she says, “I could not allow

another day of silence to continue.”38 This statement calls out how the federal

government has made silent the voices of Native women by way of exclusion from

federal protections despite data indicating unprecedented rates of sexual and violent

assault in Indian country. Chairwoman Parker incorporates a long pause after

acknowledging that she did not expect to share her own personal story, implying the

current precarity of the situation where the House’s plan to exclude the tribal provisions

inspired her urgency to speak. This statement aligns with her confession introducing her

story, “I am a Native American statistic.” 39

When Chairwoman Parker refers to herself as a statistic, she is aligning her story with the extensive social science data indicating that Indian country has the highest rates

of sexual and domestic violence in the U.S. The irony embedded in this statement is that

by personalizing the data with her story, she is humanizing and connecting

empathetically with her audience. This discursive move of framing her personal story

directly as one individual who is captured by the statistical group, “Native American” is

extremely effective because it connects with this mainstream relational identity of

“Native American” qua “Indian” while humanizing the circumstances of individuals

impacted through counterstorytelling. Chairwoman Parker’s accounts of her and her

auntie’s experiences of violence are a form of counterstorytelling because it articulates

specific instances where racial disparity in public policy materially impacted the life

chances of the persons affected.

38 Supra note 32, at 00:57 (emphasis added). 39 Supra note 32, at 01:22 (emphasis added). 25

Chairwoman Parker’s story connects the dots succinctly between public policy

that excludes Native women of all Tribal Nation communities and the violence

reproduced and perpetrated against them as a result. She informs her audience that her

story begins in the 70’s, the same decade when Oliphant stripped Tribal Nations of the

power to prosecute non-Indians. She uses the vivid image of a “red velvet coach cushion”

to approximate her size and age to her audience; this image anchors the audience’s memory through the use of color and by referencing an everyday object that gained radical significance for her through her trauma. 40 While telling her story, Chairwoman

Parker emphasizes how her perpetrator had no regard for a “little child’s life, my life.” 41

This repetition effectively draws attention to the disparate value placed on her life as a

Native woman under the current policy.

After sharing her own story of surviving sexual assault, Chairwoman Parker tells a story about her auntie’s rape. Chairwoman Parker describes having babysat her auntie’s children when she was followed home by several white men who violently raped her; she concludes her story by acknowledging, “she died at a young age.” 42 Here, Chairwoman

Parker is also using the repetition of reduced life chances resulting from the disparate federal treatment of Native women under jurisdictional exclusion of non-Indians.

Chairwoman Parker then pivots from these personal accounts of assault to emphasizing

the need for law enforcement.

Chairwoman Parker weaves the emphasis upon the need for law enforcement into her testimony by relating it to her own life. First, she does so by explaining that her

40 Supra note 32, at 01:44. 41 Supra note 32, at 02:01 (emphasis added). 42 Supra note 32, at 02:57 (emphasis added). 26

auntie’s perpetrators “were never prosecuted” and that “during this time on our reservation there was no real law enforcement.” 43 This emphasis connects with public policy. By focusing on law enforcement, she appeals to her legal audience who would likely be concerned with the exercise of police powers by local law enforcement. In contrast, had she emphasized the need for restoration of jurisdiction as an exercise of political sovereignty, the audience likely would not have been as receptive or sympathetic towards her story.

She then continues by explaining how she both studied criminal justice and created a program for survivors of sexual assault and domestic violence. She emphasizes she did so in part “because [she] kn[e]w the life of a Native woman was short.” 44 This

shift in emphasis both illustrates that her people have taken significant steps to protect

women while also emphasizing how this system results in the reduced life chances and

disappearance of Native women, implying that the ability to prosecute is desperately

needed.

Chairwoman Parker wraps up her testimony by asking explicitly: “Why did you

[Congress] not protect me or my family? Why is my life and the life of so many other

Native American women less important?”45 These direct questions to Congress explicitly

acknowledge the reduced life chances that are proven by the statistical data about

violence against Native women and disorients the government’s ability to continue to

make the truth of the concrete impact of its policies invisible; she disorients the system

43 Supra note 32, at 3:01–3:09 (emphasis added). 44 Supra note 32, at 03:09. 45 Supra note 32, at 04:24. 27

that names itself falsely. 46 She succinctly, eloquently, and directly poses the true question about the disparate and racist treatment of Native women and disorients the government rhetoric reproducing white supremacy through disappearance.

After calling out Congress through counterstorytelling, Chairwoman Parker appeals to the authority of the U.S. Constitution, treaty agreements, and the police powers of sovereign Tribal Nations when she says, “I am urging Congress to uphold the U.S.

Constitution and honor U.S. treaty agreements to provide protection, education, health, and safety our [sic] of [sic] our indigenous men and women of this country.”47 By emphasizing the supreme law of the U.S. and sovereign police powers of Tribal Nations to regulate public health, welfare, and safety, Chairwoman Parker is appealing to her congressional audience in terms of authority that they acknowledge, despite the fact that the constitutional protections to which she referred most likely are not available in Indian country. 48 Whereas most lawyers are not knowledgeable about federal Indian policy,

Chairwoman Parker is educating members of Congress about the inherent sovereignty of tribes that should support restoration of their capacity to promote the public health, safety, and welfare for all of its citizen-members. She also emphasizes that “our tribal

46 "We will continue to fight...against the system that names itself falsely. For we have stood on the promises far too long now that we can all be equal under the cover of the 'post-civil rights' U.S., where a particularly powerful technology of state violence is the insistence that existing systems and conditions are no longer racist, sexist, and ableist.” Quote by character, Honey, Born in Flames (First Run Features 1983). This radical feminist feature film from the early 1980’s embodies the very same critical race critique articulated later by critical race theory, as recognized by Crenshaw when she explains how the “[l]aw is an essential feature in the illusion of necessity because it embodies and reinforces ideological assumptions about human relations which people accept as natural or even immutable.” See supra note 2, at 104 -108. That is, the system poses as “colorblind” and acknowledges only overt racism perpetrated by individual actors, all the while excluding persons based on race, gender-identity, class, and citizenship status. 47 Supra note 29, at 04:39. 48 The Indian Civil Rights Act requires tribes to apply the equivalent individual rights enumerated in the bill of rights with the exception of no Establishment Clause and no due process requirements of indigent defense counsel and a jury of peers. David E. Wilkins and Heidi Kiiwetinepinesiik Stark, American Indian Politics and the American Political System 96 (Fourth ed., Rowman & Littlefield 2018) (2001). 28

courts will work with you to ensure that violators are accountable.” 49 Her articulation

that tribal courts are prepared to execute the law to protect its people further reaffirms the

inherent sovereignty of tribes to self-govern as well as reaffirms the existence of tribal court systems; it also sends a strong message that Tribal Nations enforce laws when the

U.S. affirms their authority.

Chairwoman Parker closes her speech by again using her Native language, which emphasizes her individual identity as expressed through her native language in a way disrupting the fixed relational category of “Indian” in federal Indian law. 50 She also

emphasizes that she is “blessed to be alive today.” 51 Her emphasis on her survival despite

these genocidal policies is repeating the recognition of the ways that federal policies

reduce life chances for Native women, while countering the myths that Native peoples

have disappeared. Through counterstorytelling, Chairwoman Parker disorients the

Congressional Press Conference context and racist disparate policies impacting Native

women by personalizing her lived experience while also translating these experiences in a

way legible to policy makers. Her testimony functions as a form of pedagogy, educating

congresspersons.

Many activists’ strategies like Chairwoman Parker’s drew national attention and

educated the country about violence against Native women, which had remained invisible

to most congresspersons in Washington. These activists’ pedagogical strategies were key

in translating the complexity of harms against Native women into digestible and easily

understandable meaning for mainstream audiences and Congresspersons voting on

49 Supra note 32, at 05:27 (emphasis added). 50 Supra note 32, at 05:38. 51 Supra note 32, at 05:45. 29

VAWA 2013. Native women’s voices authored a variety of activist texts that were

circulated broadly to non-Indian and Indian audiences. Such tactics were necessary to

expand the VAWA legislation to include Tribal Nations, an exclusion that had persisted

since VAWA first passed in 1994. Similar to the pedagogical strategies utilized by

Chairwoman Parker, the two case studies examined in detail in this project also articulate

the features of a unique methodology deploying Indigenous Feminist Pedagogy.

IV. Project Overview

This project explores two artifacts of this ongoing Native Women’s movement as

case studies to better articulate the features of this critical feminist pedagogy: a play

called Sliver of a Full Moon (Sliver) and Amnesty International’s Maze of Injustice: The

Failure of the United States to Protect Native Women report (Maze Report). 52 By

examining these cases, I will trace the ways in which Native women activists have

effectively increased and circulated literacies of white supremacy operative through

policies and tactics of disappearance as a form of Indigenous Feminist Pedagogy for legal

and political action. 53 Both case studies demonstrate how the authorship and broad

circulation of the counterstories of Native women function as a unique methodology for

disorienting white supremacy in its relation to Native peoples.

The first case study, Sliver is a play written by Mary Kathryn Nagle shortly after

President Obama signed VAWA 2013 into law. While each performance of the play

contains the stories of several survivors whose activism was instrumental in the passage

52 See generally Sliver, supra note 5, and the Maze Report, supra note 12. 53 These tactics of disappearance as well as the adaptation of feminist pedagogy by Native women is more fully explained in Chapter One; see infra, at §§ Critically Sovereign Feminist Methodology Enacted as Pedagogical Praxis and Whiteness as Disappearance Extending Critical Race Theory. 30

of VAWA, the play changes each time it is read. Because of the fluid nature of the play,

it is a particularly powerful example of feminist pedagogy demonstrated throughout the

movement for the safety of Native women. The play also disrupts traditional casting of

professional actors by having survivors share their own stories on stage, while casting

Native actors in roles playing Native peoples where survivors are not performing as

themselves. Real life and fiction converge for a powerfully disruptive learning experience

for mainstream and legal audiences.

The second case study, the Amnesty International Maze Report, similarly disrupts

legal norms through its use of counterstorytelling by Native women, survivors or the

loved ones of murdered Native women are quoted throughout the report based on

interviews. 54 While the kairos of this report represents a longer-term trajectory for

building awareness about the sovereignty of Native women, it broadly captured

international attention outside of U.S. legal and political institutions, laying the

groundwork for future activism. This report includes stories of survivors about their

experiences with the legal system in Indian Country. Native women who directly

interviewed survivors primarily authored the Maze Report. This report captured

international media attention in a way that the historical findings of the Interamerican

Court of Human Rights in the Gonzales v. U.S. case could not. 55 Four years after the

Maze Report, the United Nations sent a Special Rapporteur to the U.S. to investigate the

human rights violations against Native Women, resulting in a recommendation that

54 See supra note 12, at ii, 42. 55 Gonzales v. United States of America and the State of Colorado, Inter-American Commission on Human Rights, Petition No. P-1490-05. See also Margaret B. Drew, Truth Seeking: The Lenahan Case and the Search for a Human Rights Remedy, 62:4 Saint Louis University Law Journal 903 (2018). 31

Congress act to remedy these harms. 56 The Maze Report is a powerful example of how

the counterstories of Native women embedded within a widely accessible NGO report

can influence Congress to act once once the public developed greater awareness of the

human rights violations harming Native women. 57

Jennifer Hendry and Melissa Tatum’s article, “Human Rights, Indigenous

Peoples, and the Pursuit of Justice,” explains how a rights-based approach to justice

breaks down “at the intersection of legal cultures and where the person requesting the

protection under the law differs from the prevailing norm within the dominant legal

culture.” 58 Dean Spade also makes similar claims with regard to trans identities in

Normal Life: Administrative Violence, Critical Trans Politics, & The Limits of Law,

recognizing that population management power of administrative law functions to

manage populations instead of individuals’ rights. 59 Spade’s work of naming a model of

critical trans politics helps clarify how legal structural power shapes legal outcomes,

moving the scope of understanding away from an adversarial lens of plaintiffs and

defendants towards the population management lens characterizing federal Indian law as

primarily governed by public policy and rules established by federal administrative

agencies, such as the Bureau of Indian Affairs. 60 By examining the intersection of

56 The United Nations sent a Special Rapporteur to investigate the human rights violations against women in 2011, ““especially the multiple, intersecting forms of discrimination, particularly native [sic] American, immigrant, and African American.” See Report of the Special Rapporteur on violence against Women, its causes and consequences, Ms. Rashida Manjoo, United Nations General Assembly May 2, 2011, Human Rights Council, Seventeenth session Agenda item 3, (Sept. 29, 2020 7:32 AM), https://documents-dds- ny.un.org/doc/UNDOC/GEN/G11/130/22/PDF/G1113022.pdf?OpenElement. 57 Jennifer Hendry and Melissa Tatum, Human Rights, Indigenous Peoples, and the Pursuit of Justice, 34:2 Yale Law and Policy Review 351, 381 (2016). 58 See supra note 50, at 373. 59 Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law (2011). 60 The Administrative Procedures Act of 1946 established the power by Congress to form the administrative agencies, such as the Bureau of Indian Affairs, Bureau of Land Management, etc. that manage the trust relationship with federally recognized tribes. Pub. L. 79–404. 32

identities constructed by the U.S. legal system and population management power

structures, the effectiveness of Native women’s feminist pedagogies are made more

visible. Visibility of these kinds of effective approaches to activism continues to be

critical during a time that Congress remains polarized with a majority Republican Senate

and Democratic House.

In the next chapter, I introduce the theoretical logics of whiteness as

disappearance, an adaptation of CRT’s framework of “whiteness as property” as it

applies to Native peoples. Property law as it relates to Native peoples operates to either

include or exclude actualizing tactics of disappearance in federal Indian law and policy.

By differentiating how structural racial inequalities are reproduced, I intend to articulate

why human or civil rights models are insufficient for transforming modes of oppression

in the U.S. and emphasize the importance of enhancing CRT’s strategies. I then use this

foundation to more fully understand the responsive pedagogy of Native women activists

through a lens derived from TribalCrit as well as from J. Kēhaulani Kauanui’s

understanding of how genocidal logics disappears Indigenous Hawaiians: Critically

Sovereign Feminist Methodology (CSFM). 61 This theoretical framework of CSFM is

embodied through the articulation of the unique features of this Indigenous Feminist

Pedagogy as exemplified in the two cases analyzed in chapters three and four.

Reproduction of the structurally embedded fixed concept of “Indian” ensures epistemic

closure62 supporting population management power, providing the legal system with

61 See Kauanui, J. Kēhaulani, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity 10-11 (2008); Brayboy, supra note 17. 62 Jennifer Hendry and Melissa Tatum brilliantly draw upon this phrase to highlight the disruptive ways in which tribal legal cultures have adapted their legal traditions to the U.S. federal legal tradition to avoid the epistemic barriers. Jennifer Hendry & Melissa L. Tatum, Justice for Native Nations: Insights from Legal Pluralism, 60:1 Arizona Law Review 104 (2018). 33

predictability and replicability while erasing difference across Tribal Nations and their

peoples. Native women activists disoriented fixed conceptions of “Indian” and myths of

their disappearance, using counterstorytelling to disrupt epistemic closure.

Chapter two outlines the relevant federal Indian law context giving rise to VAWA

2013 through a critical race lens. Doing so illuminates the ways in which whiteness as property, qua whiteness as disappearance for Native peoples, is a logics operative in the

U.S. and why adaptation of CRT was necessary to adequately address sovereignty as it relates to activism in the two case studies. This process looks closely at how the Oliphant v. Suquamish case and oral arguments reinscribed dominant practices of disappearance. 63

Because whiteness as disappearance has been conscripted in U.S. common law since the

country’s founding, there are certain expectations, terms, and practices that play out in

federal Indian law; this historical and disciplinary context will make clear why I chose

these two case studies because they highlight disruptive tactics qua Indigenous Feminist

Pedagogy. Federal Indian law uses individual identity categories of being non-Indian to

dispossess tribes of sovereignty. Once these expectations, terms, and practices are conscripted in the common law, their reproduction becomes fixed and easily reproduced through case precedence and controlling authority of legal patriarchy. My two case studies embody the kinds of disruptive tactics that disoriented these forms of structurally oppressive mechanisms.

Chapters three and four introduce my two case studies, Sliver and the Maze

Report. Chapter three explores the articulations of activists in performances of Sliver as

63 435 U.S. 191 (1978) (holding that tribes do not have criminal jurisdiction over non-Indians perpetrating crimes in Indian country where allotment era policies allegedly never intended Tribal Nations to exercise jurisdiction over non-Indians). 34

applications of an Indigenous Feminist Pedogogy that has adapted CRT to raise critical

sovereignty consciousness in audiences. Chapter four examines how the Maze Report

deployed similar tactics to raise critical sovereignty consciousness on an international

level through a broadly accessible human rights report. Both forms of activism articulate

effective strategies of Native women who transformed the relationship between federally

recognized tribes and the U.S. government.

The conclusory chapter connects the threads of similarity between the two pedagogical enactments explored in the previous two chapters to understand better how these pedagogies deployed in legal activism can be replicated by other activists. Through expanding CRT’s framework by articulating the methodologies of these Native women activists, it’s clearer how this legal activism built literacies about structural white supremacy’s tactics of disappearance for audiences through application of a critically sovereign feminist methodology concretely applied through Indigenous Feminist

Pedagogy.

For more than four decades Native women through the movement for the safety of Native women have enacted various strategic forms of Indigenous Feminist Pedagogy to transform the relationship between the U.S. government and Tribal Nations.

Counterstorytelling has served as the primary method and theory guiding these pedagogies. The articulation of this unique methodology is critical for future research analyzing this activism as well as formulating new models for further transforming the relationship between the U.S. government and Tribal Nations.

35

Chapter One Indigenous Feminist Pedagogies: Building Literacies of Structural Whiteness as Disappearance

“This hand is not the color of yours, but if I pierce it, I shall feel pain. If you pierce your hand, you also feel pain. The blood that will flow from mine will be of the same color as yours. I am a man. The same God made us both. ~Chief Standing Bear, Standing Bear v. Crook, May 1879.1

“The range of contemporary critical theories suggests that it is from those who have suffered the sentence of history—subjugation, domination, disaspora, displacement—that we learn our most enduring lessons for living and thinking.” ~Homi Bhabha2

Abstract This chapter introduces the logics of whiteness as disappearance functioning as the rights to include as well as exclude, an adaptation of critical race theory’s conception of whiteness as property. This adapted theory was first coined by J. Kēhaulani Kauanui in Hawaiian Blood to account for the ways in which blood quantum was utilized to dispossess Indigenous Hawaiians of their homelands. This theoretical framework helps articulate the key features of the pedagogical methods deployed by Native women activists in the movement for the safety of Native women, now spanning nearly four decades. The two cases selected for this project embody significantly different forms of pedagogy, while both memorialize the activist methodologies deployed by Native women. Sliver of a Full Moon (Sliver) play memorializes its passage, circulating the power and strategies of Native women activists. The Amnesty International’s Maze of Injustice: The Failure of the United States to Protect Native Women report (Maze Report) embodies the broad-reaching activism that led to the tipping point for Congress to pass the VAWA 2013 tribal provisions. The theoretical framework of whiteness as disappearance makes clearer the features of structural white supremacy and the ways in which these activists’ methods disrupted the structural mechanisms by which Native peoples in the U.S. have been persistently dispossessed of sovereignty, property, and self- determined identities. An adaptation of critical race theory that I call critically sovereign feminist methodology provides a lens through which the praxis deploying an Indigenous Feminist Pedagogy (form) functions to disrupt the mechanisms of whiteness as disappearance.

1 This quote is drawn from Mary Kathryn Nagle’s article, Standing Bear v. Crook: The Case for Equality under Waaxe's Law, which explains how in 1879 Judge Dundy declared that all Indians were persons under the law 75 years prior to the decision in Brown v. Board of Education. Mary Kathryn Nagle, Standing Bear v. Crook: The Case for Equality under Waaxe's Law, 45 Creighton L. Rev. 455, 455-56 (2011). 2 Chela Sandoval utilizes this quote as well as quotes from Audre Lorde and Michel Foucault to introduce her work, Methodology of the Oppressed, explaining to readers that it “surfaces what is forgotten, an underlayer of oppositional consciousness that quietly influenced the history of U.S.-Euro consciousness…” Chela Sandoval, Methodology of the Oppressed 1 (2000). 36

I. Introduction - Visioning Purpose

This project articulates the popular education methodologies deployed by Native women, memorialized in two case studies, Sliver and the Maze Report. Both case studies uniquely embody a popular education model that disrupts whiteness as disappearance 3 through storytelling, an Indigenous Feminist Pedagogy. In order to illuminate the key features of this uniquely Indigenous methodology, this project utilizes a critically sovereign feminist methodology (CSFM). 4 That is, by closely reading the articulations of these Native women activists using a CSFM lens, it becomes clearer how these texts operate as two articulations of Indigenous Feminist Pedagogy that can be replicated by other activists. This pedagogy increases literacies about structural whiteness as disappearance, the specific structure in which white supremacy is operative towards

Native peoples, while at the same time disrupting this white supremacist structure as it impacts Tribal Nations.

This chapter preliminarily illuminates and traces the lines woven by the covert mechanisms of whiteness as disappearance, 5 defined most basically as the U.S. legal

3 This phrase intends to adapt Cheryl Harris’s coinage of the phrase “whiteness as property” to account for the ways in which being perceived as white constitutes dispossession of sovereignty for Native peoples. By doing so, I hope that readers will consider this phrase a continuation in the same vein as critical race theory by Indigenous Feminist Pedagogues. Cheryl I. Harris, Whiteness as Property, 106 Harvard L. Rev. 1709, 1718 (1993). In contrast, Critical Indigenous Studies scholar Aileen Moreton-Robinson retains the phrase “whiteness as property” throughout her work White Possessive: Property, Power, and Indigenous Sovereignty. White Possessive: Property, Power, and Indigenous Sovereignty (2015). ProQuest Ebook Central, https://ebookcentral.proquest.com/lib/uaz/detail.action?docID=2051599. 4 Daniel Solarzano & T. Yosso, Critical Race Methodology: Counter-storytelling as an Analytical Framework, Qualitative Inquiry, 23, 24 (2002). See also Aja J. Martinez’s analysis of Counterstory as methodology. Counterstory (2020); Aja Y. Martinez, Critical Race Counterstory as Rhetorical Methodology: Chican@ Academic Experience Told Through Sophistic Argument, Allegory, and Narrative (2012). 5 I use this phrase to connote Kauanui, J. Kēhaulani’s adaptation of Harris’s conception of “whiteness as property” because doing so memorializes the lineage of Harris’s prior work, which would not be captured by only referring to the genocidal logics of disappearance. See Kauanui, J. Kēhaulani, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity 10-11 (2008). 37 system effecting the disappearance of Native peoples in the U.S. and subsequently, their aboriginal rights to property and the sovereignty tied to it. However, this chapter syncs closely with chapter two, which outlines the contours of the significance of VAWA

2013 6 in the context of federal Indian law as shaped by this logics of disappearance.

Federal Indian law cannot be accurately understood independent of this lens of whiteness as disappearance.

This chapter first situates my own relationship with this project to orient the reader as to my reasons for choosing it. Then, it considers how legal education in the U.S. interacts with feminist theory in order to orient it with a critically sovereign feminist methodology (CSFM) as a form of pedagogical praxis. CSFM is then explained in terms of its adaptation of critical race theory (CRT) and whiteness as property. Next, this chapter explains how CRT can be extended to account for a theory of whiteness as disappearance. Doing so makes clearer how sovereignty can shape CRT towards a feminist methodology that critically accounts for sovereignty and transformative pedagogical praxis. Through this grounded CSFM that illuminates the genocidal logics of

6 Throughout this project, reference hereinafter to “VAWA 2013” refers only to the tribal provisions passed for the first time in 2013 and currently up for reauthorization in H.R. 1585 introduced March 19, 2019. This new bill would add tribal protections relating to obstruction of justice, sexual violence, sex trafficking, stalking and assault on law enforcement or correction officers. H.R.1585 - Violence Against Women Reauthorization Act of 2019, Congress.gov (Mar. 25, 2019), https://www.congress.gov/bill/116th- congress/house- bill/1585?q=%7B%22search%22%3A%5B%22violence+against+women+reauthorization+act%22%5D%7 D&s=3&r=1. It is devastating that as of the writing of this chapter, it has yet to be passed by Congress. In the words of Senator Tom Udall, “It is appalling that Senate Republican leadership is still refusing to reauthorize VAWA—a proven program that protects women and families in New Mexico and across the country. While this bill sits in the majority leader’s legislative graveyard, the crisis of Missing and Murdered Indigenous Women is devastating Native families in New Mexico and across the country.” Violence Against Women Act reauthorization is needed to protect women in New Mexico and across the U.S., United States Senate Committee on Indian Affairs Nov. 19, 2019 (Sept. 20, 2020 at 8:48 AM), https://www.indian.senate.gov/news/press-release/photo-udall-joins-senate-democrats-introduce-vawa- reauthorization-bill-strong. 38 a white supremacist system in relation to Native peoples, the significance of the strategic

Indigenous Feminist Pedagogy embodied in the movement for the safety of Native women becomes clearer.

Before framing the scholarly basis of this theoretical lens of whiteness as disappearance, it’s important to first situate my own lived experiences, both personally and scholarly. Doing so will orient my reader as to why I have embarked upon this journey in the first place. I will begin by first situating my relationship with this project.

II. Awakening to White Privilege and Reproductions of the White Supremacist System

I have been reflecting upon my reasons for pursuing this project and asking,

“Should a white, non-Indian cisgender woman from Michigan be writing about

Indigenous Feminist Pedagogy?” My apprehensions are rooted in the fact that I am not a citizen of a Tribal Nation; my relationships with Tribal Nations arose through my legal internships during law school. Still, I choose this project because of the ways that the praxis of Native women at the intersections of race, gender, class, and dispossession of resources resonates with my own person histories and relationship with white supremacist capitalist patriarchy. 7 I join other rhetoricians who resist notions of essentialized identity, such as Jaqueline Jones Royster, who says,

There is a constancy in the need for negotiation, beginning with the uncomfortable question of how much I actually do share identities with the women I study and how much I do not. …What becomes critical to good practice, however, is that these researchers—who are indeed outsiders to communities they study—have special obligations that begin with a need to articulate carefully what

7 bell hooks coined this term in her work Teaching to Transgress: Education as the Practice of Freedom. bell hooks, Teaching to Transgress: Education as the Practice of Freedom 47 (1994). Also, worth noting is that bell hooks’s use of lower cases for her name is intentional. 39

their viewpoints actually are, rather than letting the researchers’ relationships to the work go unarticulated, as is often the case with practices of disregard. 8

My own connections to the significance of this work are multiple despite not being

perfectly aligned with my own locations and lived experiences.

My own healing from patriarchal abuses underlying my motivation for trying to

change the legal system compels me to keep asking, “Who profits from all this?”9 Much

of the practice of the law makes the ethical underpinnings of care illegible as well as

obscuring the narratives reproduced by dominant culture, valuing primarily reason, self-

interested economics, and judicial efficiency: the “natural” narrative of a white

supremacist capitalist patriarchy. 10 This patriarchy thrives on the oppressive reproduction of gendered roles, sexual violence being a core tactic that is normalized. I realize now that a process of naming the emotional and moral import of legal opinions and laws through narrative storytelling brings the body back to the law and that this process is a kind of feminist pedagogy, one utilized by Native women advocating and memorializing the passage of the tribal provisions of VAWA 2013. I call this popular education model

“Indigenous Feminist Pedagogy.”11 Patriarchal norms disembody and dis-articulate the

feeling body from the law and its processes, an unnatural and unhealthy practice; yet

normalization of the disembodied lawyer is necessary to reproduce the normalization of

sexual violence.

8 Jacqueline Jones Royster, Traces of a Stream: Literacy and Social Change among African American Women 271-277 (2000), ProQuest Ebook Central, https://ebookcentral.proquest.com/lib/uaz/detail.action?docID=2038895. 9 Audre Lorde, Eye to Eye, in Sister Outsider: Essays and Speeches 129 (1984). 10 See supra note 7. Worth noting is Carol Rose’s perspective as a legal scholar that “[de]sire for resources is at the very center of the institution of property.” Carol Rose, Property and persuasion: Essays on the history, theory, and rhetoric of ownership, in New perspectives on law, culture, and society 28 (1994). 11 While no literature yet exists using this phrase to identify these educational practices by Native women, there is a long tradition of educational praxis through storytelling in many Indigenous communities. Brayboy, infra note 77. 40

The law naturalizes its colonizing and patriarchal practices as normative.

Witnessing my father physically abuse my young siblings was a microcosm of the white

supremacist capitalist patriarchy that controls and oppresses persons on a systemic level.

It took nearly two decades of adulthood to break the denial of abuse, molestation, and

assault normalized by adults during my teenage years, abuses of power in a complicit

system that helped normalize and make invisible my own trauma. My own realization

and naming of trauma and the subsequent, and continuing, journey of healing taught me

that the system itself reproduces this abusive and oppressive dynamic that concretely

manifests in Indian Country as violence against Native women. This awakening about the

structure of patriarchal violence led me to apply to the Ph.D. program in Rhetoric,

Composition, and the Teaching of English at the University of Arizona, leaving work in

communities with hopes for identifying better tools for transforming the unequal system.

This project integrates my own healing processes into a constructive project.

The shell of my own white fragility 12 was first cracked when I moved to

Memphis, TN for a graduate program in Continental Philosophy—a dream come true for

a first generation student for whom any university degree had once seemed out of reach;

it was a progressive program that was race- and gender-conscious about diversifying its graduate student pool because at the time, Philosophy remained dominated by white male scholars. It was here that I learned about CRT and feminism for the first time, reading the works of Audre Lorde and other Black feminists while living in a starkly segregated southern city—the color line was exactly how I had imagined the legally segregated south where my mother grew up in Paducah, Kentucky but it was 2001 and no longer

12 See generally Robin DiAngelo, White fragility: Why it's so hard for White people to talk about racism (2018). 41

1960. Overt and covert racism were alive and well, as the city was socioeconomically and

racially segregated and more than one person advised me and my partner against living

“where there are a lot of Blacks.” They didn’t know that my cousin—the only person I

knew in Memphis—was married to a Black woman and co-parented biracial children. I was disoriented and ashamed that I had never thought about how my three cuñadas

Latinas living in Arizona had experienced racism often, depending on their English proficiency and class status. After living in Memphis, I could no longer view any injustice through a colorblind lens; I began to awaken to the ways the white supremacist capitalist patriarchy differentially shaped my everyday life and the lives of my loved ones who are persons of color.

My philosophical training in CRT and ethical orientations grounded in lived experience, qua existential phenomenology, gave me the lexicon to think and talk about systemic racism. After trying to give life to these ethical theories in community-based nonprofits, my frustration with patriarchy led me back to academia. Patriarchal abuses of power consistently directed at female leaders in the organization where I worked as a program director reminded me of the pervasiveness and various forms of patriarchal violence. Intertwined with my hands-on confrontation with feeling disempowered by white patriarchy, I felt powerless to change the root causes of socioeconomic inequality experienced by the persons with whom I worked to secure economic resources. I returned to the academy hopeful to discover additional tools for changing the white supremacist capitalist patriarchy, which has now culminated in the present project.

This project represents a culmination of my training in Philosophy, Rhetoric,

Gender and Women Studies, and Law, an opportunity to apply these interdisciplinary 42 skills developed from each area of study towards making clearer the transformative praxis of Native women activists. My mental, physical, and spiritual journeys have intersected in this project because this activism represents a set of tools for me and others to change the system. These paradigmatic examples of innovative legal advocacy by

Native women must be memorialized, expanded, and circulated far and wide for future deployment by activists everywhere to continue to dismantle white supremacy in its colonizing patriarchy.

III. Legal Education and Feminist Theory

Before law school, I had been immersed in several discourse communities where the ideologies loaded into conceptual categories were continually critically questioned, never to be totalized and finally decided. Despite Philosophy persisting as a male- dominated discipline, it critically questions the foundational assumptions of knowledge.

In Philosophy, Gender and Women’s Studies, and Rhetoric at the graduate level, critical problematizing was often more important than any proposed solution or answer put forth.

After having studied these disciplines, I found law school classrooms to be intellectually closed and patriarchal spaces. However, where other disciplines represented open processes and theoretical orientations that could richly inform socioeconomic conditions if concretely applied, they often lacked concrete application in communities. This lack of direct theoretical application led me to study law.

Once immersed in the law school coursework and culture, unsurprisingly, I found most of the processes uncritical. Students were judged, graded, and ranked according to how well they could regurgitate the rules and rationales upholding the white supremacist 43

capitalist patriarchy. 13 In a word, the courses mostly utilized the banking concept of

education where students must conform or be cast out of the institutionalizing

assimilation process. 14 The force of cultural norms to conform to this patriarchal and

disembodied mode of learning was unlike my other graduate school experiences. My

abilities to read carefully and critically question basic assumptions did not help me excel

on law school exams. Still, I emerged from “one L” 15 having decided to persist in this

soul-depleting paradigm because I found feminist-activist friends.

I learned much in law school from my feminist friends and colleagues. They called out the underlying racism in class when a young Black man became quadriplegic due to a police officer terminating a high-speed car chase by ramming his car. Here, the

Supreme Court of the United States (SCOTUS) asserted the dashcam evidence was clear: the chase itself was a danger to other drivers and warranted the deadly use of force, which was a reasonable seizure under the 4th Amendment.16 Contrary to Justice Scalia’s

assertion, the evidence did not actually speak for itself, and Mr. Harris’s decision to flee

was reasonable given the reproduction and ongoing violence targeting Black men; while

this particular instructor was more tolerant than most, he kept us on track. Our counter-

legal-cultural comments and conversations before and after class kept my heart beating

13 Supra note 7. 14 Paulo Freire describes teachers utilizing the banking model of education as “talk[ing] about reality as if it were motionless, static, compartmentalized, and predictable...his task is to ‘fill’ the students with the contents of his narration.” Paulo Friere, Pedagogy of the Oppressed 57 (Myra Bergman Ramos Trans., The Seabury Press 1973) (1970). Further, “banking education maintains and even stimulates the contradiction through the following attitudes and practices, which mirror oppressive society as a whole….” Id. at 59. 15 “One L” is the designation given by law schools to the standard curriculum required of all first-year law students; this core set of courses is graded on a curve set by the law school itself, which sets up the top performing students to secure lucrative “One L summer” internships with private law firms. 16 Scott v. Harris, 550 U.S. 372 (2007). 44 amidst the patriarchal machinations of law school. Our conversations called out the falsehoods reproduced or otherwise invisibilized in terms of race, gender, and class.

These conversations with feminist colleagues, friends, and mentors often named the patriarchal processes intact in much of the law school pedagogy; we supported one another through the real emotional labor happening in moments like reading the case about the two-year old locked in a closet by her parents and suffocating to death, or the case about the three drunk teenage boys who left a man to die after running him over on the highway. The rationale or legal rule that had value for the final exam was intended to be completely disarticulated from the socioeconomic context of the cases themselves, situations shaped by race, gender, and class. There was no concurrent processing of the underlying emotional labor that many of us experienced and often processed outside class, articulating how “fucked up” the cases were by virtue of judges ignoring the underlying moral assumptions or systemic inequalities at play.

The silencing of the truth in the law classroom heightened the frustration I felt about the legal system not naming the structural reality of white supremacist capitalist patriarchy, a system in which I continue to benefit significantly from structures of whiteness. 17 In contrast, feminist pedagogy enacts a process of naming the emotional and moral import of disparate systemic conditions and brings the feeling body back to the law, breathing life back into it.

As a licensed attorney, I have gained a clearer understanding of how the legal system can name itself falsely as ensuring fairness couched as “due process.” That is, as

Dean Spade so insightfully recognized, the adversarial legal system reproduces victim-

17 Supra note 7. 45

perpetrator power of harms and does not acknowledge that structural inequalities play out

in terms of exclusion from the full rights of citizenship depending on externally ascribed

identities; instead, “the perpetrator perspective prevents us from looking at the unequal

conditions that entire populations experience because it focuses on the intentional actions

of individual discriminators.”18 The legal system self-ascribes its work as “fair and

impartial”; however, any person falling outside the normalized citizenship of the United

States conception of citizenship, those persons who do not “count,” know all too well that

the system is not fair and impartial unless you fall within the categorical confines of

normalized citizenship. The law protects persons who are both victimized in accordance

with its laws and are legible to its structure. The extent to which law school classrooms

are not critically reflective, they bolster the legal system itself against being self-

reflective and transformed by virtue of its reliance on tradition and stare decisis, “let the

decision stand.”19 When the U.S. common law system relies on controlling precedent to

decide future decisions and that same precedent is unwittingly rooted in a structure of

white supremacist capitalist patriarchy, it nearly guarantees that future precedent will

reproduce the same systemic disparities unless legal education moves toward raising

critical consciousness in the spirit of feminist pedagogy.

18 Dean Spade, Normal Life: Administrative Violence, Critical Trans Politics, and the Limits of Law 51 (2011). 19 Whereas law school clinics provide hands-on opportunities for students to directly serve communities— often persons with low income who have sought out the free clinic due to a lack of financial resources— students who enroll in “too many” clinics are allegedly less likely to pass the bar and less likely to find employment upon graduation. However, this myth is not grounded in empirical data. One recent study suggests quite the opposite, showing “that efforts to improve bar passage rates by capping experiential credits are misguided, as there was no correlation between experiential credits and bar passage at either school and no evidence that students most at risk of failing the bar were gravitating toward those courses and away from bar-related courses.” See Robert R. Kuehn & David R. Moss, A Study of the Relationship between Law School Coursework and Bar Exam Outcomes, 68 J. Legal Educ. 623 (2019). The bar exam, the law school curve, and hiring based on slipping into the “traditional” law school mold reaffirm and reproduce patriarchal pedagogy at law schools. 46

Using a rhetorical lens, analyzing legal texts such as a written statute necessitates

considering the author, audience, purpose, context, and the kinds of appeals made to

achieve the text’s purpose. Karlyn Kohrs Campbell explains that

Rhetoric is the study of the means by which symbols can be used to appeal to others, to persuade. The potential for persuasion exists in the shared symbolic and socioeconomic experiences of persuaders (rhetors) and audiences; specific rhetorical acts attempt to exploit that shared experience and channel it in certain directions. 20

However, statutes as well as case law in the U.S. have been authored primarily by white,

middle-class, male authors speaking to a homogeneous audience without any self-

reflexivity about how that narrow worldview shaped the texts themselves. Power

embedded in the law through statutes and cases remained rhetorical situations circulated

among primarily white male authors and audiences, writing and interpreting the law.

Textually, white supremacy is uncritically reproduced. However, third wave feminism

and feminist pedagogy deploy tactics to disrupt it.

IV. Critically Sovereign Feminist Methodology Enacted as Pedagogical Praxis

“Necesitamos teorías [we need theories] that will rewrite history using race, class, gender, and ethnicity as categories of analysis, theories that cross borders, that blur boundaries—new kinds of theories with new theorizing methods...We are articulating new positions in the “in-between,” Borderland worlds of ethnic communities and academies...social issues such as race, class, and sexual difference are intertwined with the narrative and poetic elements of a text, elements in which theory is embedded. In our mestizaje theories we create new categories for those of us left out or pushed out of existing ones. ~Anzaldúa (1990, pp. xxv-xxvi) 21

Many third wave feminists, such as Gloria Anzaldua, Audre Lorde, and bell hooks have

20 Karlyn Kohrs Campbell, Introduction to Man Cannot Speak for Her, in Walking and Talking Feminist Rhetorics 8 (2010). 21 See Solarzano, supra note 4. 47

used fluid concepts, such as metaphors, poetic language, and other literary devices to

convey theorizing methods that rearticulate the feeling body as part of lived experience, a

critical source of expertise possessed by women of color. Through utilizing language in a

way that captures the dynamic nature of life and living, theory and praxis become one

confluence of categorical analysis. Native women comprising the movement for the

safety of Native women deploy similar strategies of critical pedagogy to transform the

legal system, embodying a form of Indigenous Feminist Pedagogy. Doing so represents a

uniquely Indigenous adaptation of critical pedagogy that functions as a critical feature of

CSFM: a theoretically grounded research method that offers a popular education remedy

to genocidal tactics through storytelling.

Previously, Black and Latin@ feminist pedagogical methods have built upon

critical pedagogy to resist and transform dysconsciousness of the overlap of racism and

systemic inequality in the U.S. 22 This project utilizes these models as a starting point for

demarcating how the legal activism of Native women analyzed also serves as a feminist

pedagogical model for other legal activists. There is an urgent need for better articulating

these kinds of popular educational models for future activism, especially for lawyers

looking to transform the system.

Critical pedagogy was made popular by Paulo Freire and has been both widely

adapted and criticized. It sorts out how a banking concept of education reproduces

unequal hierarchical systems; “expert” teachers convey information to students, who are

expected to adapt to the norms of that system. Systemic power reproduces itself through

22 Gloria Ladson-Billings & William F. Tate, Toward a Critical Race Theory of Education, 97.1 Teachers College Record 47, 57 (1995). 48

the banking model. 23 Students do not critically reflect on their subjectivities and positions

within a system, reproducing domination. Legal education primarily utilizes the banking

model, despite framing itself as utilizing the Socratic method; the Socratic method as

introduced by Plato in the Theaetetus was a method of critical questioning where there

was not one “right” answer. 24 Legal education often promotes and reproduces students

who regurgitate the “right” answer despite the process of giving the analytic reasoning

for conclusions. Whereas contrary legal conclusions that are well-reasoned may be equally valid on a law school exam, only specific rationale based on one “natural” interpretation of legal precedence is correct. In this respect, there is always one “right” rationale to deploy, one that is distinctly “normalized” by the white supremacist genocidal patriarchy. Thus, the legal status quo is reproduced because one rationale or way of knowing is the “right” or “natural” one while other reasoning usually is viewed as illegible and “incorrect.” Persuasion itself depends on reproducing the “history and tradition” of case precedence.

The very process of problem-posing education avoids this “dichotomization” through a dialogical process wherein students and teachers increase their critical self- consciousness and understand “more clearly what and who they are so that they can more

23 Supra note 14, at 67. 24 In Apology, Socrates explains, “I have never promised or imparted any teaching to anybody, and if anyone asserts that he has ever learned or heard from me privately anything which was not open to everyone else, you may be quite sure that he is not telling the truth.” Plato, Apology, Plato: The Collected Dialogues 19 (Edith Hamilton & Huntington Cairns eds., Princeton University Press 1989) (1938). Socrates’s method is more in alignment with what Freire calls “[e]ducation as the practice of freedom—as opposed to education as the practice of domination.” See supra note 14, at 69. Also worth noting is that Socrates’s philosophy is only known through the dialogues written down by Plato and at age 70 “he was put to death at the hands of his fellow citizens on charges of impiety and corruption of the youth,” which is described in the Apology. James M. Ambury, Socrates 469—399 B.C.E., Internet Encyclopedia of Philosophy (Sept. 20, 2020, 2:54 PM). https://www.iep.utm.edu/socrates/. 49

wisely build the future.” 25 This practice aligns more accurately with how Socrates’s

method has been memorialized by Plato, describing his practice as “a midwife—who has

no ideas of his own but helps give birth to the ideas of others—and proceeds

dialectically—defined either as asking questions, embracing the practice of collection and

division, or proceeding from hypotheses to first principles.”26 Neither Socrates nor Freire

had one right answer in mind when posing problems to students. Freire relies on Alvaro

Vieira Pinto’s explanation of how this “method is, in fact, the external form of

consciousness manifest in acts, which takes on the fundamental property of

consciousness” or conscientization. 27 Students “come to see the world not as a static

reality, but as a reality in process.” 28 Thereby, critical pedagogy is problem-posing versus

problem-solving, critically co-investigating institutions and co-creating knowledge on

mutually agreed upon terms. However, bell hooks contests Freire’s strictly analytical

approach for building critical consciousness, highlighting his own critical self-

consciousness as occupying “the location of white maleness.”29

hooks challenges Freire’s emphasis on critical analysis; she believes it overlooks

embodied feelings, where passion/pain and love generate ideas. She distinguishes

between the “authority of experience” and “passion of experience,” emphasizing lived

25 Supra note 14, at 72. 26 See Ambury, supra, note 24. Beyond the scope of this project is discussion of Plato’s description of Socrates’s as a midwife with “no ideas of his own.” This blatantly sexist essentializing and diminutive reference to a female birthing professional having no capacity to reason is obviously false and to some degree embodies the misogyny of this historical period. Worth noting is the common practice of this time for rhetoricians and philosophers to silence women and not permit them to give public speeches. See supra note 20, at 7. 27 Supra note 14, at 56 (quoting Alvaro Vieira Pinto from work in preparation on the philosophy of science). 28 Supra note 14, at 71. 29 Supra note 7, at 9. 50

experience as a feeling-embodied epistemological source. 30 hooks advocates for changes

in teaching styles, including “[m]aking the classroom a democratic setting where

everyone feels a responsibility to contribute” and that building community requires

instructors to “recognize the value of each individual voice.” 31 Her processes facilitate student’s critical “pursuit of truth and the sharing of knowledge and information.”32 Like

Freire, hooks calls for co-created learning environments where collaborative processes

facilitate critical analysis of institutional constructs; however, she departs from Freire in

directly advocating for interrogating the white supremacist capitalist patriarchy.

hooks advocates for a “revolution of values,” drawing upon Dr. Martin Luther

King’s recognition of the intersection of racism, materialism, and militarism.33 Closely

connected with the systemic conditions of inequality is what she calls an “addiction to

lying and denial.”34 Through the help of mass media, patriarchal, capitalist, and white

supremacist domination is reproduced simultaneously while its existence is denied. This

systemic distortion is reproduced in the university, “so that it is no longer about the

practice of freedom.” 35 Oftentimes, law school classrooms are not about the practice of

freedom, or justice, for that matter. Law schools for the most part, reproduce lawyers who

conform to its normalization of white supremacy.

Through her feminist pedagogical epistemology, hooks outlines processes that

both transform the production of knowledge as coming from situated sources/

positionalities as well as inviting students to recognize their own passionate, lived

30 Supra note 7, at 90. 31 Supra note 7, at 40. 32 Supra note 7, at 29. 33 Supra note 7, at 27. 34 Supra note 7, at 28. 35 Supra note 7, at 29. 51

experiences as tools for learning and knowledge making; this emphasis on subjectivity

overlaps with CRT. This practice is rooted in theorizing derived from lived experience,

“a healing place.” Pedagogy as the “practice of freedom” must aspire to foster learner’s

critical transgression of racist, sexist, and classist norms, which is critically important for

lawyers working to change the legal system.

Deepening feminist pedagogy, Delores Delgado Bernal argues that “students of

color represent what Castillo (1995) describes as holders of knowledge who can

transform the world into a more just place.”36 She draws upon the frameworks of CRT

and LatCrit to expand pedagogical practices that invite students to share counter stories,

generating learning that helps students see themselves as creators of knowledge. Delgado

Bernal defines epistemology as a “‘system of knowing’ that is linked to worldviews

based on the conditions under which people live and learn.” 37

Alejandra Elenes’s Border/Transformative Pedagogy further adapts Latin@

feminist pedagogy and draws upon Gloria Anzaldúa’s “new mestiza consciousness.”38

Elenes shifts cultural reproductions of Chicana identities that are binary and allows for

complicated articulations as part of social justice activism. Elenes provides Chicana

Feminist re-imaginings of the figures of La Virgen de Guadalupe, La Llorona, and

Malintzin/Malinche as examples of practices that are key to transformative pedagogy.

Further, this practice also deconstructs essentialist constructions of chicano/a subjectivity

as “‘deviant’, ‘inferior’, or just simply a problem.”39 Elenes draws partly upon Henry

36 Delores Delgado Bernal, Critical Race Theory, Latino Critical Theory, and Critical Raced- Gendered Epistemologies: Recognizing Students of Color as Holders and Creators of Knowledge, 8 Qualitative Inquiry 105, 108 (2002). 37 See Supra note 36, at 106. 38 Alejandra C. Elenes, Transforming Borders: Chicana/o Popular Culture and Pedagogy 15 (2011). 39 See supra note 38. 52

Giroux’s and Roger Simon’s pedagogical orientation, which “acts with the intent of

creating experiences that will organize and disorganize a variety of understandings of our

natural and social world in particular ways.” 40 Reconstruction of these three feminist

figures illuminates “pedagogical practices that demonstrate how knowledge is

constructed, contingent, and ideologically committed.”41 Elenes’s Transformative

Pedagogy provides a framework for illuminating the kinds of disruptive pedagogy that

transform popular misconceptions of identity for members of racialized and silenced

groups. While these Black and Latin@ feminist pedagogical models provide models for

thinking about pedagogy as activism, CRT is a closely related theoretical framework

necessary for examining how identities have constructed systemic white supremacy.

A. Situating Critical Race Theory

The ways in which identities are ascribed determine fundamental access to systemic resources by way of legibility; whereas the legal system traditionally has not

questioned the ways in which power is reproduced within it, critical approaches have

been much needed. Critical legal studies arose as a response to legal education’s lack of

critical self-reflexivity and applied a critical lens to the structure of the legal system;

however, it did not adequately prioritize the ways in which race and racism shape and

reproduce the legal system, which creates exclusions from mechanisms of power on a

racialized basis. 42 Critical race theory (CRT), subsequently, began to examine structural

40 See supra note 38, at 17 (quoting Henry Giroux & Roger Simon). 41 See supra note 38, at 17 (quoting Henry Giroux & Roger Simon). 42 Andrea Smith, Heteropatriarchy and the Three Pillars of White Supremacy: Rethinking Women of Color Organizing, in Color of Violence: the incite! Anthology 66, 67 (2006). Critical Legal Studies fostered a movement by the late nineteen seventies that “became the organizing hub for a huge burst of left legal scholarly production and for various oppositional political challenges in law school institutional life.” Kimberlé Crenshaw et al (eds.), Introduction, Critical Race Theory: The Key Writings That Formed the 53

racism in the legal system, arising as an expansion upon critical legal studies. 43 Some of

the key CRT features integrated with this framework are as follows:

*an assumption that racism…is endemic in American life, deeply ingrained legally, culturally, and even psychologically; *a challenge to the “traditional claims of legal neutrality, objectivity, color- blindness, and meritocracy as camouflages for the self-interest of dominant groups; *an insistence on subjectivity and reformulation of legal doctrine to reflect perspectives of those…victimized by racism; *the use of stories or first-person accounts. 44

According to Omi and Winant in “Racial Formation,” a racial project is one that “creates

or reproduces structures of domination based on racial significations and identities.”45

Cornel West similarly explains that the discursive construction of white supremacy is a

project that “set[s] the perimeters and draw[s] boundaries for the intelligibility, and

legitimacy of certain ideas.” 46 West also describes how racism’s “logic is manifest in the

way in which the controlling metaphors, notions, and categories of modern discourse

produce and prohibit, develop and delimit, specific conceptions of truth and knowledge,

beauty and character, so that certain ideas are rendered incomprehensible and

unintelligible.”47 That is, if the system cannot account for non-normative identities because they are categorically illegible, then exclusion will translate as a lack of access to systemic protections and resources. Cheryl Harris’s critical race conception of the

Movement xviii - xix (1995). The development of Critical Legal Studies arose out of Legal Realism to form “the intellectual and theoretical basis for launching a full-scale critique of the role of law in helping to rationalize an unjust social order.” Id. 43 Richard Delgado & Jean Stafancic, Critical Race Theory: An Annotated Bibliography, 79 VA. L. Rev. 461 (1993). 44 Supra note 23, at 52. 45 Michael Omi and Howard Winant, Racial Formation in the United States 128 (3rd ed. 2015) (1986). 46 Cornel West, Genealogy of Modern Racism, Race Critical Theories 90, 92 (Philomena Essed and David Theo Goldberg eds., Blackwell 2002). 47 Supra note 46, at 91. 54 structural theory of “whiteness as property” recognizes property law as a fundamental mechanism of systemic inclusion or exclusion impacting disparate outcomes for persons of color in the U.S. 48

B. Whiteness as Property

Connecting systemic inequality and racism through the history of property rights functioning as de facto human rights in the U.S., Harris’s analysis of the logics of whiteness as property illuminates how socioeconomic inequality functions in legal discourse. Since the founding of the U.S., being perceived as “white” has bestowed rights and benefits that were not accessible to persons of color, especially property; these mechanisms of exclusion persist today. This lens of whiteness as property illuminates that when the civil rights movement based “pleas for social justice on an appeal to civil and human rights, they were ignoring the fact that the society was based on property rights,” encoded into property laws in the U.S. 49 Initially, property laws inured benefits of property ownership only for white males, white males who also possessed the right to own other men as property. 50 Part of the negotiation process of the states ratifying the

48 While this phraseology is admittedly jarring, it draws on a significant distinction captured by Harris in the tradition of CRT; for the purposes of this project, I use this phrase as coined so as to explicitly connect readers to this primary source guiding the framework herein. See supra note 3. 49 See supra note 22, at 53. 50 Sarah Deer importantly highlights that “[f]or most of American legal history, rape was framed as a property crime perpetrated against men. In fact, the phrase ‘marital rape’ was an oxymoron in American law until the early 1990s (married women had no legal right to deny sex to their husbands).” Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America 17 (2015). If rape is a property crime perpetrated against fathers and husbands, under the edifice of whiteness as property, Native men could not own property, implying that rape of Native women was not legible as a crime at all. See also Sarah Deer, Relocation Revisited: Sex Trafficking of Native Women in the United States, William Mitchell L. Rev. 641-69 (2020). The later article offers a robust analysis of the linkages between a plantation capitalism and the logics of white supremacy, slavery, and modern-day sex trafficking of Indigenous women. 55

constitution included articles protecting slavery and states’ rights, which remains an

enduring part of the legal system’s legacy because interpretation of the 13th, 14th, and 15th

post-Civil War amendments necessitated interpretation through the lens of the

constitution as a whole. 51 Constitutional provisions both incentivized the expansion of

slavery through increased political representation, but also guaranteed protections for

importing slaves.52 In this sense, the whole Constitution had to be considered when

SCOTUS interpreted the meaning of the subsequent amendments. This history of the

intertwining of racial subordination as white supremacy and property ownership explains

the current racist reproductions of exclusions in the legal system.

Despite the post-civil war reconstruction amendments and Civil Rights Act of

1866 requiring equal rights for persons of color, racist dependency discourse encoded

property rights in terms of dispossession for persons of color. The Jim Crow laws of the

southern states legally encoded the subordination of “colored” persons (anyone not

perceived as white) until the Brown v. Board of Education decision in 1954. 53 Ladson-

Billings and Tate point out how “the ability to define, possess, and own property has been

a central feature of power in America.” 54 Political power persists today as concentrated in

the wealthiest citizens and, derivatively, the largest corporations. In a capitalist system,

survival depends on financial stability derived from ownership of property; property

51 The constitution protected the property rights of slave owners in at least three ways: (1) through fugitive slave laws, (2) by granting slave-owning states the right to count slaves as giving the owner the right to 3/5th of an extra vote (with a corresponding tax burden), and (3) guarantee of the import of slaves until 1808. See Juan Perea, Echoes of Slavery II: How Slavery’s Legacy Distorts Democracy, 51 U.C.D. L. Rev. 1081, 1083 (2018). See also David Waldstreicher, The Mansfieldian Moment: Slavery, Constitution, and American Political Traditions, 43 Rutgers L.J. 471 (2013). 52 Perea, see supra note 51. 53 347 U.S. 483 (1954) (holding that segregation was inherently unequal and was a deprivation of the laws guaranteed under the Fourteenth Amendment where education was the most important function of government). 54 See supra note 22, at 53. 56

rights function as de facto human rights. Denial of property rights translates as

dispossession in terms of one’s labor (sometimes as lower wages or underemployment)

and/ or real property. Remembering the history of racism and property law is key for

decolonizing the investigation of how administrative law reproduces whiteness as

property in U.S. federal Indian law and policy. Property ownership and monetary wealth

has functioned as the de facto principal cultural value of the United States both before

and after the ratification of the Constitution.

Harris’s theory considers the social construction of whiteness as itself a form of

property. She explains that “[t]hrough slavery, race and economic domination were

fused.” 55 The history of the social construction of fictional race categories of “black” and

“white” and translated into the Jim Crow laws establishing a second-class citizenry where anyone non-white was “colored.”56 Whiteness as property lays at the core of economic

oppression and is embedded in legal public discourse as an exclusionary mechanism.

Whiteness as property functions to exclude persons of color from accessing mechanisms

of wealth creation; this exclusion was apparent most recently in the housing crisis where

disproportionate numbers of African-American and Hispanic/ Latino homeowners lost

their homes through foreclosure. 57 The red-lining of the “New Deal” era morphed into

the predatory sale of adjustable rate mortgages in the 21st century. That is, the logics of whiteness as property functions through economic structures, which became rooted in legal discourse in the 1660’s slave codes that constructed whiteness as a “source of

55 See supra note 3, at 1718. 56 Supra note 3. 57 The rate of African-American foreclosures were 76% higher and Hispanic/Latino foreclosures were 71% higher than non-Hispanic Whites. See James H. Carr, et al, The Foreclosure Crisis and Its Impact on Communities of Color: Research and Solutions, 5 National Community Reinvestment Coalition (Prepared for the Anne E. Casey Foundation Sept 2011). 57

privilege and protection.”58

The degree to which a person is not socioculturally perceived as “white,”

determines the ways in which exclusion from wealth-building mechanisms in the legal

system occurs; one who is not perceived as white is “colored.” Since the founding of the

U.S., being white ensured that a person could not become “an object of property”

(slavery) and was capable of possession of property (Native Americans deemed not

culturally capable of possessing individual property despite long histories of individual

ownership 59). 60 That meant only “particular forms of possession—those that were

characteristic of white settlement—would be recognized and legitimated.” 61 The majority

of wealth held in the U.S. is inherited generationally; the majority of elected members of

Congress continue to be persons whose accumulation of generational wealth comprises

the top 3% of wealth holders. Further, by “creating property ‘rights’, the law draws

boundaries and enforces or reorders existing regimes of power … [t]he inequalities that

are produced and reproduced are not givens or inevitabilities, but rather are conscious

selections regarding the structure of social relations.”62 Harris emphasizes how property is conceived broadly in the legal system, encompassing jobs, degrees, and intellectual property. However, Harris’s analysis of whiteness as property does not address adequately the racialization of Native Americans in terms of blood quantum, nor how whiteness is actually not a privilege or benefit where it simultaneously functions as a

58 See supra note 3, at 1720. 59 See Kenneth Bobroff’s scholarship about precontact property ownership of Indigenous Peoples. Retelling Allotment: Indian Property Rights and the Myth of Common Ownership, 54 Vand. L. Rev. 1559 (2001). 60 Sarah Deer draws attention to the fact that sex and other kinds of slavery of Native women first began as a tactic of colonization, and modern sex trafficking persists as a de facto form of slavery based on systemic racism. The link between slavery and violence against women cannot be adequately addressed here and is beyond the scope of this project. Relocation Revisited, see supra note 50, at 628. 61 See supra note 3, at 1722. 62 See supra note 3, at 1730. 58

form of dispossession. 63 For Native peoples, the would-be rights accrued by being

perceived as white is mostly a double-edged sword. While critical to understanding white

supremacy in relation to Native peoples in the U.S., Harris’s conceptualization must be

adapted specifically for framing the unique ways property rights impact Native peoples.

Kehaulani Kauanui does precisely this work, expanding Harris’s framework towards a

theoretical conception of whiteness as disappearance. 64

C. Whiteness as Disappearance Extending Critical Race Theory

The way the theoretical schema of whiteness as disappearance functions as an

extension of whiteness as property is well constructed in J. Kēhaulani Kauanui’s

Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity, which

provides a critical framework for thinking about the material impact of colonization on a

discursive and ideological level. 65 Despite Hawaii’s once sovereign status as the Kanaka

Maoli kingdom, U.S. territorialization and eventual enforcement of a blood quantum

classification at the federal level minoritized Indigenous Hawaiian people as a strategy

justifying the ongoing dispossession of their native lands and preempting future claims.

Further, the discursive ideology of whiteness as disappearance illuminates the long

history in the U.S. of the reproduction of the systemic conditions of socioeconomic

inequality on a racialized basis qua genocidal logics of settler colonialism.

Through the legal reproduction of white supremacy in property laws, whiteness

63 Blood quantum is an essentialized mechanism of federal Indian law’s property dispossession and other forms of systemic subordination beginning with the Indian Reorganization Act, formalizing the fiction that Indigenous ancestry is tied to a certain percentage of “Indian blood.” 64 Supra note 5, at 10. 65 Supra note 5. 59

was operative as an administrative schema that intended to assimilate the Indigenous

peoples of Hawaii and, thereby, dispossess their aboriginal claims to real property. In this

way, whiteness as determined by less than fifty-percent blood quantum 66 racially

essentialized Indigenous Hawaiians, while still resulting in dispossession of their claims

to property and relegating them to a racialized minority status without claims to

sovereignty. One key duplicitous feature of the discourse functioning in this schema is

how the fifty-percent blood quantum classification was attached to discourses of

dependency, which was a feature of so-called “entitlement programs” under the War on

Poverty. 67 While federal Indian law constructed the Indian citizen of federally recognized

tribes as “ward,” Indigenous Hawaiians who did not count as “Native Hawaiian” were

treated paternalistically through blood quantum criteria despite not having recognition

status that would otherwise be parallel with “Indian as ward” operative for other Tribal

Nations.

Whereas the identification of Indigenous Hawaiians based on their self-identified

kinship (genealogical) relations would have increased the number of persons who

retained access to their families’ native lands, the state’s enactment of blood quantum-

based determinations of identity ensured the minoritization of the Indigenous peoples to

diminish the potential U.S. property right liability intertwined with Hawaiian indigeneity.

66 The Indian Reorganization Act of 1934 defined “Indian” in part as persons with at least 50% blood quantum descendancy from one of the Indian tribes of the U.S. The definition of “Indian” will be discussed in depth in Chapter Two. 67 Based on Equal Protection rulings by SCOTUS in the late 80’s, entitlement programs applying to all poor persons and not persons of color were insulated from claims of unconstitutionality based on “invidious race discrimination” whenever the statute or practice has a clear intent to target a specific race and it can be proven that specific actors’ actions intended to achieve that racially conscious purpose. See McCleskey v. Kemp, 481 U.S. 279 (1987) (holding that where intent by specific actors could not be proven, racially disparate death sentences were not unconstitutional). That is, government programs targeting persons to benefit based on race would be declared unconstitutional despite any intended remedial measures to counter structural racism. Systemic exclusion is made judicially irrelevant by this SCOTUS legal rule. 60

The discourse of social welfare and, later, welfare reform, functioned to erase the operative white supremacy reproduced; through ensuring whites access to economic resources enjoyed as a property right, this tactic dispossessed Indigenous Hawaiians of property as well as sovereignty through dismemberment or exclusion from the category

“Native Hawaiian” via low blood quantum. Kauanui expands the logics of whiteness as property as it uniquely impacts Indigenous Hawaiians. In contrast with African

Americans who were considered “colored” based on the one-drop of blood rule,

Indigenous Hawaiians had to prove their high level of “Indian blood” to be included categorically as “Native Hawaiian.”

Kauanui explains how this hyperdecent is a key tactic of dispossession, held in contrast to the hypodescent or “one drop of blood” classification used during the Jim

Crow era to dispossess Blacks of status that otherwise might have been afforded if a person passed for white. 68 The key difference in property rights here is that being Black ensured one’s labor was not one’s own property (later, to be undervalued and stolen via criminalization), and being more than 50% Native Hawaiian assured ownership claims to

Hawaiian lands persisted as a continuing U.S. debt.69 That is, by requiring a more than

68 Laws such as the Virginia Racial Integrity Act, which were not overturned until 1967, persons were either “white” or “colored,” which meant that one drop of Indian blood classified persons as colored and not white. See Richard B. Sherman, ‘The Last Stand’: The Fight for Racial Integrity in Virginia in the 1920s, 54 The J. of S. History 69 (1988). Persons classified as “colored” could not enjoy the same privileges as whites in the segregated south. This strategy prior to 1934 preceded the reaffirmation of tribes’ self-determination under IRA. An exception called “Pocahontas Exception” was made for grandchildren with 1/16th or less Indian blood. See Virginia Racial Integrity Act, discussed at length in Kevin Noble Maillard, The Pocahontas Exception: The Exemption of American Indian Ancestry from Racial Purity Law, 12 Mich. J. Race & L. 351, 352 (2007). 69 For federally recognized tribes, reparations for land unlawfully taken were limited by several SCOTUS rulings in the first half of the 20th century. While Lone Wolf v. Hitchcock established that Congress could abrogate agreements made under treaties, just compensation still had to be made to federally recognized tribes when land was taken. 187 U.S. 553 (1903) (holding that Congressional plenary power permitted the abrogation of treaty rights). Alaskan tribes (there are no reservation lands held in trust) first had access to legal system via the Court of Claims (established by the Indian Claims Commission). However, the ruling in Tee-Hit-Ton Indians v. United States referenced in a footnote the potential U.S. liability if the right of 61 fifty-percent blood quantum, the legal system could classify identities of Indigenous

Hawaiians and utilize cultural assimilationist practices to justify the dispossession of property rights to certain descendants, thereby guaranteeing disappearance of Indigenous

Hawaiians along with the government’s liability for unconstitutional takings or future possible claims of Indigenous homeland rights under International human rights laws.70

These tactics are not surprising when considering the structural framework of whiteness as disappearance; Hawaiian lands are some of the most sought after and monetarily valuable properties in the world. Not to mention that part of the political rationale of the overthrow of Queen Liliuokalani was because the U.S. needed land in the south Pacific to build a military base for bolstering national security.71 While the relationship of Kanaka

Maoli peoples with the U.S. government is unique, 72 the effect of federal Indian law’s policies on other Tribal Nation peoples in the U.S. were similarly assimilationist and genocidal. Further, the practice of tribes adopting a constitutional template under the

occupancy granted under the Johnson v. McIntosh holding were applied; in effect, this holding was an effective move to “cook the books,” as ruling otherwise would mean acknowledging $9B in similar claims already filed at the time. 348 U.S. 272 (1955) (holding that takings of timber where Alaskan Natives held aboriginal rights to occupancy were not violations of the fifth amendment); see Donald Craig Mitchell, Sold America, The Story of Alaska Native and Their Land, 1867-1959, 403 (2003). 70 Under International Human Rights (IHR) law, a nation state that has exercised power over a sovereign territory in a manner that subordinates its peoples politically is no longer allowable if the territory is separated from the colonizer nation by “blue water.” Catherine Iorns makes clear that this doctrine is inadequate and misleading because it does not adequately address separate sovereigns with shared land borders or separated only by land, nor does it address sovereign Indigenous peoples whose territory is located off the coast of a colonizing nation state, such as the Torres Strait Islanders people in Australia. Under the Blue Water Doctrine, Hawaii is clearly a territory that should be protected under IHR law as self- governing. Catherine J. Iorns, Indigenous Peoples and Self Determination: Challenging State Sovereignty, 24 Case W. Res. J. INT'l L. 199, 255 (1992). 71 1893, January 17: Americans Overthrow the Hawaiian Monarchy (Jul. 11, 2020 7:05 AM), History.com, https://www.history.com/this-day-in-history/americans-overthrow-hawaiian-monarchy. 72 Indigenous Hawaiians are not federally recognized tribes, which does not afford them the same legal protections afforded to other Indigenous people in the U.S. under the trust doctrine and reservation structure. A complete analysis of these differences is beyond the scope of this project. However, because the core concern of the U.S. government’s liability for the dispossession of Indigenous peoples of land to which they originally had aboriginal rights of occupancy under the Discovery Doctrine, the core issue of property rights at the heart of whiteness as disappearance is similar to other Indigenous peoples of the U.S. regardless of this differential status. 62

Indian Reorganization Act (IRA) that included reference to blood quantum as a

qualification for membership reproduces federal policies embodying whiteness as

disappearance within Tribal Nation governments. 73 Through adoption of blood quantum

qualifiers as part of tribal constitutions, these sovereign governments became complicit in

the federal policy of whiteness as disappearance.

Kehaulani Kauanui’s text, Hawaiian Blood does the work of intervening in CRT

where it fails “to consider how the racialization of indigenous peoples, especially through

the use of blood quantum classification, in particular follows what Andrea Smith would

call a ‘genocidal logic’, rather than simply a logic of subordination or discrimination,

CRT fails to consider how whiteness constitutes a project of disappearance for Native

peoples rather than signifying privilege.”74 Kauanui, and Smith before her, importantly

point out that the logics of white supremacy plays out differently for Native women,

Black women, Arab/ Muslim women, Latinas, and Asian American women. For instance,

where a Slavery/Capitalism logics primarily shapes the way white supremacy impacts

Black women, a Genocide/Colonialism shapes the ways white supremacy impacts Native

women. 75 By raising this distinction, Smith made clear that organizing to disrupt white

supremacy looks different for different racial groups, and is at times in conflict, due to

the differential ways white supremacy impacts them. Kauanui makes clear that where

passing as “white” through assimilation into the dominant culture generally provides

73 I discuss the tactic of blood quantum in my article titled Tribally Defined Citizenship Criteria: Countering Whiteness as Property Interpretations of “Indian” for Restoring Inherent Sovereignty, 18 Hastings Race & Poverty L. J. 29 (2021). Available at: https://repository.uchastings.edu/hastings_race_poverty_law_journal/vol18/iss1/4. 74 Supra note 5, at 10. 75 Heteropatriarch, supra note 42. See also Leslie Espinoza & Angela P. Harris, Embracing the Tar-Baby-- LatCrit Theory and the Sticky Mess of Race, 85.5 California Law Review 1585 (1997); A. Smith, Conquest: Sexual violence and American Indian genocide (2005). 63

benefits for non-Indians, it entails the disappearance of cultural and racial difference for

Indians. By its very nature, whiteness or passing as white is genocidal for Native peoples.

By applying the lens of genocidal/colonial logics to critical race theory, it is enhanced to

better account for Indigenous dispossession of sovereignty and property, which I have

referred to as whiteness as disappearance to emphasize the adaptation of Harris’s

conception of whiteness as property initiated by Kauanui. 76

The lens of whiteness as disappearance makes clearer how the Indigenous

Feminist Pedagogy embodied in my two case studies disrupts the ways in which

structural white supremacy in the U.S. legal system specifically impacts Native women.

In order to make clear the logics of disappearance, critical race theory must first be

reshaped through consideration of Tribal Nation sovereignty. Bryan McKinley Jones

Brayboy did exactly this in his construction of Tribal Critical Race Theory (TribalCrit) as

a uniquely Indigenous adaptation of CRT for educational researchers and scholars. 77

D. How Sovereignty Shapes Critical Race Theory

Prior to occupation, Indigenous peoples in the U.S. existed as sovereign nations

since time immemorial. This inherent sovereignty determined the ways in which the U.S.

government, both as British colonies and later as a new government, formed treaties with

these nations. Inherent sovereignty shaped the relations between the U.S. and Tribal

76 Given the predominance of essentialized conceptions of identity and the politics surrounding it, it is worth noting that Kauanui’s theorization of disappearance as a unique way in which white supremacy plays out for Native peoples is based in part on the scholarship of Andrea Smith, who has been publicly criticized for claiming Cherokee identity as an act of identity theft. Independent of this controversy, her scholarship stands on its own merit for uniquely adapting critical race theory. See Scott Jaschik, Fake Cherokee?, Inside Higher Ed (Sept. 20, 2020 4:28 PM), https://www.insidehighered.com/news/2015/07/06/scholar- who-has-made-name-cherokee-accused-not-having-native-american-roots. 77 Bryan McKinley Jones Brayboy, Toward a Tribal Critical Race Theory, in Education, 37.5 The Urban Review 425 (2006). 64

Nations from the time of first contact. TribalCrit emphasizes that colonization is endemic

to society and how sovereignty uniquely shapes how racism plays out in colonizing

logics of a white supremacist system.

i. Tribal Critical Race Theory (TribalCrit)

In his article, “Toward a Tribal Critical Race Theory in Education,” Brayboy

makes clear that stories are inextricable from theories for many Native peoples. 78

Through narrative, Brayboy demonstrates the evolution of this realization for himself.

I once had an encounter with a colleague who told me that people like me ‘told good stories’ and later added that because I told good stories, I might not ever be a ‘good theorist’. I was struck by the seeming disconnect between community stories and personal narratives and ‘theory’. After this encounter with my colleague, I returned home to Prospect, North Carolina, one of the communities of the Lumbee tribe of which I am an enrolled member, and told several of my relatives and elders about my colleagues’ comments. My mother told me, ‘Baby, doesn’t she know that our stories are our theories?’79

This narrative highlights the ways in which Anglo worldviews naturalize and normalize

ways of knowing that are non-Native, creating a dominant narrative about what counts as

theory. Before him, bell hooks explained that

[w]ork by women of color and marginalized groups or white women (for example, lesbians, ex radicals), especially if written in a manner that renders it accessible to a broad reading public, is often de-legitimated in academic settings… They use it to set up unnecessary and competing hierarchies of thought which reinscribe the political domination by designating work as either inferior, superior, or less worthy of attention. 80

But as Brayboy explains, for many Indigenous peoples, “our stories are our theories— locating theory as something distinct from stories is problematic in Indigenous

78 Supra note 77, at 427. 79 Supra note 77, at 426. 80 Supra note 7, at 64. 65

communities…”81 There is simply no separation of the two, which represents a

foundation for Indigenous epistemologies that are distinct from dominant, Western

epistemologies.82 Brayboy goes on to explain, “For some Indigenous scholars (and

others), theory is not simply an abstract thought or idea that explains overarching

structures of societies and communities; theories, through stories and other media, are

roadmaps for our communities and reminders of our individual responsibilities

to the survival of our communities.”83 In light of this distinctive role of stories qua theory

for many Indigenous scholars, Brayboy determined that it was necessary to adapt the

orientation of critical race theory to provide a better lens for research in Indigenous

communities.

Brayboy explains that he constructed the theoretical framework of Tribal Critical

Race Theory (TribalCrit) because,

it allows …[him]… to address the complicated relationship between American Indians and the United States federal government and begin to make sense of American Indians’ liminality as both racial and legal/political groups and individuals. It is this liminal space that accounts for both the political/legal nature of our relationship with the U.S. government as American Indians and with our embodiment as racialized beings. 84

Brayboy recognizes the distinctly political relationship existing between Tribal Nations and the U.S. government. Where CRT recognizes race as endemic to society, Brayboy asserts that “the basic tenet of TribalCrit emphasizes that colonization is endemic to society.”85 This distinction begins to capture the uniqueness of Tribal Nations and their

81 Supra note 77, at 426. 82 See also infra Chapter Two, § Introduction, for Melissa Tatum’s and Jennifer Hendry’s discussion of epistemic closure. Justice for Native Nations: Insights from Legal Pluralism, 34:2 Arizona Law Review 91, 104 (2018). 83 Supra note 77, at 427. 84 Id. 85 Supra note 77, at 427. 66 relationships with the U.S. government in a way that CRT historically has not captured through the recognition that sovereignty and race are intertwined. Brayboy provides a summary of the nine tenets of TribalCrit as follows:

1. Colonization is endemic to society. 2. U.S. policies toward Indigenous peoples are rooted in imperialism, White supremacy, and a desire for material gain. 3. Indigenous peoples occupy a liminal space that accounts for both the political and racialized natures of our identities. 4. Indigenous peoples have a desire to obtain and forge tribal sovereignty, tribal autonomy, self-determination, and self-identification. 5. The concepts of culture, knowledge, and power take on new meaning when examined through an Indigenous lens. 6. Governmental policies and educational policies toward Indigenous peoples are intimately linked around the problematic goal of assimilation. 7. Tribal philosophies, beliefs, customs, traditions, and visions for the future are central to understanding the lived realities of Indigenous peoples, but they also illustrate the differences and adaptability among individuals and groups. 8. Stories are not separate from theory; they make up theory and are, therefore, real and legitimate sources of data and ways of being. 9. Theory and practice are connected in deep and explicit ways such that scholars must work towards social change. 86

Brayboy emphasizes that Tribal Crit frames the substantial shaping of society by both colonization as well as racism. His tenets provide a critically important articulation of the centrality of story to Indigenous education and research; stories are theories, ways of knowing, and data. Stories, theories, and concrete praxis are one and the same.

Brayboy’s adaptation lays the groundwork for research and scholarship in education to be better equipped to address structural colonization and racism as they specifically impact Native peoples in the U.S. In particular, the emphasis upon colonization and its intent to profit from the end goal of assimilation captures a critical difference in the lived experiences of Native people from African Americans; however,

86 Supra note 77, at 430 (emphasis added). 67

Brayboy does not centralize colonization as a form of genocidal logics as Kauanui’s

methodology does. But Brayboy keenly articulates the ways in which theory and practice

are inextricable for TribalCrit, necessitating that praxis as storytelling is part of theories

themselves; Kauanui’s methodology does not account for the role of educational praxis as

a form of social change in this way. For Brayboy, to theorize is to engage in a praxis of

social change. However, the activists in the movement for the safety of Native women

deploy several tactics with features that make their methodologies distinct from the

frameworks of both Kauanui and Brayboy.

ii. Features of a Critically Sovereign Feminist Methodology

The two case studies analyzed in this project, Sliver and Maze Report, embody

methodologies of Native women activists that uniquely comprise a critically sovereign

feminist methodology (CSFM). Whereas Brayboy’s Tribal Crit explains that “Indigenous

peoples have a desire to obtain and forge tribal sovereignty,” it fails to acknowledge that

sovereignty has existed for Native peoples in the U.S. since time immemorial and that

Native women play a fundamental role in sovereignty because of the legacy of sexual

violence against Native women as a tactic of colonization. 87 As Smith explains, “Because sexual violence has served as a tool of colonialism and white supremacy, the struggle for sovereignty and the struggle against sexual violence cannot be separated.”88 Recognition

of and legal attempts to diminish inherent sovereignty first and foremost shape relations

with the U.S. government and the material conditions of Indigenous peoples.

87 Supra note 77, at 430. 88 Smith, supra note 75. 68

Fundamentally, blood quantum limits what descendants can claim status as “Indian,”

which has served the end goal of assimilation for hundreds of years. 89

U.S. law bases “Indian” status on descendancy qua blood quantum, which

literally means that only a child born biologically from an “Indian” mother with sufficient

blood quantum counts as “Indian.” 90 In the crudest possible meaning of Native women

qua mothers, U.S. attempts to dispossess Tribal Nations of sovereignty occurred, in part,

through violence and disappearance of Native women; that is, as the Tribal Nation

citizens capable of giving birth to and ensuring future generations of citizens.91 In these

respects, this CSFM centers the role of Native women at the heart of Tribal Nation

sovereignty.

Whereas TribalCrit identifies the importance of adapting CRT to take account of

colonization and its constructive role in a white supremacist system, it does not

adequately account for the genocidal logics of assimilation in the way that Kauanui

explicitly links the tactic of blood quantum-based identities with a logics of disappearance. Her framework helps articulate more clearly the ways in which Native women’s methodologies comprise a new orientation towards thinking about white supremacy as genocidal logics. However, Brayboy’s theory emphasizing the inextricable

89 Supra note 5. 90 The significance of blood quantum becomes clearer in the section, “Whiteness as Disappearance” below. See also infra Chapter Two § Articulations of Whiteness as Disappearance in Federal Indian Law and Policy. 91 This project acknowledges that biological markers of being a “woman” are socially constructed; however, these limitations of basing the conception of “Native woman” upon biology and being cis- gendered is beyond the scope of this project. Further, not all Native women choose motherhood. In many ways these presumptions about being a “Native woman” are problematic, but this project is limited to addressing these conceptions as taken up by the U.S. legal system. The U.S. government conceives of Native women primarily as cisgender, based on biologically conceived sex markers. For this reason, the analysis of this project is limited to this conceptualization. For an insightful discussion of gender fluid roles from an Indigenous perspective, see End of Rape, supra note 50, at 19. Deer explains that in Mvskoke culture, the “framework for gender can also be described as nonbinary complementary dualism, wherein binary gender lines are fluid without fixed boundaries.” Id. 69 and overlapping nature of stories, theories, and praxis illuminates how these distinctly

Indigenous methods can themselves serve as meaningful data for research; his framework helps articulate how Native women’s methodologies can function as both meaningful research content (substance) and deployment as popular education processes (form). The activists in the movement for the safety of Native women distinctly expand the theoretical frameworks of whiteness as disappearance and TribalCrit to enact disruptive pedagogies functioning as praxis for a CSFM through counterstorytelling.

One way to begin to formalize theory from lived experiences is storytelling.

Third-wave feminists of color and critical race scholars have powerfully articulated counterstorytelling as activist praxis pushing against normative narratives of white supremacy. 92 Delores Delgado Bernal explains that “[b]y incorporating a counterstorytelling method based on the narratives, testimonies, or life histories of people of color, a story can be told from a nonmajoritarian perspective.”93 In Sister Outsider,

Audre Lorde narrates powerful examples of counterstorytelling that serve as documentation for her theories derived from lived experience. In the essay, “Eye to Eye,” she speaks to the method of naming the source of her pain and anger as part of a process of “catalyzing” it into something useful.

Pain is an event, an experience that must be recognized, named, and then used in some way in order for the experience to change, to be transformed into something else, strength or knowledge or action. 94

When survivors shared their stories of trauma, this trauma is catalyzed and integrated into a new form of knowledge that instructs others who are present with the storyteller.

92 See also Aja J. Martinez, supra note 4. 93 Supra note 36, at 116. 94 Supra note 9, at 171. 70

Storyteller and audience are transformed in the present. By naming the anger arising

from racism, patriarchy, and heterosexism, Audre Lorde explains how she catalyzed it

into constructive information about systemic exclusion. Lorde identifies anger as a “grief

of distortions between peers and its object is change…without denial or immobility or

silence or guilt.”95 Counterstorytelling is a powerful method because it asks the question,

“Who profits from all this?”96 Counterstorytelling functions with the process of naming

reality for transforming it.

Similar to Lorde, Ladson-Billing’s and Tate discuss “naming” as a method for countering myths of neutrality, meritocracy, objectivity, and color-blindness, recapping

Richard Delgado’s “three reasons for naming one’s own reality in legal discourse” as follows:

1. Much of reality is socially constructed. 2. Stories provide members of outgroups a vehicle for psychic self- preservation. 3. The exchange of stories from teller to listener can help overcome ethnocentrism and the dysconscious conviction of viewing the world one way. 97

Facilitating naming one’s reality as part of a critical feminist pedagogy decolonizes by

disorienting white supremacy reproduced in legal discourse. This project uses the lens of

CSFM, applied to Sliver and the Maze Report, to explore how testimonies and stories

served as counternarratives of identities in the movement for the safety of Native women,

circulating “outside” the fixed schema of the legal system. Critical race theory and

counterstorytelling framed by this CSFM methodology illuminate the significance of this

project’s case studies, which embody the praxis of Indigenous Feminist Pedagogy that

95 Supra note 9, at 129. 96 Supra note 9, at 129. 97 Supra note 22, at 57. 71

was effectively deployed to transform VAWA.

This critically sovereign feminist methodology (CSFM) is also recursive because

it arose through careful analysis of the case studies themselves; that is, the praxis of the

activists is inextricable from the theories guiding their methodologies. The stories

embedded in these case studies themselves provide both the theories and the praxis

creating this framework for meaningful analysis. The patterns articulated by these activist

texts become clearer through articulation of this adaptation of CRT. This theory may give

rise to future praxis. CSFM is defined as a theoretically grounded research method that

(a) acknowledges that the sovereignty of Native women is inextricably tied to the sovereignty of Tribal Nations and centers inherent sovereignty in all aspects of analysis; (b) challenges the tactics of disappearance illuminated by the lens of whiteness as disappearance as strategies of a structurally racist legal system aiming to assimilate Native peoples; (c) challenges traditional research paradigms that make invisible the white supremacist genocidal patriarchy 98; (d) offers a popular education remedy through counterstorytelling to genocidal tactics as well as race- and gender-based subordination (Indigenous Feminist Pedagogy); and (e) focuses on the sovereign, raced, and gendered 99 lived experiences of Native women as critical sources of expertise and power for transforming legal systems via popular education.

This critically sovereign feminist methodology challenges the structural white

supremacist tactics of disappearance, racist tactics specifically aimed at assimilating and

decimating Native peoples in the U.S. through genocidal logics. Whereas TribalCrit links

U.S. policies towards Native peoples with the end goal of assimilation, it does not frame

98 This phrase is an intentional adaptation of bell hooks’s phrase “White Supremacist Capitalist Patriarchy,” intending to represent the adaptation of a critical race approach that accounts for the genocidal logics of federal Indian law and policy. Supra note 7, at 47. 99 While white supremacy is acknowledged in its intersectionality with many modes of oppression besides race, gender, and citizenship of a sovereign nation, this project limits its focus to these features and modes of oppression. See D. Solarzano & T. Yosso, Critical Race Methodology: Counterstorytelling as an analytical framework, 8:1 Qualitative Inquiry 23, 25 (2002). 72

the system itself as structurally genocidal. CSFM names the white supremacist structure

as genocidal in its relationship with Tribal Nations and its citizens. CSFM also disrupts

these genocidal tactics through counterstorytelling and reclaiming fictionalized categories

of “Indian” operative in administrative law that eliminate difference and homogenize

cultural and linguistic differences across Tribal Nations. Native women sharing personal

stories of survival or murder humanizes the impacts of the jurisdictional maze in Indian

Country that fails to protect Native women. Where TribalCrit recognizes that stories are

inextricable from theory and praxis, CSFM more specifically acknowledges the power of

stories that circulate the tactics of disappearance and can disrupt the white supremacist

genocidal patriarchy. Through survivors sharing their own stories layered with their own

cultural traditions and ways of knowing, Native women counter these myths otherwise

serving the tactics of disappearance.

Federal assimilation policies and boarding school era tactics embodying “kill the

Indian, save the man” have changed form while still reproducing the structural framework of whiteness as disappearance. 100 Tactics of disappearance have also treated

Native peoples culturally as if frozen in time, without giving account of the current thriving governments and cultures of Tribal Nations. As Brayboy explained,

The everyday experiences of American Indians, the Indigenous inhabitants of the Americas, have essentially been removed from the awareness of dominant members of U.S. society. These viable images have instead been replaced with fixed images from the past of what American Indians once were. 101

Caricatures of Native peoples portrayed in popular culture make invisible the actual

existing citizens of Tribal Nations, replacing them with stereotypical accounts

100 Angelique Townsend Eaglewoman & Stacy L. Leeds, Mastering American Indian Law 13 (2013). 101 Supra note 77, at 431. 73

referencing a distant past. On the stage, Mary Kathryn Nagle points out that these

portrayals are often not even performed by Native peoples themselves, but white people

performing redface. 102 Both anachronistic portrayals of Native peoples as well as redface performances excluding the actual presence of Native peoples are just two examples of

tactics of disappearance reproducing the white supremacist genocidal patriarchy that most

often frames research; instead, the lens of CSFM reveals that disappearance of Native

peoples has been normalized and is operative in the “natural” and traditional research

paradigms.

CSFM offers a popular education approach, Indigenous Feminist Pedagogy, as a

remedy to disrupt the genocidal tactics of whiteness as disappearance through

storytelling. CSFM utilizes a variety of media and discourses to reach large-scale

audiences while deploying highly effective rhetorical strategies. Stories of survival told

by survivors or stories of violence told by the close loved ones of deceased victims

powerfully disrupt the framework of whiteness as disappearance on a mass scale. CSFM

disrupts on a structural basis through the praxis of pedagogy. It is useful here to compare

this framing of Indigenous Feminist Pedagogy to Sandy Grande’s theory of Red

Pedagogy. 103

For Grande, she views her work as “guided by the moral imperative to reimagine

school as a site of revolutionary struggle and in this way, reclaim the sovereignty and

102 See infra Chapter Three, § Disrupting the Fixed Concepts of “Indian” and “Indian Country.” Many movies continue to portray cast non-Indian actors to portray Native peoples, reproducing a modern version of redface, troping the idea that Native people have disappeared. Mary Kathryn Nagle started the hashtag “#insteadofredface” to promote the storytelling of native actors and playwrights. Instead of Redface with Mary Kathryn Nagle, Gonzaga University College of Arts & Sciences (Sept. 20, 2020 5:48 PM), https://www.gonzaga.edu/news-events/events/2018/3/19/instead-of-red-face-with-mary-kathryn-nagle. 103 Sandy Grande, Chapter 21: Red Pedagogy (Dec. 9, 2020 3:10 PM), 356 Counterpoints 199 (2010), www.jstor.org/stable/42980614. 74

self-determination of all Indigenous peoples.” 104 Further, she asserts that the “discourse of identity politics not only displaces the actual sites of struggle—sovereignty and self-

determination—but also obfuscates the real sources of oppression—colonialism and

global capitalism.”105 Whereas Indigenous Feminist Pedagogy is the form of concrete praxis that CSFM takes, Red Pedagogy serves as a theoretical framework guiding

educational processes for “un-thinking our colonial roots and rethinking democracy.”106

Grande explains seven precepts to guide education rooted in Red Pedagogy as follows:

1. Red Pedagogy is primarily a pedagogical project. In this context, pedagogy is understood as being inherently political, cultural, spiritual, and intellectual. 2. Red Pedagogy is fundamentally rooted in Indigenous knowledge and praxis. It is particularly interested in knowledge that futhers understanding and analysis of the forces of colonization. 3. Red Pedagogy is informed by critical theories of education. A Red Pedagogy searches for ways it can both deepen and be deepened by engagement with critical and revolutionary theories and praxis. 4. Red Pedagogy promises an education for decolonization. Within Red Pedagogy the root metaphors of decolonization are articulated as equity, emancipation, sovereignty, and balance. In this sense, an education for decolonization makes no claim to political neutrality but, rather, engages in a method of analysis and social inquiry that troubles the capitalist-imperialist aims of unfettered competition, accumulation, and exploitation. 5. Red Pedagogy is a project that interrogates both democracy and indigenous sovereignty. In this context sovereignty is broadly defined as “people’s right to rebuild its demand to exist and present its gifts to the world…an adamant refusal to dissociate culture, identity, and power from the land” (Lyons, 2000). 6. Red pedagogy actively cultivates praxis of collective agency. That is, Red Pedagogy aims to build transcultural and transnational solidarities among indigenous peoples and others committed to remaining a sovereign space free of imperialist, colonialist, and capitalist exploitation. 7. Red Pedagogy is grounded in hope. This is however, not the future-centered hope of the Western imaginations but, rather, a hope that lives in contingency with the past—one that trusts the beliefs and understandings of our ancestors, the power of traditional knowledge, and the possibilities of new understandings. 107

104 Supra note 103, at 199. 105 Supra note 103, at 200. 106 Supra note 103, at 200. 107 Supra note 103, at 208–09. 75

In some respects, Red Pedagogy is theoretically in alignment with CSFM itself,

especially in its recognition of pedagogy being “inherently political, cultural, spiritual,

and intellectual”; however, its scope of applicability as a theory is much broader where it

is not uniquely feminist in its theoretical orientation and does not specify pedagogy through storytelling as a key decolonizing strategy. 108 Further, while Red Pedagogy

promotes decolonization and recognizes the need to disrupt “the capitalist-imperialist aims of unfettered competition, accumulation, and exploitation,” it does not specifically address structural racism in relation to Native peoples as characterized by a logics of disappearance. Through Indigenous Feminist Pedagogy as a tool to disrupt the white supremacist genocidal patriarchy, CSFM articulates the expert and powerful contributions of Native women.

CSFM is defined as a theoretically grounded research methodology focusing on the sovereign, raced, and gendered lived experiences unique to Native women as critical sources of expertise and power for transforming legal systems. In particular, Native women qua mothers are inextricably connected to the existence of inherent sovereignty insofar as persistence of Tribal Nations is linked to blood quantum and the genocidal

logics of colonization has historically and fundamentally been linked to sexual violence.

That is, insofar as children born to Native women result in a minimum required blood

quantum determining citizenship in a Tribal Nation and thereby, counting as Indian,

Native women’s role as mothers shapes future Tribal sovereignty. 109 The Indian Child

108 Supra note 103, at 208–09. 109 Citizenship criteria varies for each Tribal Nation; however, the majority of Tribal Nations continue to require some level of blood quantum for citizenship. Also, nations such as Santa Clara Pueblo recognized children with one non-citizen parent only if the citizen parent is male. Santa Clara Pueblo v. Martinez, 436 76

Welfare Act (ICWA) also recognizes as much by connecting the importance of Tribal

Nations retaining control over its citizen children when removed from their homes. 110

Also, by ending violence against Native women, the genocidal logics of the white

supremacist genocidal patriarchy are disrupted. Related to this role as mothers is a long

history of genocide and rape. Because of the powerful role of Native women at the core

of Tribal Nations, colonizers waged war against their bodies, minds, and spirits. Sarah

Deer points out how rape is not just physical violence but also spiritual violence. 111

Through this Indigenous feminist lens of the history of rape, it becomes clearer how rape is not just physical genocide of Native peoples, but also spiritual and cultural genocide.112

Similarly, by removing Native children from their homes and the presence of their

mothers at a young age, U.S. government boarding school and urban relocation policies

aimed to mentally and spiritually destroy the cultural traditions of Tribal Nations.

Because the force of colonization as intended disappearance since the arrival of

Europeans in the Americas was directed first towards Native women, their lived

experiences provide unique expertise and remedies for countering the white supremacist

genocidal patriarchy. Sovereignty, race, and gender are inextricably intertwined for

Native women, who possess critical sources of expertise and power for transforming

legal systems. The manner in which CSFM concretely disrupts structural whiteness as

disappearance is via Indigenous Feminist Pedagogy.

U.S. 49 (1978). The variation of citizenship and blood quantum criteria is not addressed here and beyond the scope of this project. 110 Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963. 111 End of Rape, supra note 50. 112 The historical and continued desecration of sacred sites of Native peoples is proof of the intended spiritual genocide by the U.S. government. [Cite examples of dispossession, recently Bears Ears, Oak Flat in Arizona: https://www.nytimes.com/2015/05/29/opinion/selling-off-apache-holy-land.html. 77

V. Movement for the Safety of Native Women

“It is our belief that we are spirits on a human journey. In that way every step we take in our human life is a spiritual act. Every word we speak is a conversation with the Creator.” ~Tillie Black Bear, August 28, 2004113

Over the course of more than four decades Native women activists mobilized across the United States to bring awareness to the failure of the U.S. to protect Native women from violence. This movement took many forms, including protests, lobbying, popular media campaigns, and legal activism in U.S. courts. The movement was self- consciously strategic and this collective activism changed the relationship between the

U.S. government and Tribal Nations from many fronts.114 Two texts written by Native women lawyers stand out from this work because of the ways they articulate Indigenous

Feminist Pedagogy for broad audiences: Mary Kathryn Nagle’s Sliver of a Full Moon

(Sliver) and Amnesty International’s Maze of Injustice: The Failure of the U.S. to Protect

Native Women report (Maze Report). Each case study emphasizes the interconnectedness of race, gender, and sovereignty in a way that articulates the power of Native women to restore inherent sovereignty through a uniquely Indigenous Feminist Pedagogy.

Through application of CSFM to each of these case studies, the capacity of these kinds of popular education texts to influence legal policy becomes clearer. More specifically, CSFM highlights strategies deployed towards ending violence against Native women and restoring Tribal Nation sovereignty by disrupting structural tactics of disappearance. Once the pivotal role that the safety of Native women plays for the restoration of Tribal Nation sovereignty is made clearer, the inextricable connection

113 Jacqueline Agtuca, Safety for Native Women: VAWA and American Indian Tribes 13 (2014). 114 See supra note 113, at 15. 78

between the sovereignty of Native women and inherent sovereignty of Tribal Nations is also made clear.

The genius and persistence of Native women in the VAWA movement that began

in the 1970’s and continues today in the Missing and Murdered Indigenous Women

(MMIW) coalitions is undeniable. The most significant restoration of tribal sovereignty

since Oliphant would not have occurred without it. As Jacqueline Agtuca so eloquently explained, “European cultures, and later the United States, were governed by beliefs and laws that held women to be the personal property of her father or husband upon marriage; these cultures could not succeed in establishing their dominance in this country without changing the status of tribal women from an honored role to one of a possession.”115

Violence against Native women further illuminates the structural framework of whiteness

as disappearance: objectification of Native women perfected by the violence perpetrated

by non-Indians functioning as a foundational tactic of disappearance. Quite literally, there

is a long history of the rape of Indigenous women practiced globally as a method for

oppressing colonized communities.116 Acts of sexual violence traumatize not only the

physical body but also the spiritual and mental bodies of the person, treating the person as

a means to a sexual end. Doing so exists in a framework bolstered by a white supremacist

genocidal patriarchy, the ultimate right to include or exclude, reducing Native women to

their physical bodies qua objects. The genocide of rape is the ultimate silencing of Native

women. This dehumanization gets reproduced with discursive exclusion by fixing

conceptions of “Indian” in federal law that allow structural whiteness as disappearance.

115 See supra note 113, at 14. 116 Smith, supra note 75, at Chapter 7. 79

VI. Conclusion

This project enacts its analysis of the CSFM through the case study, Sliver, as a

clear memorialization of some of the strategies of Indigenous Feminist Pedagogy enacted

during the movement for the safety of Native women. Through counterstorytelling, both

storyteller and audience are transformed. Similar to Sliver as a platform for educating audiences, Amnesty International’s Maze Report also functioned to educate and reach broad audiences throughout the world. Legal scholar, Sarah Deer, was the principal author and deftly used the power of shaming to persuade congresspersons to vote for protections of Native women. While the Maze Report is not a living text in the same way that Sliver brings audiences into the presence of the storytellers, it breathes life into otherwise technical legal information through using stories in its own way. Through stories and a dynamic genre written in everyday language for broad audiences, the Maze

Report was able to function as a highly persuasive text of legal activism. Both Sliver and

the Maze Report changed hearts and minds across the globe through the praxis of

counterstorytelling as an integral feature of Indigenous Feminist Pedagogy.

By illuminating the ways in which Indigenous Feminist Pedagogy builds literacies

of legal activism that disorient the genocidal logics of structural whiteness as

disappearance, these important strategies are memorialized for other activist lawyers.

This kind of mapping of strategies for changing the legal system are particularly

important at a time when conservatives are making strides to roll back Roe v. Wade and

the Indian Child Welfare Act (ICWA) with a conservative majority on the SCOTUS;

also, there is a person 117 in the White House who is unapologetically and overtly racist

117 The election of Donald Trump to the office of President is widely contested. What is not contested are the ways in which he has fueled the flames of white supremacy and done almost nothing while more than 80 and sexist, thoroughly reaffirming a white supremacist genocidal patriarchy. By critically comparing the systemic reproductions of whiteness as disappearance qua exclusive identity categories in administrative law with popular education by Native women activists, it becomes clearer how these disorienting pedagogies can transform legal systems and lead to improved life chances for Native women and citizens of Tribal

Nations.

The next chapter illuminates more precisely how structural whiteness as disappearance shapes federal Indian law in the U.S. leading up to the passage of VAWA

2013. Doing so will set the stage for articulating the significance of the case studies in chapters three and four. In chapters three and four, this project traces the ways these activists increased literacies of whiteness as disappearance as forms of feminist pedagogy transformative for legal and political actions to increase critical sovereignty awareness while disrupting white supremacy. Articulating the features of these enactments of Indigenous Feminist Pedagogy further memorializes their power for future activists to emulate.

300,000 Americans have died of COVID-19, the majority of whom are persons of color. See Alan Gomez, et al, An unbelievable chain of oppression': America's history of racism was a preexisting condition for COVID-19, Oct. 20, 2020, USA Today (Dec. 30, 2020 7:38 PM), https://www.usatoday.com/in- depth/news/nation/2020/10/12/coronavirus-deaths-reveal-systemic-racism-united-states/5770952002/.

81

Chapter Two Whiteness as Disappearance in Federal Indian Law: Epistemic Closure of “Indian” and Its Impact on Native Women

"We are never as steeped in history as when we pretend not to be, but if we stop pretending we may gain in understanding what we lose in false innocence." ~Michel-Rolph Trouillot1

“As the nation looked to the West for more land, this agency participated in the ethnic cleansing that befell the western tribes... it must be acknowledged that the deliberate spread of disease… and the cowardly killing of women and children made for tragedy on a scale so ghastly that it cannot be dismissed as merely the inevitable consequence of the clash of competing ways of life. … After the devastation of tribal economies and the deliberate creation of tribal dependence on the services provided by this agency, this agency set out to destroy all things Indian. This agency forbade the speaking of Indian languages, prohibited the conduct of traditional religious activities, outlawed traditional government, and made Indian people ashamed of who they were. Worst of all, the Bureau of Indian Affairs committed these acts against the children entrusted to its boarding schools, brutalizing them emotionally, psychologically, physically, and spiritually... the legacy of these misdeeds haunts us.” ~Kevin Gover, then Assistant Secretary – Indian Affairs, US Department of the Interior, at the Ceremony Acknowledging the 175th Anniversary of the Establishment of the Bureau of Indian Affairs, 8 September 20002

I. Introduction

U.S. Indian 3 law and policy persistently impact Tribal Nations through its genocidal logics of disappearance. The dominant U.S. legal culture relies primarily on fixed legal conceptions to control and manage its relationship with Tribal Nations in the

U.S. In “Justice for Native Nations: Insights from Legal Pluralism,” Jennifer Hendry and

Melissa Tatum explain how Native communities often deploy a pragmatic approach to

1 Michel-Rolph Trouillot, et al., Silencing the Past Power and the Production of History xix (2015). 2 Kevin Gover, Ceremony Acknowledging the 175th Anniversary of the Establishment of the Bureau of Indian Affairs, 8 September 2000, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA Report, Amnesty International 15 (Oct. 25, 2020, 5:32 PM), https://www.amnestyusa.org/pdfs/mazeofinjustice.pdf (Maze Report). 3 While “Indian” is identity assigned by colonizing Europeans due to an error when encountering Native peoples in what has become known as the Americas, I use it throughout this chapter because of its technical meaning in federal Indian law. It is racist and connotes an inaccurate rationale inscribed by colonization. 82

interacting with U.S. legal systems through adaptation of form and processes in order for

the substantive and normative content of their own legal cultures to be made legible to

the dominant legal culture. 4 These authors explain through analysis of several case

studies how tribal legal orders have “translat[ed] normative cultural practices into

identifiable legal forms….”5 Such adaptation undermines the dominant legal culture’s

essentialization of Native peoples as “Indian” and its assertions functioning as “epistemic

closure” of discrete and fixed categories. 6 This process of translation of tribal legal orders

into the form required by dominant legal cultures demonstrates a form of literacy of the

structural supremacy of dominant legal cultures as well as the tactics of disrupting them

via processes that translate and make legible the legal orders of Tribal Nations. The two

case studies analyzed in this project, Sliver of a Full Moon play and Amnesty

International’s Maze of Injustice report made legible the concrete impact of federal laws

and policies on the lives and life chances of Native women, embodying a form of

Indigenous Feminist Pedagogy that disrupts the epistemic closure operative in the U.S.

legal system.

In order to understand the ways in which this Indigenous Feminist Pedagogy

disrupted the epistemic closure of federal Indian law (FIL), it is important to first

understand how FIL has been shaped by policies of disappearance since the formation of

the U.S. This chapter illuminates the key historical moments in the relationships between

the U.S. government and Tribal Nations and the ways in which epistemic closure of legal

4 Melissa Tatum and Jennifer Hendry, Justice for Native Nations: Insights from Legal Pluralism, 34:2 Arizona Law Review 91, 104 (2018). 5 Supra note 4, at 110. 6 See supra note 4 (citing Simone Glanert & Pierre Legrand, Law, Comparatism, Epistemic Governance: There is Critique and Critique, 18 German L.J. 701 (2017); Pierre Legrand, European Legal Systems Are Not Converging, 45 Int’l & Comp. L.Q. 52, 65-66 (1996)). 83

categories shaped concrete outcomes. This relationship can only be accurately understood

through the lens of property law and its molding by systemic white supremacy, a property

right of “whiteness” that inures primarily to the benefit of persons perceived as white and

privileges socioeconomic inclusion. However, whiteness attributed to Native peoples is

actually a form of de facto disappearance of political and cultural sovereignty and

identity. This theoretical framework of “whiteness as disappearance” helps illuminate the

relationship between the U.S. government and Tribal Nations since occupation of the

Americas.

This chapter traces how a theory of whiteness as disappearance, a critical race

adaptation of whiteness as property derived from Kēhaulani Kauanui’s work, accounts

for the genocidal logics primarily shaping U.S. Indian policy. 7 By making clear how this

genocidal logics applies similarly to all federally recognized Tribal Nations, it becomes

possible to illuminate how the project of disappearance has been enacted in various ways

leading up to the Oliphant decision in 1978.8 Using this lens, the chapter then traces the

significance of each era of federal Indian law and policy: Treaty, Allotment,

Reorganization, Termination, and Self-Determination. This overview establishes the backdrop against which the significance of the dispossession of sovereignty effected by the Supreme Court of the U.S. (SCOTUS) in Oliphant becomes apparent. 9 Doing so

7 It is worth noting that to my knowledge, Kauanui does not explicitly name her project in Hawaiian Blood as an adaptation of whiteness as property; however, her recognition of the role of disappearance in whiteness as property for Native Hawaiians seems to imply as much. However, this naming of “whiteness as disappearance” are my phrasing and intends to generalize to other relationships between Native peoples and the U.S. government. Kauanui, J. Kēhaulani, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity 10-11 (2008). 8 Infra note 9. 9 435 U.S. 191 (1978) (holding that tribes do not have criminal jurisdiction over non-Indians perpetrating crimes in Indian country where allotment era policies allegedly never intended Tribal Nations to exercise jurisdiction over non-Indians). 84

illuminates the importance of the passage of the Violence Against Women Act of 2013 with tribal provisions (VAWA 2013), incrementally restoring sovereignty over non-

Indians. 10 This tracing of how whiteness as disappearance has been conscripted in the history of federal Indian law and policy through certain expectations, terms, and practices, will make clearer how the two case studies analyzed in chapters three and four enacted a form of Indigenous Feminist Pedagogy disrupting these tactics.

II. Articulations of Whiteness as Disappearance in FIL and Policy

Property owning white males in power decisively determined federal Indian law and policy in the formative years of the U.S. These early players shaped a narrative of dependency that limited Tribal Nation’s inherent sovereignty to a position of subordination to the U.S. government in terms of land rights and political power. This narrative was first woven with three SCOTUS cases referred to as the Marshall Trilogy11 that established three principles: (1) Congress’s power over Indian affairs is plenary and

10 Violence Against Women Reauthorization Act of 2013 (Pub. L. 113-4, 127 Stat. 54). 11 The Marshall Trilogy refers to a series of three SCOTUS cases written by John Marshall that establish the original parameters of Federal Indian Law in the U.S.: Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823) (holding that tribes were not “civilized,” which precluded the recognition of Indian fee simple title ownership by the U.S.; Britain had fee simple title under the Doctrine of Discovery, so all lands owned by Britain transferred to U.S. after revolutionary war); Cherokee Nation v. Georgia, 30 U.S. 1 (1831) (where the Cherokee Nation injunction to stop Georgia’s laws from being imposed on its territory was denied because Cherokee nation is a state and not a foreign nation, thus, SCOTUS has no jurisdiction over the dispute between two states); Worcester v. Georgia, 31 U.S. 515 (1832) (holding that Georgia judgment was void, interfering forcibly with relations between U.S. and Cherokee Nation where Georgia had attempted to enforce its law imposing fines for whites on the Cherokee Nation). Collectively, these opinions establish the trust relationship between the U.S. government and tribes as one giving tribes the right to exclude persons from their aboriginal lands (occupancy rights only under Discovery Doctrine proclaiming “uncivilized” people could not own land in fee); established tribes as sovereign wards of the U.S., as “Domestic Dependent Nations”; and recognized the lack of authority by states over tribes. For an extensive analysis of the rhetorical strategies used to justify these legal opinions, especially with regard to characterizing Native peoples as “savage,” see Robert A. Williams, Jr., Savage Anxieties (2012); see also Robert A. Williams, Jr. The American Indian in Western Legal Thought: The Discourses of Conquest (1990). 85

exclusive (with trust responsibility); (2) State governments have no authority to regulate

Indian affairs absent express congressional delegation or granting in accordance with the

federal government’s trust obligations; and (3) sovereign authority of Indian tribes is

inherent, not delegated/granted by the U.S., but can be limited/restricted by Congress in

accordance with its trust responsibilities (Congress must clearly express its intent to

abrogate any aspect of tribal sovereignty).

The underlying principles of federal Indian law have their roots in the religious

Crusades and Catholicism’s intent to spread its religious “truths” to all nonbelievers.

During the period when the Pope’s authority exceeded the authority of kings, any civilization that was not Christian was considered “infidel” and subject to subjugation; that is, papal sovereignty came from God and any nation operating under some other

authority was illegitimate. 12 In fact, papal orders initially justified European “discovery”

and acquisition of lands occupied by non-European Indigenous peoples as a divine edict from God. Decimation of Indigenous cultures and assimilation into western European societal norms is inextricable from the history of Catholic missionaries and the papal orders to convert all non-believers to Christians under the authority of God. 13

12 David H. Getches et al., Cases and Materials on Federal Indian Law 49 (7th Ed., American Casebook Series 1979) (2017). See also Savage Anxieties, supra note 11, at 170–78. 13 Getches, supra note 12. 86

A. Marshall Trilogy: Cannons for Construction of Disappearance

Table 1. Marshall Trilogy

MARSHALL TRILOGY

CASE JOHNSON V. CHEROKEE NATION V. WORCESTER V. GA (1832) MCINTOSH (1823) GA (1831)

KEY -Discovery Doctrine -Domestic Dependent -U.S. “protects” Cherokee PRINCIPLES -Indian Right of Occupancy Nations (DDN) Territory -Federal law preempts state & occupies the field

HIGHLIGHTS -Indian land owned by Tribal Nations are: Key Rationale: OF RATIONALE federal gov’t, held in trust (1) Nations (1) Federal Protection - & until extinguished (2) Physical location Treaty Nation RHETORICAL -Reverter provision if tribe in US (merely - Tribes have property CATEGORIES goes extinct. right of right to exclude. occupancy) (2) Trade & Intercourse (3) Textual Support - Act – Art. I, Sec. 8 still Commerce Clause applies of Constitution (3) Commerce Clause -Powers of war & peace (grants authority over -May not enter treaty with Indian tribes) anyone but U.S. govt -“Ward to guardian” (by -Holding solidified status of virtue of placing selves in DDN protection of US, made -Guarantee of U.S. protection as DDN) “ward.” -”Savage” (implied dependency on U.S.) LEGAL CANONS OF -Trust relationship CONSTRUCTION: -Protection does not imply DISSENT RE: FOREIGN destruction NATION: -Hunting rights construed as Thompson & Story: Self- Indians would. governing nations are sovereign & foreign nations. Law of Nation Df: “Every nation that governs itself, under what form soever, without any dependence on a foreign power, is a sovereign state.” 14

It is in this context in which the colonization of the aboriginal lands now comprising the U.S. occurred and were reaffirmed by the Marshall Trilogy of cases.

Legal opinions generated during the Crusades accounted for a “large corpus of legal

14 Getches, supra note 12, at 134. 87

opinions and theories on the rights and status of infidel peoples” in international

customary law. 15 To the extent that the Marshall Trilogy relied on international law based

on religious beliefs of papal sovereignty, U.S. common law was rationalizing its

SCOTUS holdings based on religion. 16

i. Johnson v. McIntosh17: Discovery Doctrine

The SCOTUS decision, Johnson v. McIntosh, reproduced the medieval Crusades

ideology of conquering “infidels, heathens, savages” in its reliance on the Doctrine of

Discovery as its primary rationale for determining the aboriginal property rights of the

Illinois and Piankeshaw nations.18 The case was brought by two white, non-Indian land

speculators, where Tribal Nations did not obtain standing in U.S. courts until the Indian

Claims Commission established access to the courts under the Indian Claims Act of

1946. 19 Both parties claimed ownership of the same land where Mr. McIntosh’s land was

granted originally to Mr. Murray before the Revolution by the Tribal Nations in

possession of the land since time immemorial, and Mr. Johnson’s land that had been

conveyed to him by the U.S. government. The court held that the Tribal Nations’ prior

ownership was not fee simple20 based on the Doctrine of Discovery limiting tribes’

15 Getches, supra note 12. 16 While beyond the scope of this project, it might be argued that the Marshall Trilogy violated the establishment clause of the First Amendment of the Constitution by relying on precedent based in religious supremacy. The establishment clause prohibits the U.S. government from establishing a single religion or implying as much. It is also worth noting that the United Nations Permanent Forum on Indigenous Issues released a comprehensive study of the Doctrine of Discovery on Indigenous peoples. Getches, supra note 12, at 53-54. 17 21 U.S. (8 Wheat.) 543 (1823). See also Johnson & Graham’s Lessee v. McIntosh, Justia (Mar. 29, 2019), https://supreme.justia.com/cases/federal/us/21/543/#tab-opinion-1922743. 18 Getches, supra note 12, at 71-2. 19 Indian Claims Act of 1946, 60 Stat. 1050, 25 USC 70a et seq. 20 Most broadly, “fee simple” or “fee simple absolute” is the customary title vesting of real property in the U.S. today; it generally includes all rights to occupy, sell, and transform improvements on the land both above and below with the exception of mineral rights, which are customarily excluded from fee simple 88

property rights to mere occupancy where Britain had held the title until transferred to the

U.S. after the Revolutionary War. The underlying rationale of the Discovery Doctrine

was adapted from the same rationale underlying colonization complementing the spread

of Catholicism: non-Christian persons were not “civilized”; thereby, their rights to

property despite being first-in-time21 according to ancient Roman law were not legally

cognizable by virtue of their not demonstrating western European cultural practices.

These seeds of disappearance had already been sown by hundreds of years of global

colonization. More specifically, the land was referred to as Terra Nullius [land belonging

to no one] under the Doctrine of Discovery; Native persons were dehumanized and not

viewed as persons at all. 22 This racist framework of disappearance still shapes federal

Indian law and policy. In McIntosh, Chief Justice John Marshall wrote,

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. […] But the tribes of Indians inhabiting this country were fierce savages whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness…. 23

ownership. Fee simple endures forever. See, e.g., Jesse Dukeminier et al., Property 255 (9th ed. 2017). 21 Since Roman times, the common law has long held that the first owners to occupy land were the rightful owners. “Private ownership was imagined to have developed according to agreements, explicit ones or those implied by occupation; it was to be “supposed” that whatever each person took possession of should be that person’s property. See supra note 20, at 12. 22 The idea of Terra Nullius accurately captures and embodies the framework of whiteness as disappearance; the land belongs to no one because Native peoples were not counted as persons, making them invisible as the true owners. Whereas African American persons enslaved were counted as three-fifths persons for the sake of population determining representation according to the constitution, Native peoples were not counted as persons at all. See the High Court of Australia’s exception to Terra Nullius in recognition that that some aboriginal Australians hold proprietary property rights or “native title.” Mabo v Queensland (No 2) [1992] HCA 23, (1992) 175 CLR 1 (3 June 1992), High Court. See also What the Hell Happened to Mabo?: The Search for the Missing Link, in The Limits of Change: Mabo and Native Title 20 Years On 24 (Toni Bauman & Lydia Glick eds., 2012). 23 McIntosh, at 573-590 (emphasis added). 89

Justice Marshall’s rationale not only diminishes the humanity of Native peoples, it also

attributes the law of accession derived from John Locke’s theory of property where only

land that had been “improved” in some way was recognized as having established first-

in-time ownership; that is, land that was both occupied and productively cultivated had

increased the occupant’s ownership rights under the law of accession. 24

This circular genocidal logic reproduced dispossession of lands by virtue of

making invisible Native peoples’ improvements to land that differed from European

traditions of land utilization, that is, clear cutting forests for agricultural and settlement

purpose. 25 These racist beginnings formulated a poisonous root flourishing today in the

tree of modern policies. This cultural blindness led to the continual reinforcement of the

perception of Native peoples as not “civilized” as their forms of civilization were always

already invisible, justifying persistent and expansive white greed for additional land and

resources.

According to Marshall, the specific tribes of the Illinois and Piankeshaw nations

had not improved the land in a legally cognizable way. McIntosh firmly established the

rule that Native people’s property rights would not be fully recognized by the U.S. and

would be impaired and limited to the rights of occupancy that could only be conveyed

24 The law of accession is a fundamental principle of common law; it assumes that value is only added to land through productive use, which is clearly a cultural norm of western European societies. See supra note 20, at 15. 25 It should be noted that this rationale homogenized tribes without taking into account that the majority of Native peoples in the southwest and pacific northwest had sophisticated agricultural communities with extensive canal systems for raising crops. For example, the Pima Indians near Phoenix and the Sinagua near Rim Rock built extensive canal systems for irrigation. See Exploring Montezuma Well, National Park Service (Mar. 31, 2019), https://www.nps.gov/moca/planyourvisit/exploring-montezuma-well.htm. See also History and Culture, Salt River Pima-Maricopa Indian Community (Mar. 31, 2019), https://www.srpmic- nsn.gov/history_culture/#earlyhistory; this website clearly articulates the confusion contributed by archaeologists giving their own names to Native peoples, such as the Hohokam, and citing their unexplained “disappearance.” The Pima and Maricopa Indians are flourishing still today and are the descendants of the creators of the extensive canal system, unprecedented elsewhere in the Americas, that facilitated the growth of Phoenix to what it is today. 90

with U.S. government approval. 26 This case marks Justice Marshall’s rhetorical

acrobatics of devising a “solution” for Indian property rights that did not entirely divest them of all interest while ensuring the U.S. government ultimately controlled the ability to transfer and manage these lands as fee title. If aboriginal property rights had been recognized fairly as fee simple ownership, it also would have voided the Federal land grants upon which the nation’s economy was based. 27 The additional evil of Tribal

Nations’ land dispossession contributed to the U.S. “plantation capitalism” fueled by the industry of slavery that objectified African Americans while dispossessing them of their labor upon which the U.S. was also built; this horrific legacy directly links the dispossession of African American labor and Tribal Nation lands as an embodiment of whiteness as dispossession and disappearance. 28 The affirmation of the Discovery

Doctrine by Johnson v. McIntosh further constructed the edifice of whiteness supremacy

in the U.S., later to be bolstered by the rationale that Tribal Nations are actually

“domestic dependent nations.”29

ii. Cherokee Nation v. Georgia: Domestic-Dependent Nations

Where Johnson v. McIntosh shored up the U.S. property rights of Tribal Nation

lands, Cherokee Nation v. Georgia firmly limited the recognition of tribes as sovereign

nations treated equally with other foreign nations, further dispossessing Native peoples of

26 See supra note 24. 27 Felix S. Cohen. Original Indian Land Title, 32 Minn. L. Rev. 28, 48 (1947). 28 For a robust discussion of the connections between colonization, slavery, dispossession, and sexual predation both past and present, see Sarah Deer, Relocation Revisited: Sex Trafficking of Native Women in the United States, William Mitchell L. Rev. 641-69 (2020). 29 Cherokee Nation v. Georgia, 30 U.S. at 1 (1831). 91

their power to exercise property rights and self-governance. 30 This case was brought by

the Cherokee Nation to enjoin acts by the state of Georgia that effectively intended to

“annihilate the Cherokees as a political society, and to seize, for the use of Georgia, the

lands of the nation which ha[d] been assured to them by the United States in solemn

treaties repeatedly made and still in force.” 31 However, Justice Marshall dismissed the

case as a refusal to recognize the nation’s sovereignty as a foreign nation independent

from the United States; that is, SCOTUS would have had jurisdiction to adjudicate a

matter between a foreign nation and one of its states.

Despite having made treaties with the Cherokee Nation, an act usually performed

only between sovereign nations under customary international law, the U.S. refused to

acknowledge the nation’s full sovereignty despite using this treaty making to establish its

legitimacy as a new nation amongst other colonizing nations. The rationale underlying

this opinion is made clear in the opening lines, describing Native peoples as:

[a] people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain, gradually sinking beneath our superior policy, our arts and our arms, have yielded their lands by successive treaties, each of which contains a solemn guarantee of the residue.... To preserve this remnant, the present application is made. 32

This passage memorializes the near total dispossession of Native people’s lands that had

already occurred less than 100 years after the drafting of the Constitution, while also

troping white supremacy as “superior policy” by having done so.

30 Id. at 22 (holding that “the majority is of opinion that an Indian tribe or nation within the United States is not a foreign state in the sense of the constitution, and cannot maintain an action in the courts of the United States.”). 31 Id. at 15. While beyond the scope of this paper, it is worth noting that Georgia’s intent to expand its territory into the Cherokee Nation was closely linked to its agricultural economy that relied on slave labor; prior to the civil war, the U.S. economy depended on agriculture. 32 Id. at 15. Arguably, the only “superior” feature of U.S. policy was its “superior” immoral willingness to enforce mass genocide to increase its sovereign territory. 92

Cherokee Nation reaffirms the racist rationale of the Discovery Doctrine, making clear that the U.S. government considers Native peoples to be

within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens. They acknowledge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs … and the Cherokees in particular were allowed by the treaty of Hopewell, which preceded the constitution, ‘to send a deputy of their choice, whenever they think fit, to congress’. Treaties were made … by which they ceded all their lands to … [New York]…, in which they admit their dependence. 33

This passage draws upon the larger homogenizing categorical logic of “Indian” for

justifying its decision about the Cherokee Nation as dependent and not a “fully”

sovereign nation. Here, the SCOTUS constructs its mask of white supremacy as

disappearance by enumerating its role as “protector” or guardian to “manage” Indian

affairs. Further, while the Cherokee were “allowed…to send a deputy of their choice” to

Congress, it is now common knowledge that the federal government hand-picked agents

that could be manipulated and controlled to carry out its own objectives.

The Cherokee Nation ruling established the fiduciary responsibility of the U.S. to

protect Tribal Nations, limiting their sovereignty while also acknowledging U.S.

responsibility for ensuring their welfare. This special fiduciary duty was pivotal for later

SCOTUS rulings recognizing and preserving the special status of persons qualifying as

“Indian.” 34 Marshall said,

[t]hey may more correctly perhaps be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases—

33 Id. at 17 (emphasis added). 34 Morton v. Mancari, 417 U.S. 535, 537 (1974) (holding the Bureau of Indian Affairs policy giving members of federally recognized tribes preference for hiring and promotion was not discrimination based on race but a public policy promoting the U.S. trust obligation). 93

meanwhile they are in a state of pupilage. Their relations to the United States resemble that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their great father.35

Justice Marshall artfully designs the rhetorical creation “domestic-dependent nations”

that constructs a veil diminishing the visibility of hundreds of years of dispossession,

relocation, and subordination of Tribal Nations in the U.S. Under this ruling, any inherent

sovereignty or aboriginal claims not ceded by treaty36 were impliedly retained by tribes.

The U.S. fiduciary responsibility was enumerated first in Cherokee Nation as the

reciprocal duty corresponding with deeming Tribal Nations to be domestic dependent

nations, which limited their sovereignty while formally bestowing the role of guardian

onto the U.S. government. In effect, this unilateral reduction in power minoritized tribes

that had been treated as foreign sovereign nations by way of treatymaking prior to the

Marshall Trilogy. However, the last case of the Trilogy made clear that states have no

sovereign power over Tribal Nations.

iii. Worcester v. Georgia: Federal Plenary Power and Extraconstitutional Tribal Nations

Worcester v. Georgia is yet another case brought by a non-Indian. 37 SCOTUS

held that the state did not have jurisdiction over non-Indians in Cherokee territory, but

35 Id. at 26-27 (emphasis added). It is also worth highlighting that the reference to “address[ing] the President as their great father” captures and embodies the framework reproduced in federal Indian law of a white supremacist genocidal patriarchy! 36 Later SCOTUS rulings further limit tribal sovereignty by acknowledging that Congress has plenary power over all tribes and may expressly abrogate any rights or agreements made by treaty. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). 37 Worcester, 31 U.S. at 515. Worcester was an Indian agent of the U.S. government and a citizen of Vermont. Tribal Nations did not yet have legal standing to bring cases in U.S. courts. Beyond the scope of this project is analysis of the lack of due process for Tribal Nations and its citizens in the Marshall Trilogy cases that persist as the foundation of federal Indian law. 94

instead, that the U.S. government possessed plenary and exclusive power over affairs in

the territory. 38 Samuel A. Worcester was one of several missionaries who was arrested

for violating a Georgia law requiring non-Indian residents to obtain a license from the

governor to reside in Cherokee territory. Despite being offered a pardon, Worcester

refused it in order to test the legal issue of whether the state law conflicted with federal

plenary power over tribes.39

The legal issue in this case hinges on whether the powers reserved to the states

under the Tenth Amendment of the Constitution or those limited powers enumerated as

held by the federal government were the controlling authority because Georgia law

prohibited Worcester’s presence on the reservation. However, the commerce clause

granted authority to the federal government over all interaction with Tribal Nations. 40 Put

another way, the legal issue was whether the state had subject matter jurisdiction

(“subject matter” being the crime enumerated in a Georgia statute) over a non-Indian

present in Cherokee territory that was also located within the geographical boundaries

designated as the state of Georgia. The record in this case indicates Georgia’s regular

practice of exercising regulatory and adjudicatory jurisdiction over Cherokee land. 41

The actions of Georgia in this case were not isolated, but rather, it regularly

infringed upon the sovereignty of the Cherokee Nation. However, the first Trade &

38 Id. 39 Worcester was an appointed agent of the U.S. government who “was seized while performing, under the sanction of the chief magistrate of the union, those duties which the humane policy adopted by congress had recommended.” That is, Worcester was an appointed “Indian Agent,” who oversaw the Christian education of the Cherokee citizens in an attempt to “civilize” them. Id. at 562. 40 “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Reference here to “Indian tribes” is commonly referred to as the “Indian Commerce Clause.” Article 1, Section 8, Clause 3 of the U.S. Constitution. 41 “It has been said at the bar, that the acts of the legislature of Georgia seize on the whole Cherokee country, parcel it out among the neighbouring counties of the state, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence.” Id. at 542. 95

Intercourse Act of 1790 (Intercourse Act) 42 clearly limited trade with tribes to transactions directly with or approved by the federal government. However, this restriction on sovereignty was intended to be narrowly construed to the commercial aspects of tribal sovereignty and not broadly restricting self-government. 43 Congress passed the Intercourse Act precisely because white settlers were entering tribes’ reservations and causing its members physical harm and attempting to displace them to appropriate their lands. Enforcing the boundaries of reservations became increasingly difficult, and eventually gave rise to federal criminal laws on reservations to enforce health, safety and welfare on the reservations purportedly as part of the U.S. fiduciary responsibility.44 Georgia’s actions, here, embodied the pervasive “land grabbing” attitude at the time throughout the U.S. by non-Indians and state parties. 45

In Worcester, it becomes clear that the state of Georgia itself supported similar infringement on the Cherokee Nation’s sovereignty as a nation. By holding that Georgia did not have jurisdiction over non-Indians in Cherokee territory, it established that the federal government possessed exclusive and plenary power over affairs in the territory. 46

This holding solidifies the status of tribes as domestic dependent nations, defining nation as “a people distinct from others." 47 While recognizing tribes as culturally distinct, implying cultural sovereignty, the U.S. simultaneously reaffirmed tribes as “wards.”

SCOTUS supports this legal principle by drawing upon international customary law when it explained that “the settled doctrine of the law of nations is, that a weaker power

42 Also referred to as “Indian Traders Statutes.” 1 Stat. 137 (1790). 43 Lone Wolf, 187 U.S. at 583. 44 Congress passed the Major Crimes Act in 1885. 18 United States Code § 1153 (1885). This legislation is discussed further in the policy eras section that follows. 45 Supra note 12, at 103. 46 Worcester, 31 U.S. at 515. 47 Id. at 558. 96

does not surrender its independence—its right to self government, by associating with a

stronger, and taking its protection.”48 Through its initial designation of Tribal Nations as

wards in Cherokee Nation v. Georgia, SCOTUS had diminished tribes’ political

sovereignty as otherwise foreign nations within the U.S. This opinion reaffirms the

federal fiduciary obligation while clarifying the exclusive authority of the U.S.

government over Tribal Nations.

This case stood for three legal principles: (1) tribes are under the protection of the

federal government, which includes protecting tribes’ rights to exclude persons from their

reservation, (2) Trade & Intercourse Act, Article I, Section 8 explicitly authorized this

authority that is still valid today, and (3) the Commerce Clause of the Constitution grants

the federal government exclusive authority over tribes. 49 With the reaffirmation of tribes

as domestic dependent nations, this case firmly established the U.S. government’s role as

“protector.” Like Cherokee Nation before it, Worcester diminished inherent sovereignty

of Tribal Nations as the “seed” of disappearance of sovereign Tribal Nations that could

make future first-in-time, first-in-right property claims to this territory. Further, the

assimilation of tribes through the process of Christian conversion is implied by the

authorized presence of the missionary agent; tribes as unique cultural sovereigns were

expected to disappear via Christian conversion. 50

48 Id. at 561. 49 The first Trade and Intercourse Act was enacted in 1790 to balance out the fiduciary duty of the U.S. government with the official public policy of westward expansion, increasingly dispossessing Native peoples of their lands; white settlers persistently entered Indian Country and harmed Tribal Nation citizens; the Trade and Intercourse Acts delegated power to the federal government to prosecute crimes therein. 1 Stat. 137 (1790); this temporary act was reenacted and slightly expanded in 1793, 1 Stat. 329, and 1796, 1 Stat. 469, and another temporary act followed in 1799, 1 Stat. 743. United States Constitution, Article I, Section 8, Clause 3, has become known as the “Indian Commerce Clause.” 50 In naming its intention falsely, the U.S. government explicitly states that cultural assimilation is intended as an act of ensuring the survival of Indians. “This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and 97

The SCOTUS reaffirmed the U.S. government’s power over tribal nations through the holdings of the Marshall Trilogy of cases in terms of its “shoring up” its fee simple property rights over aboriginal lands, creating its fiduciary “guardian” role, and affirming its plenary power over tribes’ sovereignty. The five overlapping eras of federal Indian policy provide useful frameworks for interpreting legal principles, effecting varying degrees of disappearance of cultural identity, sovereignty, and Tribal Nation citizens.

B. Federal Indian Law Policy Eras

The following five primary policy eras in federal Indian law developed from the legal principles of the discovery doctrine, domestic-dependent nations, and federal plenary power: (1) treaty making, (2) allotment, (3) reorganization, (4) termination, and

(5) self-determination. 51 While the periods of removal and reservation may be included in the treaty making or allotment eras, both periods arguably constitute distinct policy eras and were characterized by the forced relocation of Tribal Nation citizens with either a small portion of their homelands or another geographic location reserved for them. These eras overlap with allotment and are combined for the sake of brevity here despite arguably possessing distinctive historical features. Each era of federal policy is characterized by varying degrees of racism, dispossession, and recognition of sovereignty.

converting them from hunters into agriculturists.” Id. at 557. This false alignment between the government’s stated intention and actual intention nicely captures the discourse of whiteness as disappearance; it is only through disappearance as assimilation that Indians could be “preserved.” Arguably, this logic is genocidal. 51 See David E. Wilkins and Heidi Kiiwetinepinesiik Stark, American Indian Politics and the American Political System 150-51 (4th Ed., Rowman & Littlefield 2018) (2001). See Table 2, Policy Eras of Federal Indian Law. 98

52 Table 2. Policy Eras of Federal Indian Law231F

Era Treaty Making Allotment, Removal, Reorganization Termination Self- & Reservation Determination

Theme Treated as “Kill the Indian; save Reaffirmation as Dissolution of Affirmation of “foreign the man” sovereign Tribal tribes deemed political & nations.” Nations assimilated cultural sovereignty Period* 1778 – 1850s 1781 – 1934 1934 – 1950 1953-1960 1968 - Present

Features -U.S. signed -1830’s: removal and -Tribal -Tribes -New federal international relocation constitutions considered recognition treaties -Reservations -Indian assimilated processes -Indian Affairs segregated Reorganization -Some tribes -1978 BIA in Dept. of War -Boarding schools for Act of 1934 and reservations publishes criteria assimilation -Allotted parcel eliminated for federal -1887 General size restricted recognition Allotment Act economic -Reservations divided development into fee simple *Dates are approximate, and eras overlap.

Federal Indian policy since the country’s founding has been characterized by varying levels of tension between recognition of Tribal Nations’ sovereignty and aboriginal property rights, dissolution of tribes, and dispossession of land. The fact that the management of Indian affairs was designated as an agency of the department of war until 1849 speaks volumes about the hostile relationship between the U.S. government and tribes as well as the initial recognition of tribes as foreign nations. 53 From the point of occupation of the Americas and claims staked by Britain under the Discovery

Doctrine, the Native peoples of the U.S. were homogenized as “uncivilized” and

“savage” “Indians” with whom the threat of war had to be managed as part of U.S.

52 This table oversimplifies the eras of federal Indian law and policy in order to provide the reader a snapshot of the legal history giving rise to the dispossession of sovereignty in the Oliphant case. In doing so, the “Removal, Reservation, & Allotment” eras are combined, but are often treated by scholars as separate eras. Also, there is overlap between the beginning and end of most of the eras as well as debate about when certain eras begin and end. See Angelique Townsend Eaglewoman & Stacy L. Leeds, Mastering American Indian Law 8 (Carolina Academic Press 2012). 53 Bureau of Indian Affairs (BIA), History of BIA (Aug. 1, 2020), https://www.bia.gov/bia. 99

foreign relations. In this sense, tribes were respected as powerful military adversaries;

this consideration was balanced with the pervasive white greed to acquire Indian land and

resources.

i. Treaty Making Era

From occupation of the Americas until approximately 1871, Native peoples were

treated as foreign nations insofar as the U.S. government continued to sign treaties with

them.54 The end of treaty making was foreshadowed by Cherokee Nation asserting that

tribes were not foreign nations in 1831, but merely domestic-dependent nations. During

the treaty making era, tribes with whom the U.S. signed treaties were done so precisely

because they were viewed as significant military adversaries; signing international

treaties also legitimized the U.S. as a newly formed sovereign nation. 55 Tribes that were

not considered military threats were largely ignored.

Article 6 of the U.S. Constitution enumerates that “[a]ll treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” The majority of treaties made with

Native peoples were made in order to cede aboriginal lands to the U.S. while reserving all rights of the tribe not specifically ceded in the treaty. That is, if hunting rights were not specifically enumerated as ceded, then the tribe impliedly retained those rights. Based on

Article 6, these treaties remain valid in perpetuity and supersede any local or state laws.

54 See Eaglewoman & Leeds supra, note 53, at 9. Legislation prohibiting Congress from approving any future treaties was passed as a rider to an appropriations bill in 1871. 55 Mary Kathryn Nagle emphasizes the significance of early treaty making. YouTube interview with Mary Kathryn Nagle, Nov. 3, 2016, Section 3: Under Seize, Summit DC (Oct. 3, 2020 3:27 PM), https://www.youtube.com/watch?v=yG0qqcwffJM. 100

Thereby, unless Congress expressly abrogates the terms of a treaty, they remain valid in

terms of the rights expressed. In 1871, Congress passed a law prohibiting any addition

treaty making with Indian tribes. By 1887, the General Allotment Act began dividing

reservation lands into individual parcels to break up Native communities to promote

assimilation. However, removal and reservation policies also shaped these eras.

ii. Allotment, Removal, and Reservation Era

While treaty making did not officially end until 1871, the distinctive policies of

removal, relocation to reservations, and allotment concurrently constructed distinctive

policies of disappearance for Tribal Nations. During the “removal” period, the 1830

Tribal Removal Act expressly intended to push Indians to territories west of the

Mississippi. Forced relocation resulted in the mass genocide of Tribal Nation

communities where many persons died of starvation and diseases during the relocation

process; those that survived were forced to live in vastly different environments than their

homelands, necessitating a complete shift in traditional subsistence practices.56 Further,

Native peoples were relegated to reservations and charged with crimes if they left its

territorial boundaries. During this era, the U.S. became known for negotiating with

unauthorized members of tribes to gain larger land sessions.57 Because treaty rights are

agreements between two sovereigns, they are not protected by the Constitution, requiring

that agreements with Tribal Nations be treated as extraconstitutional. 58

56 Eaglewoman & Leeds, supra note 53, at 11. 57 Getches, supra note 12, at 205-12 (describing the Lone Wolf v. Hitchcock negotiations). 58 The duplicitous equivocations of McIntosh were clear where Tribal Nations were treated as foreign nations for the purposes of treaty making during removal, while SCOTUS held they were not foreign nations at all. That is, if Tribal Nations were domestic dependent nations, then the constitution should have ensure due process for all Native peoples in their agreements and dispossession of aboriginal lands. Only genocidal logics make sense of these logical inconsistencies. See McIntosh, 21 U.S. at 543. 101

During the “reservation” period, the Bureau of Indian Affairs (BIA) was

transferred from the Department of War to the Department of Interior in 1849; this era

redefined Tribal Nations’ property boundaries and relationships with the federal

government. 59 While shifting Indian Affairs out of the Department of War might be a seemingly lead to less hostile relationships with Tribal Nations, this period characterized further mass dispossession of aboriginal homelands. The boundaries of the lands reserved to Tribal Nations were more precisely established. Most Tribal Nations with treaties were

relocated to lands outside the geographical area of their original homelands, and BIA

began managing and providing rations, farming equipment, and other resources to

forcibly assimilate Tribal Nations to agrarian and Christian norms of white society. This

era was an organizational period for the allotment strategies that followed.

The Homestead Act of 1862 was promoted by northern white republicans who

wanted to acquire more farmland and offset production by slave-owning plantation

farmers. The act contained a provision granting Indians who abandoned tribal relations

160 acres held in trust for six years by the government. This legislation was a precursor

to the more holistic allotment policies. In 1872, the Commissioner of Indian Affairs,

Francis A. Walker issued a report reaffirming forced assimilation not only as part of the

government’s fiduciary duty but as a self-protective measure:

In a word, in the two hundred and seventy five thousand Indians west of the Mississippi, the United States have all the elements of a large gypsy population, which will inevitably become a sore, a well-nigh intolerable, affliction to all that region, unless the Government shall provide for their instruction in the arts of life, which can only be done effectually under a pressure not to be resisted or evaded. The right of the government to do this cannot be seriously questioned. Expressly excluded by the Constitution from citizenship, the Government is only bound in its treatment of them by considerations of present policy and justice. Even were the

59 Eaglewoman & Leeds, supra note 53, at 12.

102

constitutional incapacity of these people not what it is…the manifest necessity of self-protection would amply justify the Government in any and all measures required to prevent the miserable conclusion I have indicated. 60

This report draws on white fear of Native peoples’ distinct cultural practices and ways of

living to promote allotment. The express justification of forcing Native peoples to

assimilate by whatever means necessary seethes with white supremacy; if Native peoples

did not assimilate to mainstream white norms, whites feared they would be a threat to

westward expansion, a right believed to be divinely ordained as “Manifest Destiny.”61

Also clear is the constitutional “loophole” implied here to permit civil rights violations in

this “instruction in the arts of life” because Native peoples were not yet citizens of the

U.S. The Commissioner inaccurately interprets the Constitution to not apply to non-

citizen persons, which is not surprising during a period when slavery was bolstered by

slavery and plantation capitalism.62

While the horrors and atrocities of boarding schools as well as the legacy of these cultural traumas is well documented, this brief overview cannot begin to give an adequate account of the genocidal horrors perpetrated against millions of Native peoples. 63

Starting in 1883, the Courts of Indian Offenses began regulating behavior of Native

peoples on reservations, criminalizing the practice of Native religions, languages, or

60 Supra note 52, at 64. 61 John O’Sullivan, Annexation, The Democratic Review (July 1845). 62 The fundamental rights enumerated in the Bill of Rights does indeed apply to all persons, including noncitizens, physically present in the U.S. Enslaved African Americans were counted as three-fifths of a person for determining the census basis for representatives in Congress. Article I, Section II, Clause 3 of the United States embodies the idea of plantation capitalism, that is, white supremacist subordination of African Americans not as persons but as objects upon which to capitalize and to bolster both economic and political power. In the Constitution, the two sources of power are enmeshed as systemic white supremacy. Because enslaved African Americans were not free persons, they were not fully counted; Indians who were not subject to taxation were also not counted. This symbolically connects the productive, and thereby, “white” Indian with being taxed. 63 See Getches generally, supra note 12. 103

cultural traditions. 64 Thousands of Native children were stolen from their parents for

educational training at militaristic board schools beginning in the late 1800’s; doing so

was a fundamental tactic of policies of disappearance to “kill the Indian, save the man.” 65

Children were strictly prohibited from speaking their native language or observing their

traditional spiritual ceremonies and practices; children were too often physically,

sexually, emotionally and mentally abused, leaving future generations of families to

navigate the residual impacts of these historical traumas. The allotment of Indian

homelands was the continuation of the federal policy to assimilate Native peoples into the

norms of white culture, effecting the disappearance of Native peoples and their

cultures. 66 Individual property ownership by Native persons intended to break up

communities and collective cultural consciousness.

The General Allotment Act of 1887 subdivided land previously reserved for

Native peoples into 160-acre parcels for families, 80-acre parcels for individuals, and 40- acre parcels for children under 18. Land that was not allotted within a specific timeframe was considered “surplus,” assuming tribes did not “need” remaining lands and implied land otherwise held in trust for tribal communities would not be productively used. This practice embodied Locke’s values embedded in the law of accession affirmed in Johnson v. McIntosh, which justified dispossession by claiming the land would no longer remain an unproductive “wilderness.”67 Surplus lands were returned to public domain for white

settlement. It is through the theoretical lens of whiteness as disappearance that the

duplicity and equivocation of meaning by the U.S. government becomes clearer:

64 Eaglewoman & Leeds supra, note 53, at 13. 65 Eaglewoman & Leeds supra, note 53, at 13. 66 Supra note 7, at 85-90 67 Johnson v. McIntosh, 21 U.S. at 588. 104

dispossession of lands would effect disappearance of Native peoples.

Allotment policy resulted in sizes of the resulting allotted parcels being too small

for the creation of viable economic subsistence for Tribal Nation communities and were

often leased to third parties for oil, gas, timber, grazing, and mining rights. By the time of

allotment, 90% of lands possessed by Native people upon occupation of the Americas

had been dispossessed. Allotment created a “checkerboard” of Indian-owned land interspersed with non-Indian owned land; while land individually owned by Indians would eventually be considered “Indian Country,” it was subject to taxation, liens, and could be freely sold and bought. When laws changed to preclude prosecution by tribes of non-Indians committing crimes in Indian Country, 68 this ownership checkerboard created a jurisdictional nightmare for law enforcement.

Allotment effectively took what land remained and allotted it to non-Indians. This

U.S. policy was part of “settling” all the land comprising today’s “lower-48” territory to reaffirm U.S. possessory interest through agriculturally productive use by non-Indian citizens. The further physical, cultural, and spiritual decimation of Tribal Nations by the removal, reservation, and allotment policies depleted communities’ traditional means of thriving. The lands remaining were insufficient to provide sustainable levels of economic resources needed for Tribal citizens to thrive; allotment intended to disappear Tribal

Nations through dispossession of land and resources. The 1928 Merriam Report detailing the deplorable poverty and living conditions for Native peoples led to the Indian

Reorganization Act of 1934, which ended allotment.69

68 Oliphant, 435 U.S. at 212. 69 Supra note 52, at 156-57. 105

iii. Reorganization Era

The Indian Reorganization Act of 1934 (IRA) officially ended the policy of

allotting lands reserved for Tribal Nations. However, the underlying purpose

characterizing prior federal policy eras was also true for reorganization: assimilation qua

disappearance. Rather than criminalizing cultural practices, this approach intended to

utilize Tribal Nations’ governance structures to gradually assimilate their cultural

practices and ways of life into mainstream U.S. culture. The most effective way that IRA

legislation achieved its goal was by providing template constitutions centralizing power

within these governance structures. 70

IRA constitutions were, arguably, imposed upon Tribal Nations by federal

policies, which resulted in a lack of cultural match between traditional practices and

beliefs of these nations and the externally imposed governance structures. 71 Making

matters worse was the standard verbiage in these templates often established a two-year

tenure for elected offices, resulting in little continuity of constitutionally-based Tribal

Nation governance. While a handful of tribes including the Navajo Nation, Sisseton-

Wahpeton Oyate, and Confederated Tribes of the Colville Reservation did not adopt the

IRA constitutional model, most tribes did so in order to gain political power and status in

relation to the federal government.

Ultimately, tribes retain sovereignty to set the criteria for citizenship. 72 Through

70 Matthew Fletcher now suggests that it was a myth that tribes were handed complete constitutions and asked to adopt them, but instead were given outlines as guides. See Matthew Fletcher, The Myth of the Model IRA Constitution?, TURTLE TALK (Nov. 21, 2007), https://turtletalk.blog/2007/11/21/the-myth-of- the-model-ira-constitution/. 71 Supra note 52, at 157. 72 Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (holding that the Indian Civil Rights Act 25 U.S.C. § 1302 does not create a federal cause of action for declaratory and injunctive relief where tribal citizenship criteria was gender biased). 106

the encouragement to adopt new IRA constitutions modeled on the U.S., most tribes

defined citizenship in part by adopting some level of blood quantum in order to adapt to

the federal definition of “Indian” as follows:

The term “Indian” as used in this Act shall include all persons of Indian descent

who are

members of any recognized Indian tribe now under Federal jurisdiction, and all persons who are descendants of such members who were, on June 1, 1934, residing within the present boundaries of any Indian reservation, and shall further include all other persons of one-half or more Indian blood.73

Whereas SCOTUS has upheld Indian preference based on political status in Mancari,

blood quantum criteria continues to be a platform for conservative think tanks such as the

Goldwater Institute to attack Tribal Nation sovereignty.74 In this respect, blood quantum

based interpretations of the identity of “Indian” continues to place tribal sovereignty in a

precarious position by SCOTUS.75 Furthermore, Native-Hawaiian preference for voting

rights based on ancestry was struck down as unconstitutional based on the prohibitions of

racial classifications in the 15th Amendment; however, Native Hawaiians are not

federally recognized and lack status under the protections of Mancari. 76 That is, if Tribal

Nations are proven to be constituted on a racialized basis, then their continued political

status could be called into question.

Due to the widespread lack of “cultural match” between IRA constitutions and the

73 Indian Reorganization Act, 25 U.S.C. § 5129 (West). 74 Morton, 417 U.S. at 537. See also Addie C. Rolnick, The Promise of Mancari: Indian Political Rights as Racial Remedy, 86 N.Y.U. L. Rev. 958 (2011) (discussing how Mancari obfuscates the racialization and politicization of Indian tribes); David C. Williams, The Borders of the Equal Protection Clause: Indians as Peoples, 38 UCLA L. Rev. 759 (1991) (discussing Morton’s “political” approach for characterizing Indians for purposes of constitutional review under the Equal Protection clause). 75 See infra note 113. 76 Rice v. Cayetano, 528 U.S. 495 (2000) (holding the requirement of Native Hawaiian ancestry for voting of Office of Hawaiian Affairs [OHA] violated fifteenth amendment prohibition of voting rights based on ancestry). Mancari, 417 U.S. at 537. 107

existing tribal governance, the newly imposed tribal constitutions often resulted in

internal conflicts for tribes. 77 While the shift of restoring tribal governance was a positive

acknowledgment of tribes’ sovereignty, the constitutional templates utilized discursively

limited how tribes formalized their governance in relation to the federal government. For

example, nearly all IRA constitutions mention that changes to the constitution are

“subject to approval by the secretary of the interior.”78 This assertion willingly limits

tribes’ sovereignty to amend their own constitutions unnecessarily. Tribes that were not

federally recognized at the time of IRA were not included in the jurisdiction of the

legislation; that is, benefits of recognition such as placing land into trust status were

given only to tribes already recognized by the U.S., usually tribes with whom the U.S.

had signed treaties. That is, the U.S. had effectively already disappeared many other

Tribal Nations prior to 1934. In this respect, IRA marked the beginning of the technical

designation of “federally recognized tribe” as a unique political status, while the

exclusion of many tribes from federal recognition was well-established public policy by

1934.

IRA also empowered the Secretary of Interior to establish, expand, and restore reservations whether established by Congressional legislation, treaty, or Executive Order.

However, the majority of Native peoples by this time were not occupying their homelands because of previous forced removal and relocation. Despite this legislation allowing expansion of Indian Country via IRA, legislation terminating recognition of

Tribal Nations quickly ensued, further effecting the disappearance of Tribal Nations and

77 Supra note 52, at 157 78 It is clear that some tribes were strongly persuaded to adopt IRA constitutions. E.g., it is clear the BIA coerced the Hopi Tribe to adopt a constitution that was not in alignment with their traditional self- governance. See supra note 12, at 225. 108

their cultural and political sovereignty.

iv. Termination Era: Wholesale Disappearance of Tribal Nations

While short-lived, the termination era irreparably damaged relations between the

federal government and Tribal Nations. During the period from 1945 until 1961, 79 the

federal government intended to remove all Indian tribes from federal administrative

oversight. That is, eliminate the U.S. fiduciary obligation to tribes. Fortuitously, it was an

utter policy failure.

The policy arose on the heels of World War II where cost-cutting measures were a high priority in national politics.80 By this time, political conservatives viewed the IRA

policies as being ineffective towards alleged “Indian progress” of becoming fully

assimilated citizens. The genocidal political logic was clear: IRA assimilation policies

had failed, so termination of Tribal Nations would limit U.S. financial liability. The

Indian Claims Commission Act of 1946 had been passed to allow Indians to sue the

United States for compensation for the first time, potentially exposing the government to

billions of dollars in property claims. 81 The government made clear it would take

whatever measures necessary to limit its liability in Tee-Hit-Ton Indians v. United

States.82

79 It is not accidental that this era corresponded with the Cold War fear of communism and socialism; at the Congressional hearing, a few witnesses testifying from tribes affirmed that tribal or community ownership was “socialistic or communistic.” Also conspicuously absent from these hearings were any published research or testimony from anthropologists, social workers, or other social scientists about the potential benefits of termination. Supra note 12, at 233. 80 Supra note 52, at 157-58. 81 Indian Claims Commission Act of 1946, 25 U.S.C.A. §§ 70a et. seq. See also Getches, supra note 12, at 306-07. 82 348 U.S. 272 (1955) (holding that the tribe’s right to the land is merely one of occupancy or right to use and revocable at any time; there has never been any additional legal recognition of additional rights by Congress). For federally recognized tribes, reparations for land unlawfully taken were limited by several SCOTUS rulings in the first half of the 20th century. While Lone Wolf v. Hitchcock established that Congress could abrogate agreements made under treaties, just compensation still had to be made to 109

SCOTUS decided Tee-Hit-Ton shortly after the Indian Claims Commission Act and shored up what potential U.S. liability remained for the dispossession of Native peoples’ aboriginal lands. It held that Tribal Nations’ occupancy of aboriginal homelands were permissive rights revocable anytime by the federal government unless Congress had expressly acknowledged the property rights. In one of the most economically relevant footnotes in federal Indian law decisions, Justice Reed cited the Tillamook case that

explained “if aboriginal Indian title was compensable without specific legislation to that

effect, there were claims with estimated interest already pending under the Indian

jurisdictional act aggregating $9,000,000,000.00. 83 In effect, SCOTUS was unwilling to

expose the U.S. Treasury to this liability if aboriginal property claims were acknowledged,

despite the magnitude of the immoral basis for this decision. This justification makes sense

only through the theoretical framework of whiteness as disappearance shaping federal

Indian law and policy.

The U.S. government officially began withdrawing recognition of tribes after

unanimous passage of public policy to do so in 1953. This dispossession of Indian political

status occurred with passage of House Concurrent Resolution No. 108, 83rd Congress

(August 1, 1953) (Resolution), explicitly intending to

end […] [Indian] status as wards of the United States…[w]hereas the Indians within the territorial limits of the United States should assume their full responsibilities as American citizens: …it is declared to be the sense of Congress that, at the earliest

federally recognized tribes when land was taken. 187 U.S. 553 (1903) (holding that Congressional plenary power permitted the abrogation of treaty rights). Alaskan tribes (there are no reservation lands held in trust) first had access to legal system via the Court of Claims (established by the Indian Claims Commission). However, the ruling in Tee-Hit-Ton Indians v. United States referenced in a footnote the potential U.S. liability if the right of occupancy granted under the Johnson v. McIntosh holding were applied; in effect, this holding was an effective move to “cook the books,” as ruling otherwise would mean acknowledging $9B in similar claims already filed at the time. 348 U.S. 272 (1955) (holding that takings of timber where Alaskan Natives held aboriginal rights to occupancy were not violations of the fifth amendment); see Donald Craig Mitchell, Sold America, The Story of Alaska Native and Their Land, 1867-1959, 403 (2003). 83 Tee-Hit-Ton, 348 U.S. at FN 17. See supra note 12, 303. 110

possible time, all of the Indian Tribes and individual members thereof located within the States of California, Florida, New York…should be freed from Federal supervision and control and from all disabilities and limitations specifically applicable to Indians. 84

The language of the resolution selectively articulates the alleged emancipation of Indians

from a ward status in order that they may “assume full responsibilities of American

Citizens.” The legislative intent to make Indians equal in the eyes of the law and “freed

from Federal supervision and control” covertly equivocates on the meaning of control

because this policy epitomizes the ultimate U.S. control by virtue of no longer recognizing

Tribal Nations as distinct political sovereigns while denying their status as foreign nations.

This policy falsely names practices shaped by whiteness as disappearance, disappearing

Tribal Nations by terminating their relationship and recognition with the federal

government.

The 1953 Resolution was a federal policy statement without the force of law, so

Congress passed specific acts when it terminated individual tribes. Tribal Nations selected

were considered “sufficiently acculturated,” nullifying the need for tribal governance.

During this period, “over one hundred tribes, bands, and California rancherias—totaling a

little more than eleven thousand Indians were ‘terminated’ and lost their status as

‘recognized’ and sovereign Indian communities.85 These acts required a detailed plan by

the Secretary of the Interior outlining how the tribe would be dismantled and how Indian

land would be distributed and managed. 86 Smaller tribes with smaller land holdings were

84 Supra note 52, at 31. 85 Supra note 52, at 31. 86 Alaska became a state during this era; however, later SCOTUS decisions and federal legislation asserted there was no Indian Country in Alaska. Alaska was also added as a PL 280 state; see infra note 88. Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998) (holding that land defined by Alaska Native Claims Settlement Act of 1971 did not constitute Indian Country” because it was not land set aside by federal government for tribal use and not under federal supervision). See also Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C.S. § 1601 et seq. After enactment of the Alaska Native Claims 111

dissolved usually within a year; larger tribes with more land took as long as seven years.87

Pervasively, jurisdiction over Indians was effectively transferred to the states where Tribal

Nation citizens were located after termination; however, in states where Tribal Nation governments remained intact, Public Law 280 (PL 280) gave states the option of extending their jurisdiction in Indian Country. 88 PL 280 took the “unprecedented step of passing general legislation extending state civil and criminal jurisdiction into Indian country.”89

Because sovereign interests of states were permitted to outweigh tribal sovereign interests,

PL 280 has operated as a de facto diminishment of tribal sovereignty for states opting into this legislation.

Despite termination and enactment of PL 280, treaty obligations were not impliedly abrogated by the Resolution. In Menominee Tribe of Indians v. U.S., the court held the Termination Act of 1954 could not have intended to abrogate treaty rights where the intent of the act was to “settle the Government’s financial obligations toward the

Settlement Act and Venetie decision, only one Tribal Nation in Alaska held land in reserve, the Metlakatla Indian Community. The Only Indian Reserve in the State of Alaska: Welcome to Metlakatla, Alaska, Metlakatla Indian Community (Oct. 3, 2020 4:29 PM), http://www.metlakatla.com/. Venetie and ANCSA significantly diminished the political sovereignty of Alaska Native Tribal Nations to exercise authority over persons entering their territory, resulting in no jurisdiction to prosecute crimes committed in their territory. That is, state authorities must enforce the health, safety, and welfare of Alaska Native peoples. 87 Supra note 12, at 236. 88 In effect, PL 280 gave jurisdiction in Indian Country to five states: California, Minnesota, Nebraska, Oregon, and Wisconsin; Alaska was added upon statehood in 1959, which is why tribal courts were never established there. This expanded jurisdiction traded roles of the federal jurisdiction outlined in Major Crimes Act and Indian Country Crimes Act with the state governments. PL 280 also gave other states the option of enacting this same jurisdiction. Since enactment, it has been widely misunderstood and misapplied by state and federal governments, effectively diminishing tribal political sovereignty. In states where PL 280 applies, states have full criminal jurisdiction and some civil jurisdiction over reservations; while in one respect the trading of state jurisdiction in lieu of federal jurisdiction was a “wash” in terms of jurisdictional and political power, states have no fiduciary duty to protect tribes. Therefore, PL 280 effectively diminished the federal relationship with tribes. 89 Supra note 12, at 234. 112

Indians.”90 Menominee reaffirmed that regardless of tribal recognition by the federal

government, treaty rights persist unless Congress has expressly abrogated those rights. 91

Termination was the pinnacle of assimilationist policies. It intended to break up

these nations and dissipate their cultural sovereignty, a source of power not recognized

legally but obviously understood as a threat to federal control. If recognition of Tribal

Nations were eliminated, then Native peoples were no longer a “fiduciary responsibility.”

Termination destroyed prior recognition of cultural and political sovereignty for the more

than one hundred Tribal Nations impacted, but it was short lived. 92 While no additional

Congressional acts terminating specific tribes were enacted after the mid-1960’s, the

Resolution was not officially reversed until 1988. 93

v. Self-Determination Era

Ironically, termination policy had the opposite effect intended by raising

awareness about Tribal Nations’ self-governance and the importance of cultural and

political sovereignty. As Tribal Nations more frequently exercised sovereignty as self-

governance, the self-determination era began to unfold in the 1960’s. Urban social

movements influenced Native peoples previously relocated through the urban relocation

program, giving rise to the American Indian Movement (AIM). During the 1960’s and

1970’s, media became more prominent in shaping events by reporting the protests and

riots in real time as they occurred. The power of the television to reach large populations

90 Menominee Tribe of Indians v. United States, 391 U.S. 404 (1968). 91 Id. See also Lone Wolf, 187 U.S. at 554. 92 Supra note 52, at 31. 93 The Menominee Tribe was the first restored in 1973. See H.R. Report 93-572, 93d Cong., 1st Sess. (1973). The SCOTUS held in Menominee Tribe of Indians v. United States that the revenue and resources lost from the elimination of hunting and fishing rights under PL 280 was compensable because the rights had persisted under the Treaty of Wolf River in 1854. Supra note 52, at 31. 113

of citizens was a powerful tool for mobilizing persons to act and raise awareness about systemic inequalities experienced by Native peoples.

AIM capitalized on this television coverage and built national awareness for the first time of the historical injustices endured by Native peoples in the U.S. Media coverage often exploited imagery of white militant males juxtaposed with stereotypical male Indian warriors; these simplistic appositive images were intentionally cultivated by activists as symbols of the white male supremacist system and functioned rhetorically as effective pathos appeals fostering great sympathy from white liberals. 94 This media awareness was highly effective for mobilizing political and financial support for the

AIM. This activist leadership resulted in significant political, cultural, and legal advancements made for Tribal Nations.

The work of Native activists began to reshape the current relationship between

Tribal Nations and the federal government. According to David Wilkins and Heidi

Kiiwetinepinesiik Stark,

[m]any of the victories arose out of activities and events like the fishing rights struggles of the Pacific Northwest during the 1950s-1970s; the American Indian Chicago Conference in 1961; the birth of the American Indian Movement in 1968; the Alcatraz occupation in 1969; the Trail of Broken Treaties in 1973; the 1973 occupation of Wounded Knee in South Dakota; and the untold marches, demonstrations, and boycotts.95

Amidst this politically revolutionary climate promoting socially revolutionary ways of thinking and resistance to hundreds of years of social and structural oppression of persons of color—especially for Native peoples and African Americans—the relationship between Tribal Nations and the federal government began to shift towards self-

94 Supra note 52, at 252. 95 Supra note 52, at 158. 114

determination. By the 1970’s, tribal nations had raised national consciousness about

historical oppression and the importance of sovereignty.96 Despite the Resolution that

created termination policy legally persisting well into the 1980s, new legislation

promoting self-determination passed Congress much earlier under President Nixon’s

leadership.

By 1970, President Nixon had “called upon Congress to repudiate the termination

policy and declared that Tribal self-determination would be the goal of his

administration.”97 Two key pieces of legislation enacted policies that put in place federal

laws recognizing tribal autonomy as to education and child welfare as well as

establishing funding for tribes to orchestrate this work: Indian Self-Determination and

Education Assistance Act 1975, 25 United States Code § 450, and the Indian Child

Welfare Act of 1978, 25 United States Code 1902 (ICWA). 98 This era also included the duplicitous Indian Civil Rights Act of 1968, 5 United States Code §§ 1301-1304, that while seemingly protecting the rights of Native peoples, dispossessed Tribal Nations of the sovereignty to protect its own citizens. The juxtaposition of these three pieces of legislation embodies the mixed messages characterizing the modern era of federal Indian law.

a. Indian Civil Rights Act

Major shifts in federal policy resulted from the mobilization of Native activists across the country, advocating for restored sovereignty and a broad range of rights.

96 Supra note 52, at 253. 97 Supra note 52, at 159. 98 Indian Child Welfare Act of 1978, Pub. L. No. 96–608, 92 Stat. 3096 (codified at 25 U.S.C. §§ 1901– 1963) (ICWA). Indian Self-Determination and Education Assistance Act 1975, Pub. L. No. 93–638, 88 Stat. 2203 (codified at 25 U.S.C. §§ 450). 115

However, some of the seemingly protective legislation actually harmed Tribal Nations.

Such federal legislation infringed further upon tribal sovereignty, including the Indian

Civil Rights Act of 1968 (ICRA). 99

While on its face, ICRA appeared to be legislation looking to ensure equal civil rights for all Indians living in Indian Country, it in fact diminished tribal sovereignty by requiring Tribal Nations to comply with a new set of laws expressly delegated by

Congress qua sovereign powers of the U.S. government. Meanwhile, many Tribal

Nations already enforced just practices that mirrored the rights in the Bill of Rights such as Pascua Yaqui Tribe’s “standing up for another.” Tribal protections ensuring a fair process were often as protective, if not more so, than due process requirements under the constitution.100 However, ICRA mandated that tribes uphold most of the same

constitutional rights required of states via the reverse incorporation of the Fifth

Amendment due process requirements by the Fourteenth Amendment. 101 Tribal Nations

existed as sovereigns prior to the occupation of the Americas and prior to the ratification

of the U.S. Constitution, making them “extraconstitutional” sovereigns existing in

relation to the U.S. government. Whereas the Fourteenth Amendment expressly applied

the civil rights enumerated in the bill of rights to state actors, Tribal Nation government

actors qua domestic dependent nations were not within the scope of this jurisdiction.

While not recognized by the U.S. as foreign nations, they are not states either. In Talton

99 Indian Civil Rights Act of 1968, Pub. L. No. 90–284, 82 Stat. 73 (codified at 25 U.S.C. §§ 1301–1304) (2020)). 100 For example, Pascua Yaqui cultural practices have included the right of having a person speak on a defendant’s behalf since time immemorial. See supra note 4, at 109. 101 See generally supra note 99. This legislation effectively provided all the rights enumerated in the bill of rights except for the establishment clause, the grand jury requirement, and quartering of troops. While ICRA requires indigent defense counsel be provided, the legislative scope does not include non-Indians in Indian Country. 116

v. Mayes, the court held that Tribal Nations existed as sovereign nations prior to the

drafting of the U.S. Constitution, and were thereby, not subject to its provisions except

where expressly stated. 102

In Talton, a Cherokee tribal member accused of murdering another member was

convicted by a grand jury out of compliance with the Fifth Amendment. 103 The Court held that “as the powers of local self-government enjoyed by the Cherokee nation existed prior to the Constitution, they are not operated upon by the Fifth Amendment.”104 After

the passage of the Indian Civil Rights Act in 1968, it limited tribal sovereignty by

establishing restrictions on federally recognized tribes’ adjudicatory processes and

required them to comply with most of the bill of rights as applied to states under the

Fourteenth Amendment. 105 While the federal government lacked jurisdiction over tribal

governments’ treatment of Indians in Indian Country prior to ICRA, most tribes’ statutes

provided civil rights protections similar to those enumerated in the bill of rights. In this

regard, ICRA was primarily a dispossession of Tribal Nation sovereignty to govern and

protect its citizens.

b. Indian Child Welfare Act

The vacillation of congressional policies between reaffirming and dispossessing sovereignty continued, and in 1970, the Indian Child Welfare Act legislation began to protect Tribal Nations from the dispossession of Indian children. 106 Nothing is more

fundamental to the sovereignty of any nation than its citizens; hundreds of years of

102 Talton v. Mayes, 163 U.S. 376 (1896). 103 Id. 104 Id. at 384. 105 Supra note 101. 106 ICWA, supra note 100. 117

genocide and assimilation policies resulted in the dwindling of Tribal Nation populations.

ICWA was the first legislation in the history of the U.S. to promote the persistence of

Tribal Nation citizens and the power to intervene in child welfare cases to ensure their

citizens remained with family members or culturally appropriate persons. Both legally

and symbolically, ICWA affirmed Tribal Nations’ sovereignty to protect and govern its

own citizens. Similarly, federal legislation passed under Title 25 of the United States

Code created federal programs to support tribes’ self-determination.

c. Title 25: Creation of Federal Indian Programs

Indian Self-Determination and Education Assistance Act (ISDEA) of 1975

included Public Law 93-638 (PL 638) and provided funding to support the economic

development and building of formal infrastructure for Tribal Nation governments. This

legislation included funding for establishing and expanding tribal courts. Appropriation

of federal dollars to support infrastructure development had a positive impact on tribal

self-governance.

One of the most significant additions under PL 638 funding was the allocation of

funding for tribal courts, which provided resources for rebuilding this infrastructure.

While power “delegated” by Congress to Tribal Nations has been one mode of

recognizing sovereignty, legal authority without the financial resources to carry out self-

governance is impotent. 107 PL 638 providing needed funding was a small step by the

federal government to truly reaffirm and restore Tribal Nation sovereignty and

107 It cannot be emphasized enough that Tribal Nations possess inherent sovereignty; while the U.S. government has refused to fully recognize the political sovereignty of Tribal Nations, it does not eliminate the truth that inherent sovereignty has persisted since time immemorial and prior to occupation of the Americas. 118

represented a significant initial shift in federal Indian policy towards supporting tribes’

capacity to exercise their own policy powers to pursue the health, safety, and welfare of

its citizens. While some federal policies arising from legislation facially supported the

persistence of Tribal Nations, the logics of disappearance reappeared in the holdings of

SCOTUS.108

C. Modern Series - Theme of Seven Cases: Diminishment of Sovereignty

The Marshall Trilogy established the relationship between the federal government

and Tribal Nations; this relationship was radically redefined in terms of tribes’ sovereignty

during the self-determination era by a series of seven SCOTUS cases often referred to as the “modern series” of cases. Collectively, these cases shaped the modern jurisdictional limits of tribal courts. The “modern series” of federal Indian law cases includes:

• Oliphant, 435 U.S. at 191;109

• United States v. Wheeler, 435 U.S. 313, 319 (1978) (holding that Navajo

Nation retained inherent sovereignty including the power to prosecute its own

citizens, thereby, double jeopardy did not apply to second federal

prosecution);

• Duro v. Reina, 495 U.S. 676 (1990) (holding that no tribal government

possessed criminal jurisdiction to prosecute non-member Indians for crimes

108 Abi Fain and Mary Kathryn Nagle succinctly explain how blood quantum reappeared in the dicta of Adoptive Couple v. Baby Girl. “At the turn of the twentieth century, Congress was the branch of the federal government that attempted to impose minimum blood quantum requirements to extinguish Tribal Nations and their citizens. Today, it is the Supreme Court.” Abi Fain & Mary Kathryn Nagle, Close to Zero: The Reliance on Minimum Blood Quantum Requirements to Eliminate Tribal Citizenship in the Allotment Acts and the Post-Adoptive Couple Challenges to the Constitutionality of ICWA, 43 Mitchell Hamline L. Rev. 801, 879 (2017). 109 See supra note 9. 119

committed in Indian Country, creating a jurisdictional gap where no sovereign

could prosecute) (abrogated by “Duro Fix” legislation restoring jurisdiction

over all Indians, 25 United States Code § 1301(2));

• U.S. v. Lara, 541 U.S. 193 (2004) (holding that Congress has constitutional

power to remove restrictions imposed on the exercise of a tribe’s inherent

legal authority through the “Duro Fix” legislation);

• Montana v. United States, 450 U.S. 544 (1981) (holding Tribal Nations can

control fishing and hunting only on Indian Lands);

• Strate v. A-1 Contractors, Inc., 520 U.S. 438 (1997) (holding that under the

Montana test, the tribal court lacked subject matter jurisdiction over non-

members where the occurrence happened on a non-Indian land easement

along a highway and rebuttable exceptions did not apply);

• Nevada v. Hicks, 533 U.S. 353 (2001) (holding that tribal courts may not

assert jurisdiction over state sovereigns, including a civil tort claim under 42

United States Code § 1983 for state officials entering tribal land to execute

warrants on members suspected of violating state law outside of the

reservation and denying member-Indian equal protection, due process, and

performing an unreasonable search and seizure).

Collectively, these cases resulted in the current jurisdictional parameters of Tribal

Nations qua political sovereignty. While an in-depth analysis of each of these cases is beyond the scope of this project, the Oliphant v. Suquamish case resulted in the most significant diminishment of Tribal Nation sovereignty in U.S. history by prohibiting the prosecution of non-Indians committing crimes in Indian Country. 120

Unlike state sovereigns where jurisdiction is territory-based, different tests are applied for Tribal Nations’ civil and criminal jurisdiction based on land status as well as individual identity. This complex “maze” of jurisdiction arose out of the modern Series of federal Indian law cases, which in part shifted jurisdiction to a basis in individual citizens’ identities. 110 This resulted after Oliphant dispossessed Tribal Nations of the

jurisdiction to prosecute non-Indians.

D. Rhetorical Dispossession in Oliphant111

Tribal Nations may prosecute all crimes perpetrated by Indians, citizens and non-

citizens, in Indian Country with the exception of the exercise of concurrent jurisdiction

by the federal government under federal laws such as the Major Crimes Act and Indian

Country Crimes Act. 112 Whereas Tribal Nations had previously retained the authority to prosecute all persons perpetrating crimes, including non-Indians in Indian Country since

time immemorial, the Oliphant decision diminished this exercise of sovereignty to

disallow the prosecution of non-Indians. 113 This decision shifted sovereignty from a

territorial basis to a member-identity basis through the categories of Indian and non-

Indian identities.

The Oliphant opinion discursively constructs individual non-Indian and

110 Maze Report, supra note 2. 111 This section was adapted from my article, Tribally Defined Citizenship Criteria: Countering Whiteness as Property Interpretations of “Indian” for Restoring Inherent Sovereignty, 18.1 Hastings Race and Poverty L.J. 29, 41 (2021). Available at: https://repository.uchastings.edu/hastings_race_poverty_law_journal/vol18/iss1/4. 112 General Crimes Act is also referred to as the Indian Country Crimes Act, 18 United States Code § 1152. The Major Crimes Act, 18 United States Code § 1153 (1885), delegates power to prosecute Indian defendants. 113 Oliphant, 435 U.S. at 191. 121

“Indian” 114 identity in a way that further dispossessed tribes of sovereignty. Several justices, including Rehnquist, made fallacious equivocations on the term “Indian” in

Oliphant, which became clear during oral arguments; this artful turn of words had a devastating impact on tribal sovereignty because of its focus on a liberalist view of

“Indian” focusing on individual persons instead of Tribal Nations. 115 When Oliphant decided that tribes could no longer prosecute non-Indians, it represented the single most significant limitation on tribal sovereignty by SCOTUS since the Marshall Trilogy116 by virtue of limiting tribes’ exercise of criminal jurisdiction.117 Arguably, this holding was an overreach of SCOTUS with regard to making new laws, which should be reserved for the legislative branch; also, plenary power over Indian affairs has generally been reserved for Congress. 118 Despite past deference to Congress over Indian affairs, SCOTUS explained in the Oliphant opinion that Congress never intended tribes to have jurisdiction over non-Indians given that the allotment era policies aimed to assimilate Indians. 119 Not only did SCOTUS interpret legislation not at issue in the opinion, it created new law with its holding.

114 Id. As stated previously, I use “Indian” throughout this chapter because of its technical meaning in federal Indian law. It is racist and connotes an inaccurate rationale inscribed by colonization and reproduced in federal Indian law. 115 435 U.S. at 191. Analysis of this oral argument was first analyzed for my final papers for Professor Tatum’s LAW 550A & LAW 699 courses during Fall 2018 at James E. Rogers College of Law. For a complete critique of the flawed rationale of Oliphant, see Peter C. Maxfield, Oliphant v. Suquamish Tribe: The Whole is Greater than the Sum of the Parts, 19 J. Contemp. L. 391, 436 (1993). 116 See Supra note 11; Johnson v. McIntosh, 21 U.S. 543 (1832), Cherokee Nation v. Georgia, 30 U.S. 1 (1831); and Worcester v. Georgia, 31 U.S. 515 (1832). 117 When considering criminal jurisdiction in Indian country, regulatory/legislative and adjudicatory/judicial jurisdiction collapse. Regulatory jurisdiction is the authority of a government to make laws and require persons in that territory follow them (how states operate in the U.S.). Adjudicatory jurisdiction is comprised of subject matter jurisdiction (states have general jurisdiction and can hear anything that is not a federal question) and personal jurisdiction (ability to require a party to appear in court). 118 See U.S. Const. art. III (establishing ceiling of judicial power of review of Executive and Legislative branches); see also Marbury v. Madison, 5 U.S. 137, 153 (1803) (solidifying the power of judicial review of the U.S. Supreme Court). 119 See General Allotment Act of 1887, 25 U.S.C. § 331. 122

The Oliphant case consolidated two lower-court 9th Circuit appeals cases. The first non-Indian defendant, Mark David Oliphant, was charged with assaulting a

Suquamish tribal officer during the tribe’s Chief Seattle Days; the second non-Indian defendant, Daniel B. Belgarde was charged with “‘recklessly endangering another person’ and injuring tribal property” after running into a police car following a high- speed chase. 120 Both defendants petitioned the Supreme Court to hear their cases after the

District court and 9th Circuit Court of Appeals affirmed the tribe’s jurisdiction over the

matters (Belgarde’s 9th Circuit appeal was pending when SCOTUS granted their appeal).

The main issue addressed by the court as a question of first impression was

whether tribal courts have criminal jurisdiction over non-Indians. 121 SCOTUS held that

tribal courts do not have jurisdiction over non-Indians based on the rationale that the

tribes’ power over non-Indians was abrogated when tribes became “domestic dependent

nations” under the authority of the U.S.122 The decision further asserted that unless the

authority to prosecute non-Indians was expressly delegated by Congress, it did not exist.

However, this entirely novel interpretation of long-standing legal precedence arising

originally from the Marshall Trilogy redefined inherent sovereignty for all tribes in the

modern era.

The SCOTUS primarily looked at two factors to justify its holding: (1) the

differences between the limitations imposed on tribal governments by the Indian Civil

Rights Act and on state governments by the US Constitution and (2) that tribes have

120 Oliphant, 98 U.S. at 194. 121 Id. at 195. 122 Cherokee Nation infra, note 100. The SCOTUS does not specify by what act sovereignty was abrogated except that upon submission to the sovereignty of the U.S., tribes gave up full sovereignty. “Such an exercise of jurisdiction over non-Indian citizens of the United States would belie the tribes’ forfeiture of full sovereignty in return for the protection of the United States.” Oliphant, 98 U.S. at 211. 123

different laws not known by non-member Indians. In reaching its decision in Oliphant,

the SCOTUS expressed concern about the ability of tribes to prosecute non-Indians

without the protection of the rights guaranteed to them by the US Constitution. Although

the SCOTUS was not as explicit in Oliphant as it would be in subsequent decisions, it

was clear that while the requirements of ICRA and the U.S. Constitution differ in several

ways, the SCOTUS was primarily concerned with the differences in the right to counsel

in criminal proceedings. As originally enacted, ICRA did not require that tribal

governments provide indigent defendants in criminal cases with an attorney, but instead

required only that tribal governments could not prohibit a defendant from hiring an

attorney at the defendant’s own expense. In contrast, the Sixth Amendment declares that

“[i]n all criminal prosecutions, the accused shall enjoy the right to . . . have the assistance

of counsel for his defense.”

While on its surface, this difference appears significant, the Court’s reliance on this factor is actually quite disingenuous, as it ignores (1) the actual functioning of the

Sixth Amendment’s Right to Counsel clause as it applies to the states; (2) tribal law and

tribal court practices; (3) the practical division of criminal prosecutions between federal

and tribal governments; and (4) the disparate impact of its ruling on Tribal Nation

citizens, “Indians.” While its language seems sweeping and comprehensive, the Sixth

Amendment does not actually require states to provide every defendant in every criminal

case with an attorney. Rather, as interpreted by the SCOTUS, it requires that indigent

defendants be provided with an attorney in all felony cases. If an indigent defendant is

charged with a misdemeanor, the state is not required to provide the defendant with an

attorney unless the state wants to preserve the possibility of having the defendant 124

sentenced to jail should the defendant be convicted. Under federal law, a felony is any crime punishable by more than one-year imprisonment; crimes carrying a lesser sentence are misdemeanors. At the time of the Oliphant decision, ICRA prohibited tribes from imposing a sentence of more than six months’ imprisonment. Thus, even if the Sixth

Amendment did apply to tribes, they would never be automatically required to provide indigent defendants in criminal cases with an attorney, unless the tribe wanted to preserve the possibility of imposing a jail term should the defendant be convicted. Since many tribes did not (and do not) impose jail terms, those tribes would never be required to provide indigent defendants with an attorney. Furthermore, the SCOTUS failed to inquire as to whether tribal law required provision of indigent defense counsel.

The failure to consider these differences between ICRA and the Sixth

Amendment, as well as the differences between tribes with respect to their laws, is further compounded by the practical impact of two federal statutes allocating criminal jurisdiction in Indian country. In addition to the penal code that creates federal crimes that apply throughout the U.S., Congress has also enacted two laws, the Indian Country

Crimes Act and the Major Crimes Act, 123 which give federal prosecutors extra powers to prosecute certain crimes that occur in Indian country. As a result of these statutes, and the limitations ICRA imposed on tribal court sentencing authority, tribes often defer to the federal government to prosecute serious crimes that occur in Indian country. Thus, tribes were often not prosecuting the serious felony level crimes that triggered the Sixth

Amendment’s concerns about the provision of indigent defense counsel in criminal cases.

Even when the tribe did choose to prosecute, however, ICRA limited the punishment that

123 Supra note 114. 125

could be imposed.

Finally, to reinforce the conclusion that the concern over tribal criminal

jurisdiction manifested by the SCOTUS is rooted in racial disparity and not in law, the

Court limited its concern to the constitutional rights of non-Indians. Since 1924, all

Indians born in the U.S. are U.S. citizens, and are thus entitled to the same constitutional

rights as non-Indians. Why, then, was the SCOTUS concerned only about the lack of a

right to indigent defense counsel when the defendant was non-Indian and not also when

the defendant was an Indian? While the concern over differences between the right to

counsel guaranteed by ICRA and by the Sixth Amendment were disingenuous, the fact

that the SCOTUS explicitly based the Oliphant ruling on its concern for protecting the

constitutional rights of non-Indians, clearly makes Oliphant a continuation of the

whiteness as disappearance theme that began with the Marshall Trilogy.

Similarly, the second factor offered as rationale for the Oliphant holding is not

consistent with the existing deference to state police powers to enforce state laws. The

rationale given by SCOTUS was that non-Indians entering tribal land would not know the

laws of that jurisdiction, and thereby, would not be “on notice” that they could be

committing a crime prior to doing so; therefore, it would not fair to hold perpetrators

accountable. However, in all state jurisdictions in the U.S., ignorance of the law is not a

defense under common law, and the constitution reserves to the states the power to

ensure the health, safety and welfare of its citizens.124 From this perspective, it is

124 The Tenth Amendment of the U.S. Constitution reserves all powers not enumerated by the Constitution or legislated by Congress to the states. Under general police powers of states, they hold the power to regulate the health, safety, and welfare of its citizens. If Tribal Nations were recognized as having similar authority, there would be no limitation on prosecuting perpetrators of crimes on tribal land based on non- Indian status. 126

apparent that what was at stake for SCOTUS was limiting Tribal Nation sovereignty, not

preserving the constitutional rights of non-Indian perpetrators of crimes.

Both the right to counsel and the lack of familiarity with tribal laws presumes a framework of the U.S. legal system where the model of restitution 125 and other long- standing practices of tribal justice systems were not legible at all to SCOTUS because these legal systems did not resemble the U.S. “formal court system.”126 Sadly, what tribes lacked was not a fully developed legal system but a politically legible way to translate their practices to SCOTUS. Melissa Tatum and Jennifer Hendry explain how this breakdown of rights discourses at the intersections of legal cultures is a “desire on the part of the dominant legal culture ‘to exercise sovereign agency as mastery over meaning’.” 127 That desire of the SCOTUS is precisely what was at play in Oliphant,

which is made abundantly clear during the oral arguments: the Supreme Court assumed

tribal legal systems could not be fair to non-Indians and fallaciously equivocated on the

meaning of “Indian” to justify its conclusions.

During oral arguments, Attorney Ernstoff explained to Justice Potter that

constitutional rights do not exist per se under the jurisdiction of the Suquamish Indian

Tribe for non-Indians; it is at this point that Rehnquist interrupts his explanation to make

clear that is his concern. Rehnquist says, “Well, if you[‘re a member] […] of [a] moose

l[odge] and a grand moose [locks you] […] up in a men’s room overnight you are not

being deprive[d] of any constitutional right, are you” (48:49)? 128 Raising this question

125 Oliphant, 98 U.S. at 197. 126 Id. at 197. 127 Jennifer Hendry and Melissa Tatum, Human Rights, Indigenous Peoples, and the Pursuit of Justice, 34:2 Yale Law and Policy Review 375 (2016). 128 Oliphant v. Suquamish Indian Tribe Oral Argument, Jan. 9, 1978, Oyez Body Politic (May 12, 2019), https://apps.oyez.org/player/#/burger6/oral_argument_audio/15885. This statement is a pretty clear reference to the opinion Justice Rehnquist also wrote in Moose Lodge No. 107 v. Irvis. 407 U.S. 163 (1972) 127

implied Justice Rehnquist’s conflation of the Suquamish Tribe government with a

voluntary association, which is not subject to the affirmative protection requirements of

the bill of rights as a state actor would be under substantive due process protections under

the Fourteenth Amendment. In Oliphant, the import of Rehnquist’s assertion is that the

non-Indian defendant would not enjoy equal protection rights if the tribe, qua voluntary

association, had been allowed to prosecute his crimes. However, ICRA required these

protections, which required tribes to uphold most of the same constitutional rights

required of states via the reverse incorporation of the Fifth Amendment due process

requirements by the Fourteenth Amendment, 129 and some tribes had long-standing

practices mirroring the rights in the Bill of Rights.130 Rehnquist’s mastery over the meaning of the concept, “Indian,” led him to ignore over 100 years of legal precedents.

Justice Rehnquist’s equivocation on the meaning of Indian status with a voluntary association reduces tribal sovereignty to a liberal ideal of electing to associate with other persons, based on a presumption that society is comprised of autonomous liberal subjects that then opt to associate with others. 131 Rehnquist conveniently ignores the protections of ICRA, already legislated by Congress. This assertion by a SCOTUS justice reduces tribal sovereignty existing since time immemorial, built on a long history of culture,

(holding that the state’s regulation of a liquor license did not qualify as state action where issued to a discriminatory Moose Lodge unwilling to serve African Americans). 129 Bolling v. Sharpe, 347 U.S. 497 (1954) (holding that state actor schools discriminating on the basis of race was a violation of due process clause of Fifth Amendment and applied to states through enactment of the Fourteenth Amendment). 130 For example, Pascua Yaqui cultural practices have included the right of having a person speak on a defendant’s behalf since time immemorial. 131 April L. Cherry explains that Locke’s liberalism asserts that “[m]en in the state of nature have the absolute freedom to control their property and their persons as they see fit within the bounds of the law of nature.” Liberalism fails to account for structural inequalities reproduced by the very relational identities established within a hierarchical system of economic power. Social Contract Theory, Welfare Reform, Race, and the Male Sex-Right, 75 Or. L. Rev. 1037, 1052 (1996). 128

traditions, and family, to the voluntary choice to associate with a group of unrelated

persons. At the heart of this equivocation is his presumption of the liberal subject devoid

of any citizenship status, which misses the key element of the status “Indian”: being a

citizen of a sovereign government, a political status.

A private association for the most part represents the fraternization of white,

middle class citizens who of their own volition decide to include certain persons and

exclude others 132; this analogy to tribes is false and fails to understand the unique

political status of tribes and their inherent sovereignty as nations existing since time

immemorial. Meanwhile, the Oliphant holding elevates protecting the sovereignty of the

non-Indian individual. 133 Liberalism was reaffirmed, over the sovereignty of a Tribal

Nation. Justice Rehnquist justifies this dispossession of sovereignty through expressing concerns about the non-Indian individual’s liberty. Doing so juxtaposes identity of

“Indian” as a group political status with the liberty interest of non-Indian U.S. citizens;

this equivocation teases out a core inability of constitutional law to adequately address

sovereignty possessed by Tribal Nations.

Through analogizing with a voluntary association, Rehnquist implied that a tribe

is no more than a private party not required to ensure due process for a non-Indian

perpetrator; by implication, his statement denies the sovereignty of the Suquamish Tribe

as a sovereign government in order to dispossess all tribes of the right to criminally

prosecute non-Indians. Through his mastery over the meaning of the concept, “Indian,”

132 The right to include or exclude, as fundamental features of property law, is always wrapped up in the ways in which property rights have been accessible primarily to persons considered “white,” not persons of color. See Harris, infra note 134. 133 Arguably, this prioritization of the rights of white non-Indians also reaffirms whiteness as property bolstered by a legal system built upon white supremacy and the implicit and pervasive valuation of property rights over civil rights. 129

Rehnquist applies the neoliberal ideology of autonomous citizen subjects that volitionally

engage in associations as the legal origin of Tribal Nations; this neoliberal framework

misunderstands Tribal Nations’ inherent sovereignty as political entities that gives rise to

their political power over persons entering their territory. Rehnquist’s misguided

neoliberal basis demonstrates precisely how whiteness persists in reproducing the

genocidal logics of disappearance for Native peoples. Rehnquist’s prior 1972 decision in

the Moose Lodge No. 107 v. Irvis case referenced by his comparison of the Suquamish

tribe to a moose lodge, sheds more light on his neoliberal assumptions.134

In Moose Lodge, Justice Rehnquist reaffirmed that private acts of racist

discrimination could not be regulated by the rights enumerated in the constitution and

reversely incorporated under the Fourteenth Amendment. The Court held, in part, that

operation of the liquor law regulations enforced by the Moose Lodge did not implicate

the government under the state action doctrine to establish a basis of an equal protection

claim under the Fourteenth Amendment, explaining how “[i]t conducts all of its activities

in a building that is owned by it. It is not publicly funded.” 135 This holding makes clear that SCOTUS protects the liberty interests of private individuals to both associate or exclude as long as doing so occurs on private property. 136

Unlike Shelley v. Kraemer137 where the government refused to be implicated in

134 Moose Lodge No. 107, 407 at 163. 135 Id. at 171. 136 The Court makes no attempt to address one of the central critiques in Cheryl Harris’s article “Whiteness as Property,” which recognizes that property rights have not been protected for African Americans or Native Americans. Protecting the right to discriminate in this way is particularly problematic where U.S. history of dispossession of labor and property has occurred disproportionately for persons of color. The import of this legal rule is that if you are white, you may exclude and have your liberty reaffirmed to do so. Cheryl I. Harris, Whiteness as Property, 106 Harvard L. Rev. 1709, 1718 (1993). 137 The legal rule here is that action prohibited by the Fourteenth Amendment must be tied to state actors, and “the Fourteenth Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” 334 U.S. 1, 13 (1948). 130

reproducing racism by virtue of a court judgment that would enforce racially restrictive

covenants excluding African Americans, the Moose Lodge private club operating in a

private building was insulated from being held accountable for its racist refusal to serve

alcohol to African Americans despite the state having issued the liquor license. In Moose

Lodge, the rights of association as a private exercise of individual liberty were given

more weight than the concern of the government’s implication in racist discrimination by

not including an anti-discrimination provision in its liquor licensing statutes; the de facto

impact was that African Americans were not served alcohol in any clubs because full

license quotas precluded non-racist clubs from being started. 138 The message was clear:

you may use racist bases to exclude on private property.

However, the larger import of Moose Lodge and Oliphant in light of the history of

the dispossession of property rights for persons of color is that the racist liberty interest of

the freedom (encompassing the idea of individual liberty and sovereignty) to exercise

harmful power to exclude from access to resources over a person of color by a private

entity is permissible, while a tribe’s authority to exercise power over a non-Indian creates

fear of potential rights violations that SCOTUS prohibits at the expense of Tribal

Nations’ sovereignty. The real difference here is property rights because non-Indian

associations possess the rights to both include/ exclude persons from their property, but

sovereign nations may not include persons entering their territory to prosecute criminal

acts; SCOTUS was not preserving civil rights of non-Indians, but reaffirming the full

access to property rights afforded by whiteness. Historically, Native peoples have

138 Moose Lodge, 407 U.S. at 163. Both access to licenses and the right of private associations to exclude should be viewed as overlapping layers of white privilege, bolstering the exclusion of African Americans in this case. 131

exercised the same rights to include or exclude as whites.

The theoretical framework of whiteness as disappearance helps illuminate that

Rehnquist’s fallacious equivocations were acts towards disappearing Native peoples via

the application of property rights, expanding the individual liberty interests of non-

Indians while limiting Tribal Nations’ sovereignty; his racial bias is clear. Indigenous,

Tribal Nations in the U.S. are the only sovereigns, including U.S. states, in the world that

do not possess territorial sovereignty over their lands because of Rehnquist’s

equivocations. However, the fact that Rehnquist deployed such a persuasive tactic to

inspire fear in his fellow justices that Tribal Nations could act in discriminatory ways

when prosecuting non-Indians was sufficient to change the course of tribal criminal

jurisdiction, a significant irony for constitutional rights.

Had Rehnquist been capable of being attuned to his own white privilege and how

that assured his own and persons like him access to private associations conducting

events on private property, perhaps he could have attempted to step outside of his narrow

worldview to consider that Native peoples in the U.S. had retained inherent sovereignty

limited historically only by means of forceful oppression and dispossession of their sacred homelands. Private property and the affirmation of those rights look very different through a lens that examines whiteness as affording a kind of property interest that assures different liberties than persons of color enjoy. Using this lens, it is apparent that

Rehnquist’s equivocation on “Indian” with a voluntary association was unjust and relegated tribal sovereignty after Oliphant to a conceptual category of membership. 139

139 Allison M. Dussias, Geographically-Based and Membership-Based Views of Indian Tribal Sovereignty:The Supreme Court's Changing Vision, 55 U. Pitt. L. Rev. 1 (1993). The Oliphant case symbolizes a significant shift by SCOTUS of viewing tribal sovereignty in terms of membership instead of the usual way of sovereigns possessing authority over all lands within their territories. While citizens of 132

However, VAWA 2013 incrementally restored sovereignty.

III. Whiteness as Disappearance as the Logics of Federal Indian Law

VAWA 2013 provided much needed access to legal protection for Native women and other tribal members experiencing domestic violence by non-Indians unprecedented globally; however, the jurisdictional power to prosecute non-Indians was fully intact prior to Oliphant.140 VAWA 2013 tribal provisions represented a modest corrective of the sovereignty previously extinguished. Further, SCOTUS diminished sovereignty using individual political identity, being a non-Indian was intended to designate anyone lacking

a political affiliation with a Tribal Nation. As Omi & Winant explain in “Racial

Formation,” a racial project is one that “creates or reproduces structures of domination

based on racial significations and identities.”141 Cornel West also describes the discursive

construction of white supremacy as a project that “set[s] the perimeters and draw[s]

boundaries for the intelligibility, and legitimacy of certain ideas.” 142 Systemic racism is a social construction that aims to dominate based on racialized difference. While Morton v.

Mancari firmly established that federally recognized tribes were groups with a “unique political status” to which the U.S. owed an obligation, this treatment of Native peoples as

tribes are more than mere “members” of an associated group, SCOTUS diminished the meaning of citizenship in this case. 140 435 U.S. at 191. At the time of this SCOTUS legal opinion, there was no differentiation between member-Indians and non-member-Indians of the prosecuting tribe; after United States v. Lara, tribal members and non-members were “Indian” for adjudicatory purposes under civil tribal law and though untested, presumably this same standard applied for prosecuting non-member Indians in criminal cases. 541 U.S. 193 (2004). 141 Michael Omi and Howard Winant, Racial Formation in the United States 128 (3rd ed., Routledge/Taylor & Francis Group 2015) (1986). See chapter two for a full discussion of critical race theory and whiteness as property. 142 Cornel West, Genealogy of Modern Racism, in Race Critical Theories 92 (Philomena Essed and David Theo Goldberg, eds., 2002). 133

groups to be “civilized” and assimilated is a racial project still shaping U.S. policy.143

Federally recognized tribes and their members possess a precarious legal status that walks

the fine line of identity being defined based on blood quantum, which explicitly draws

upon historical racial fictions, and based on political status designated according to

shared cultural traditions and history. Native women activists adapted a critical race

approach, developing a critically sovereign feminist methodology that illuminates the

ways in which U.S. policies function as a genocidal logics concretely manifesting as

violence against Native women. 144

It is through the adaptation of the theoretical lens of whiteness as property that reproductions of racism in Federal Indian Law becomes clearer: controlling legal opinions contain legal rules based long ago on racist presumptions and legal exclusionary practices. In these terms, the Oliphant case clearly established a legal and social domination by non-Indians committing crimes against Indians in Indian Country by prohibiting prosecution, which reduced tribes’ ability to self-govern; here, tribal sovereignty was already illegible. While jurisdiction was not limited only to restricting crimes of sexual violence, “it is in this context that the consequences of these jurisdictional limitations are most pronounced.” 145 Indian country reported that “86

143 Morton held that members of federally recognized tribes who were given preference for hiring and promotion at the Bureau of Indian Affairs was not discrimination based on race, but a public policy promoting the U.S. trust obligation. “As long as the special treatment of Indians can be tied rationally to the fulfillment of Congress' unique obligation toward Indians, such legislative judgments will not be disturbed.” 417 U.S. 535, 537 (1974). This rationale is critical for the continuance of any and all Federal Indian Law policies and institutions that are derived from the federal government’s fiduciary responsibility to protect Indians as “Domestic Dependent Nations.” 144 This critically sovereign feminist methodology, outlined in detail in Chapter Two, is applied to the two case studies analyzed in chapters 3 and 4. Also worth noting, but beyond the scope of this project, are the Tribal Nations not federally recognized and persisting as sovereign nations within the U.S.; inherent sovereignty restored for federally recognized tribes arguably reaffirms the inherent sovereignty of all Tribal Nations regardless of recognition. 145 Supra note 52, at 6-8 (Quoting Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America Ch. 3 (2015)). 134

percent of sexual assault experienced by Native women” is perpetrated by non-Indians. 146

Despite the federal government having jurisdiction to prosecute, approximately 60.3% of

cases were declined by federal prosecutors from October 1, 2002 to September 30, 2003,

with only 27 of 475 cases filed being prosecuted by other courts. 147 Federal prosecutors

remain notorious for not prosecuting cases they are unlikely to win regardless of probable

cause. In effect, Oliphant created a safehaven for criminal activity perpetrated by non-

Indians, especially ongoing sexual violence against women. While VAWA 2013 was an

incremental corrective of the sovereignty lost, it restricted tribal jurisdiction over non-

Indians to “special domestic violence criminal jurisdiction” authorized by congressional

legislation.148 Through Oliphant, federal law effected the disappearance of Tribal Nations

and its peoples through complicity with the disappearance of Native women by limiting

the power to prosecute non-Indians.

IV. Significance of VAWA 2013 Tribal Provisions

VAWA 2013 with tribal provisions is a significant example of where the intersections of tribal governments and the U.S. federal government resulted in incremental restoration of tribal sovereignty, the most significant restoration since 1978, post-Oliphant.149 Arguably, this shift occurred only because the advocacy was not framed in the discourse of sovereignty but in rights-based discourse, appealing to the liberal

146 Id. 147 Maze Report, supra note 2. See also US Department of Justice, Bureau of Justice Statistics, Compendium of Federal Justice Statistics, 2003, available at http://www.ojp.usdoj.gov/bjs/pub/pdf/cfjs03.pdf, visited 26 April 2006. 148 Indian Civil Rights Act, Tribal Jurisdiction Over Crimes of Domestic Violence, 25 U.S.C. § 1304. 149 Supra note 10. 135

underpinnings of U.S. common law. 150 This hermeneutic assumes the ethical orientation

that individual rights are “natural” for all persons and that nations ought to protect those

rights. While this worldview seems facially ethical and neutral, it fails to account for

systemic racism and its privileging of whiteness. Given SCOTUS’s prior concerns

expressed in Oliphant that non-Indian perpetrators’ rights might not be protected by

Tribal Nations, it was imperative that activists take up the language of the rights of

autonomous liberal subjects to counter the existing rhetoric: the rights of Native women

victims must be protected like other U.S. citizens. This message was legible to lawmakers

who voted for VAWA 2013.

Passage of VAWA 2013 represented a modest restoration of Tribal Nation

sovereignty and the most significant restoration in U.S. history. Prior measures

dispossessing sovereignty throughout the history of federal Indian law and policy had not

been restored. VAWA 2013 is a paradigmatic example of what might be possible for

further restoring Tribal Nation sovereignty. Congress may delegate power to tribes

through passing specific legislation, which is how the tribal provisions of VAWA 2013

restored tribes’ jurisdiction to prosecute non-Indians committing crimes of domestic

violence, dating violence, or violating protection orders. 151

Oliphant represented the beginning of the erosion of jurisdiction over non-

150 Human Rights, Indigenous Peoples, and the Pursuit of Justice, 34 Yale L. and Pol. Rev. 2, 351 373 (2016). 151 Indian Civil Rights Act, Tribal jurisdiction over crimes of domestic violence, 25 U.S.C. § 1304. While Tribal Nations always already retain inherent sovereignty, federal Indian law and policy has limited sovereignty and asserted that any powers previously limited may be delegated via Congressional legislation. United States v. Wheeler, 435 U.S. 313, 319 (1978) (citing the “undisputed fact that Congress has plenary authority to legislate for the Indian tribes in all matters, including their form of government”) (internal citations omitted). 136

members, 152 both non-member Indians and non-Indians. 153 SCOTUS oral arguments

made clear that sovereign power to prosecute all persons committing crimes in the

territory of the Suquamish tribe was unthinkable, undermining rich cultural

conceptualizations of group self-determination that would have resulted in different

rulings and in opposition to the jurisdictional authority of every other sovereign in the

world. This illegibility arguably reproduced the highest rates of intimate partner violence

against women anywhere in the U.S. because of the concurrent failure of the federal

government to prosecute these crimes, which is a racial project as defined by Omi &

Winant. 154 This racial project is one of disappearance, which Native women activists in

the movement for the safety of Native women made clear. 155 Through the transformation

of the federal laws protecting survivors of domestic violence over several decades, the

tribal provisions eventually passed Congress and President Obama signed it into law.

A. VAWA History

Shifts in federal laws by the 1990’s, resulted in prosecuting crimes of domestic

violence. When initially passed, the Violence Against Women Act (VAWA) included a

civil right of action in federal court and created new federal domestic violence crimes of

interstate stalking, 156 interstate travel to commit domestic violence, and interstate travel

152 “Member” is used here to connote citizenship in a federally recognized tribe because of the use of “member” pervasively in federal policy; however, it is critical to be reminded that members are citizens of sovereign nations. 153 Supra note 9. 154 Michael Omi & Howard Winant, Racial Formation in the United States 128 (3d ed. 2015).

155 According to Jacqueline Agtuca, colonizers “could not succeed in establishing their dominance in this country without changing the status of tribal women from an honored role to one of a possession. Jacqueline Agtuca, Safety for Native Women: VAWA and American Indian Tribes 14 (2014). 156 “Interstate” intentionally included Tribal Nations in its scope to be treated like U.S. states, as it expressly defined “interstate” to include entering and leaving Indian country. 137

with intent to violate protection order; and the Full Faith and Credit clause, which

required all states and all tribes to recognize protection orders regardless of where the

order was granted. 157 As a result of mandatory arrests and evidence-based-no-drop prosecutions, rates of domestic violence outside of Indian country declined; however,

Tribal Nations remained unable to prosecute non-Indians for domestic violence or protection order violations, and the feds consistently failed to prosecute crimes of domestic violence and sexual assault by non-Indians, resulting in the highest rates of violence against women in the world. The 2007 Amnesty International Maze Report documented these human rights abuses and conveyed the statistics and legal import of the jurisdictional issues in a way that was accessible to a broad range of audiences. It garnered international attention to the problems in Indian country resulting from Federal

Indian Law and federal courts’ failures to prosecute non-Indians while prohibiting tribal court prosecutions. 158

B. VAWA Tribal Provisions

There were six statutes implemented as part of VAWA 2013 that addressed tribes or Indian country as follows: Crimes and Criminal Procedures, Assaults within maritime and territorial jurisdiction; 18 United States Code § 113; Offenses committed within

Indian country, 18 United States Code § 1153; Constitutional Rights of Indians, Tribal jurisdiction over crimes of domestic violence, 25 United States Code § 1304; Indian Law

Enforcement Reform, Indian Law and Order Commission, 25 United States Code § 2812;

157 This provision was struck down in United States v. Morrison. 529 U.S. 598 (2000) (holding that Congress had not authority under the commerce clause to regulate gender-motivated crimes of violence that were not considered economic activity, thereby, making the civil provision unconstitutional). 158 See Maze Report, supra note 2, at 2. 138

and Crimes and Criminal Procedures, Hunting, trapping, or fishing on Indian land, 18

United States Code § 1165. Of these statutes, the core legislation comprising the “Special

Domestic Violence Criminal Jurisdiction” is enumerated in the Tribal Jurisdiction Over

Crimes of Domestic Violence section of the Indian Civil Rights Act, 25 United States

Code § 1304 (commonly called, “tribal provisions”). What is significant about the tribal

provisions is that federally recognized tribes that “opt in” to the special court

requirements may prosecute non-Indians committing crimes of domestic violence, dating

violence, and protection order violations in Indian country; the non-Indian perpetrator

must meet certain requirements indicating they have been put on notice as to the Tribal

Nation’s jurisdiction. Non-Indians who live in Indian country, are employed in Indian

country, or who have a spouse or intimate partner who is Indian are considered to be on

notice as to jurisdiction.

More specifically, in order to “opt in” to implementing VAWA 2013, federally

recognized tribes must ensure that non-Indians being prosecuted are afforded procedural

safeguards to ensure a fair process in accordance with the constitution, including: all

rights afforded under the Indian Civil Rights Act, the right to an impartial jury (must

include non-Indians), the right to file a habeas corpus writ to challenge jurisdiction, right

to petition to stay detention by the tribe, and the benefit of rights required under the

Tribal Law and Order Act of 2010 (including providing effective assistance of counsel,

indigent counsel licensed in any jurisdiction, a presiding judge in any jurisdiction, make

criminal laws publicly available, and maintain a record of the proceeding). 159 These

requirements generally require significant additional resources to implement de novo,

159 VAWA 2013’s Special Domestic Violence Criminal Jurisdiction (SDVCJ) Five-Year Report 39-40 (National Congress of American Indians March 20, 2018). 139

although many tribes have longstanding practices of enacting these procedural safeguards prior to VAWA 2013. 160

VAWA 2013 represents a small kernel of hope towards restoring tribal sovereignty post-Oliphant.161 While the rationale of the SCOTUS supporting the elimination of tribal criminal jurisdiction over non-Indians was highly questionable in the first place, activists used the rhetoric of human rights while also educating non-legal audiences about tactics of disappearance in order to mobilize support to influence the vote of congresspersons. Where the judicial branch failed to deliver justice in Indian country, the democratic process succeeded in facilitating an incremental shift towards the restoration of inherent sovereignty through delegated congressional power.

The lens of whiteness as disappearance illuminates the significance of VAWA

2013 and explains how irrational and inconsistent federal policy persistently shapes the relationship between the U.S. government and Tribal Nations. Adaptation of the exclusionary logics of whiteness as property is a necessary analytical lens for explaining how federal power discursively constructed identities for Native Peoples and Tribal

Nations. It is through increasing literacies using the framework of a critically sovereign

160 See supra note 102. 161 VAWA 2013 is currently pending passage by Congress as H.R. 1585. This new bill would add tribal protections relating to obstruction of justice, sexual violence, sex trafficking, stalking and assault on law enforcement or correction officers. H.R.1585 - Violence Against Women Reauthorization Act of 2019, Congress.gov (Mar. 25, 2019), https://www.congress.gov/bill/116th-congress/house- bill/1585?q=%7B%22search%22%3A%5B%22violence+against+women+reauthorization+act%22%5D%7 D&s=3&r=1. It is devastating that as of the writing of this chapter, it has yet to be passed by Congress. In the words of Senator Tom Udall, “It is appalling that Senate Republican leadership is still refusing to reauthorize VAWA—a proven program that protects women and families in New Mexico and across the country. While this bill sits in the majority leader’s legislative graveyard, the crisis of Missing and Murdered Indigenous Women is devastating Native families in New Mexico and across the country.” Violence Against Women Act reauthorization is needed to protect women in New Mexico and across the U.S., United States Senate Committee on Indian Affairs Nov. 19, 2019 (Sept. 20, 2020 at 8:48 AM), https://www.indian.senate.gov/news/press-release/photo-udall-joins-senate-democrats-introduce-vawa- reauthorization-bill-strong. 140

feminist methodology that Native women succeeded in educating lawmakers using popular education models. VAWA 2013 was an incremental victory for transforming systemic race relations in Indian country. It was possible because of the transformative pedagogical tools deployed by Native women activists.

V. Conclusion

The passage of the Violence Against Women Act of 2013 was a critical turning point in the history of federal Indian law and policy, restoring a modicum of sovereignty for Tribal Nations. 162 By tracing how whiteness as disappearance was conscripted in the history of federal Indian law and policy through certain expectations, terms, and practices, it sheds lights on how the two case studies analyzed in chapters three and four enacted a form of Indigenous Feminist Pedagogy disrupting these tactics. The next chapter explores how the play, Sliver of a Full Moon disrupted the white supremacist tactics embedded in federal Indian law and policy, which were illuminated by the framework of whiteness as disappearance.

162 Supra note 10. 141

Chapter Three Mary Kathryn Nagle’s Sliver of a Full Moon: Participatory Performances for Critical Sovereignty Consciousness

"By doing VAWA these many years, we wanted it to become something that would always be there for women." ~Tillie Black Bear, August 24, 20041

“Nothing is going to remain the way that it is. Let us, in the present, study the past, so as to invent the future.” ~Augusto Boal, March 20082

I. Introduction

Tillie Black Bear’s words in 2004 captured the spirit of the movement for the

safety of Native women, a movement that predated passage of the Violence Against

Women Act 2013 (VAWA) tribal provisions by more than three decades. 3 “Sliver of a

Full Moon” (Sliver) written by Mary Kathryn Nagle (Cherokee Nation of Oklahoma) is

unique because it memorializes some of the activist pedagogical strategies surrounding

passage of VAWA 2013. 4 It was created in April 2013 immediately following enactment of the legislation, as the first three Tribal Nations were piloting the provisions to, once again, exercise jurisdiction to prosecute non-Indians. 5 However, the play is also a living,

dynamic performance that continues on each time it is read; it includes Native women

sharing their own stories, not someone else’s story told by an actor, and Native people

portraying Native people. 6 While capturing this significant moment in time, culminating

1 Jacqueline Agtuca, Safety for Native Women: VAWA and American Indian Tribes 16 (2014). 2 Augusto Boal, Theatre of the Oppressed ix (New ed., Pluto Press 2008) (1974). 3 Supra note 1, at 11. 4 Play reading by playwright Mary Kathryn Nagle on Nov. 19, 2015, Sliver of a Full Moon, Harvard Radcliffe Center (May 31, 2020, 8:11 PM), https://www.youtube.com/watch?v=YhTqY7PAZ0I. 5 VAWA 2013’s Special Domestic Violence Criminal Jurisdiction 5-Year Report, National Congress of American Indians 40 (2018), http://www.ncai.org/resources/ncai-publications/SDVCJ_5_Year_Report.pdf. 6 This tactic serves to disrupt the reproduction of “redface,” which Nagle explains in her interview with Creative Time. YouTube interview with Mary Kathryn Nagle, Nov. 3, 2016, Section 3: Under Seize, Summit DC (Oct. 3, 2020 3:27 PM), https://www.youtube.com/watch?v=yG0qqcwffJM. 142

with VAWA 2013, it also articulates different perspectives of this story through engaging

different participants; this practice simultaneously preserves the change in public policy

while also bringing survivors and community participants into the present moment as

counterstorytellers. This play honors the tribal grassroots movement for the safety of

Native women 7 through its promise of giving something that will “always be there for

women.”8 While Nagle’s play is just one moment in a robust and ever-evolving

movement by Native women for Native women’s rights and safety, the play itself

articulates pedagogical strategies that might be deployed by other activists.

The playwright and lawyer, Mary Kathryn Nagle, has explained that she self-

consciously creates her plays to educate the public about issues impacting Tribal Nations.

She explained recently in a PBS interview that

…what we are doing, and I say “we” as playwrights, especially a lot of playwrights of color or any group that has been silenced in American history, I think, that theater becomes a powerful tool to put your story up there and to make up for the gaps in the American education system, you know. I actually have been very fortunate to partner with Krystal Echohawk in her work on IllumiNative. And the research they did showed that, you know, 87% of school curricula, K through 12, do not mention a single Native person after 1900. That’s crazy! … So, again, theater, I really believe in it as a powerful tool especially because you have the power of proximity of someone being in the room, with the actors live on stage. So they may be learning about a moment in history, but they are not just watching it on the history channel or in a movie theater, they’re experiencing it in a very real personal way because it is right in front of them. And it creates a pathway to introduce educational moments that I think are left out in the American school system in a way that isn’t quite as abrasive as giving a lecture or another way of giving information. 9

7 Supra note 1, at 12. 8 Supra note 1. 9 Segment: Playwright Mary Kathryn Nagle, Sept. 13, 2019, NM PBS (Oct. 3, 2020 3:25 PM), at 6:05-3:06, https://www.newmexicopbs.org/productions/newmexicoinfocus/segment-mary-kathryn-nagle/ (emphasis added). IllumiNative is a nonprofit initiative to change the narratives of erasure, inaccurate myths and stereotypes about Native peoples, especially in K through 12 education. See The false narratives, invisibility, and the erasure of Native peoples must end, IllumiNative (Jul. 5, 2020 3:02 PM), https://illuminatives.org/. 143

Nagle clearly sees her plays functioning as a form of popular education for transforming

mainstream narratives about Native peoples; writing plays augments her litigation

work. 10 Other Native scholars have also recognized the importance of popular education

approaches to social change.

In her article, “Unmasking, Exposing, and Confronting: Critical Race Theory,

Tribal Critical Race Theory, and Multicultural Education,” educational scholar, Jeanette

Haynes Writer, explains the importance of disrupting stereotypes through education. 11

Quoting Wilma Mankiller, Writer says, “These beliefs are rooted in a history of Othering

and colonization. Mankiller stressed that stereotypes and historical inaccuracies

transmitted in public schools threaten sovereignty because ‘public perceptions fuel public

policy’ (Mankiller, 2003).”12 Writer recognizes the inextricable nature of public policy

and public education. She explains how “European Americans under the auspices of the

colonial and then U.S. government, legislated particulars of domination, it was the

collusion of members of the public with the government that those legislated oppressions

were carried out. Public perception translated into public practice, thus transforming

Native people into objects of subjugation.”13 Writer recognizes the critical role that the

public plays in carrying out policy; if the public remains complicit in white supremacy, it

will continue to be reproduced. However, if education can be utilized as a platform to

10 Nagle is a Partner with Pipestem Law, which focuses its litigation practice on cases promoting Tribal Nation sovereignty. See her bio at “Mary Kathryn Nagle, Partner” (Jul. 12, 2020), Pipestem Law, http://www.pipestemlaw.com/attorney/mary-kathryn-nagle/. Nagle also explains that she “think[s] the arts and theater have the potential to deconstruct some of the harmful narratives that make up our legal framework in the United States. And so, as a playwright, and as an attorney, …[she is]… very excited to tackle both” (2:40 -3:06). See also supra note 9. 11 J. Haynes Writer, Unmasking, Exposing, and Confronting: Critical Race Theory, Tribal Critical Race Theory and Multicultural Education, 10:2 International Journal of Multicultural Education 3-5 (2008). 12 See supra, note 11, at 8. 13 See supra, note 11, at 8. 144

educate the public about shameful injustices, then public policies may shift towards more

justice for Tribal Nations. Instead of threatening sovereignty, education can restore it.

Where schools fail, popular education can compensate. That is exactly what Native

women activists did: deploy Indigenous Feminist Pedagogy to transform the legal system.

This chapter traces the features of the pedagogical strategies embodied in

performances and the words spoken in Sliver readings. By articulating the ways in which

the tactics used by Sliver has the power to influence popular learning about patterns of

violence perpetrated against Native women, this project traces the ways this play

increases literacies of white supremacy as disappearance through its Indigenous Feminist

Pedagogy transformative for legal and political actions. The mitigating role of Native

women’s facilitation of legal literacy learning both inside and outside of politically and

legally privileged discourse communities is an opportunity for democratized learning of

popular education via feminist pedagogy. Nagle’s play outlines just such a popular

education, Indigenous Feminist Pedagogy.

II. Play Overview

Before tracing activist articulations embodied in Sliver, I first want to provide a

brief synopsis of the Sliver readings. Doing so will ground the reader with a broad

understanding of the textual content to support my analysis. 14 While this overview

14 However, it is highly recommended that the reader watch a reading of the play. One of the first readings at a U.S. law school was performed at the Harvard Radcliffe Institute for Advanced Study on November 19, 2015, which can be found online. Play reading by playwright Mary Kathryn Nagle on Nov. 19, 2015, Sliver of a Full Moon, Harvard Radcliffe Center (May 31, 2020, 8:11 PM), https://www.youtube.com/watch?v=YhTqY7PAZ0I. 145

summarizes the features of the text and past performances, what makes Sliver unique is that it changes each time performed. It is never the same play twice. 15

Written Script.

Nagle wrote the first Sliver script in April 2013 after having dinner with two attorneys directly involved in the strategy and advocacy of the VAWA legislation:

Wilson Pipestem (Otoe-Missouria) and Brenda Toineeta Pipestem (Eastern Band of

Cherokee). 16 According to Anya Montiel, the Pipestems knew that “support for tribal inclusion in the bill required that non-Native people understand both the humanity of the issue and the jurisdictional issues in federal Indian law.”17 This conversation convinced

Nagle to begin writing the play, which was completed shortly after President Obama signed the VAWA 2013 legislation into law. Sliver not only memorializes events leading to the passage of VAWA 2013, but it also draws attention to the exclusion of Alaska from the legislation because no Indian-occupied or -owned lands in this state count as

“Indian Country.” 18 That is, future activism requires inclusion of Alaskan Tribal Nations

15 Alex Ates, Yale’s Indigenous Theater Program Gets New Leader, October 14, 2019 12:00 PM, Backstage (Jun. 5, 2020 4:18 PM), https://www.backstage.com/magazine/article/yales-indigenous- performing-arts-program-madeline-sayet-69198/. 16 Anya Montiel, Sliver of a Full Moon: Changing Hearts, Minds, and Legislation (Jun. 5, 2020), 16:4 American Indian Magazine, https://www.americanindianmagazine.org/story/sliver-full-moon-changing- hearts-minds-and-legislation. 17 Id. 18 Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998) (holding that land defined by Alaska Native Claims Settlement Act of 1971 did not constitute Indian Country” because it was not land set aside by federal government for tribal use and not under federal supervision). See also Alaska Native Claims Settlement Act (ANCSA), 43 U.S.C.S. § 1601 et seq. After enactment of the Alaska Native Claims Settlement Act and Venetie decision, only one Tribal Nation in Alaska held land in reserve, the Metlakatla Indian Community. The Only Indian Reserve in the State of Alaska: Welcome to Metlakatla, Alaska, Metlakatla Indian Community (Oct. 3, 2020 4:29 PM), http://www.metlakatla.com/. Venetie and ANCSA significantly diminished the political sovereignty of Alaska Native Tribal Nations to exercise authority over persons entering their territory, resulting in no jurisdiction to prosecute crimes committed in their territory. That is, state authorities must enforce the health, safety, and welfare of Alaska Native peoples. Alaska tribes were exempted by section §910 of VAWA 2013 when passed but was repealed December 2013. However, because exercising this jurisdiction applies to “Indian country,” it cannot be exercised in most of Alaska, except for the Metlakatla Indian Reservation. See Candy Keown, Reauthorization of VAWA House 146

in the protections afforded by VAWA 2013. The play memorializes the past, draws the

audience into the present, and looks towards future activism.

In all its permutations, the play persists in its characterization of the interaction

between Native activists and politicians to reform the law. Further, the play combines the

story of the passage of VAWA 2013 with the storytelling of survivors; each Sliver

reading performs stories within stories, or mise en abyme. 19 This combination draws

upon powerful pathos and ethos appeals that connect with audiences through the

devastating detailing of abuses shared by survivors. It also draws upon keenly articulated

logos appeals to convey the circumstances of VAWA negotiations between tribal leaders

and politicians to memorialize the process on Capitol Hill while also explaining the

jurisdictional issues at stake: Tribal Nations with lands reserved as “Indian Country”

cannot prosecute non-Indians perpetrating crimes there, including acts of domestic and

sexual violence. 20 Despite the fact that every other sovereign on the planet exercises

jurisdiction over all persons entering its geographic territory, the Supreme Court of the

United States (SCOTUS) restricted jurisdiction according to individual identity in

Oliphant. Sliver makes this complex legal situation understandable while also conveying

the gravity of the human rights abuses and limitations on Tribal Nation sovereignty

imposed by these legal restrictions.

Bill 1585 introduced (Jan. 2, 2021 8:26 AM), Alaska Native Women’s Resource Center, https://www.aknwrc.org/reauthorization-of-vawa-house-bill-1585-introduced/. 19 (A term denoting) self-reflection within the structure of a literary work; a work employing self-reflection. "mise en abyme, n," OED Online, March 2020, Oxford University Press (Jun. 1, 2020 5:19 PM), www.oed.com/view/Entry/245796. 20 Please note that despite the passage of VAWA 2013, only Tribal Nations meeting certain requirements and that exercise jurisdiction over Indian Country may prosecute non-Indians. Doing so is cost prohibitive for many Nations. Worse, VAWA 2013 tribal provisions are limited to domestic and dating violence against a dating partner; it does not cover stranger violence or violence perpetrated against other extended family or children. See Chapter Three and Five-Year Report, supra note 5, at 5, 20, http://www.ncai.org/tribal-VAWA. 147

Who performs.

One of the most distinctive features of Sliver is that, each time, it is rewritten to be

performed by a combination of professional actors, Native women survivors, and

community members. This combination of participants changes the cast each time it is

performed. 21 The play is, in fact, rewritten to accommodate new cast members each time,

making it a living expression that transforms in each space in which it is read.

While performances by professional actors usually are the hallmark of most plays,

participation by community members and persons telling their own stories are not.

Stories of survival are shared by the survivors “playing” themselves. This approach

entails that professional actors are not chosen to represent survivors; no one speaks for

them. The sharing of these devastating stories by the survivors themselves magnifies the

persuasive impact of these emotional appeals on audiences. Having survivor cast

members blurs the lines between fiction, from which the audience can detach as “not

real,” and reality where actual persons are sharing some of their deepest vulnerabilities

about trauma occurring because of the existence of unjust laws. By engaging community-

member participants to join the reading of the play, community-members act as

“witnesses” who suffer alongside the survivors as they share their stories. 22 Where the

impact of selecting community-member participants for each reading is less clear,

engagement of non-professionals to participate in readings also makes Sliver unique.

21 Future research could expand upon the understanding of the dynamics of each reading. In particular, understanding the playwright’s reasons for rewriting the play based on each space in which it is performed would enhance the analysis of the rhetorical situation. 22 Future research is suggested to identify specific information about how the community members were selected and participated in each reading. A future project also might include interviewing Mary Kathryn Nagle to learn more about the selection of community-member participants and whether she saw it as a pedagogical function of the play itself. 148

Each reading of Sliver includes participants from the community where it is being performed. Like most live performances, auditions are held and cast members selected; however, Sliver is unique in that non-professionals are selected from each community to be part of the cast. For example, undergraduate students performed some of the roles at the Yale Law School reading. This practice of including local community members further strengthens the memory of the performance in the collective conscious in communities where the reading is held because of the in-depth learning of the material acquired by community-member participants. The inclusion of non-professional, community-member participants add to the dynamic and living nature of the performances of Sliver.

The dynamic process characterizing the ways that Sliver is performed in each space creates a unique learning ecology through participation, persuasive rhetorical appeals, and accessible expressions of complex legal issues. While the contours of the play are ever changing, there are core elements that persist throughout each performance, making Sliver a particularly effective rhetorical tool for social change capable of persuading a broad range of legal and lay audiences. What follows discusses some of the key contours of this popular education tool engaging broad audiences about how violence against Native women is reproduced because of a deeply flawed set of laws governing jurisdiction in Indian Country.

149

III. Traditional Legal Conceptions and Sliver’s Reformulation of Time

One distinguishing feature of Sliver is how it disrupts traditional, normative

conceptions of time. 23 It does so by the ways that the cast reenacts political events that

took place during the advocacy for the passage of VAWA 2013, the recent past,

intermixed with survivors sharing their own stories of past trauma, from the more distant

past. Memorialization of this historical moment along with the various changing

articulations of survivors always is performed in a present moment; the play itself

requires audiences to attend and be part of this embodied “present” in a way that a movie

or book rarely does. The performance itself brings to life the past in a way that written

accounts are often not capable of doing. Sliver also disrupts normative conceptions of

time through revision of oral words spoken for each space wherein it is performed,

enhancing Sliver’s living and dynamic nature. That is, where a written text fixes the

expression in an unchanging medium, the text then becomes less dynamic as of the time

it is written. The text becomes an object, an artifact, somewhat solidified in the past, and

less a part of a living present. Instead, a play that is revised each time performed remains

dynamic, changing, living—ever present. 24 Sliver is primarily revised through changing

survivor cast members.

23 There is a long and complex philosophical history surrounding the significance of conceptions of time; the discussion here cannot begin to do this topic justice and is intended merely to provide a brief context for the ways in which the survivors in Sliver disrupted traditional conceptions of time. 24 Even more fundamentally, this dynamic nature characterizes the kinds of oral histories embodied by the survivors’ stories. This distinguishing feature of oral histories versus written histories carry more powerful pathos and ethos appeals because the audience is able to be present with storyteller. Baca explains how the amoxtli are writings that stretched flat against a wall or floor and delivered orally by the Amoxoaque, ‘those who understand the paintings that contain memories. The manuscripts were literally performed, often accompanied with music and dance. Damián Baca, Mestiz@ Scripts, Digital Migrations, and the Territories of Writing 74 (2008). See also Damián Baca, Rethinking Composition, 500 Years Later, 29:1 JAC 235 (2009). 150

Based on the long history of federal Indian law dispossessing the sovereignty and

land of Native peoples’, disrupting the U.S. legal system’s linear conceptions of time is

critical. The limitations of a society set by a legal system constructed upon primarily

fixed concepts and linear conceptions of time reproduces social tendencies towards what

Bergson coined a “closed society.”25 That is, if time and experiences are treated as living

and not deadened in rigid concepts that fix the past and reproduce what’s possible for the

future, this disruption opens up new possibilities for the legal system to be transformed,

tending towards dynamic transformation of what justice looks like. Through its various

strategies, Sliver’s embodiment of time as living and fluid works to disrupt the fixed notions of time framing the U.S. legal system and its concepts, leading the U.S. legal system towards a more “open society.” 26

A. Fixed Concepts and Fluid Metaphors

Federal Indian law is grounded in written legal concepts that are relatively fixed

and inflexible so as to memorialize history and tradition functioning as social norms in

the common law itself. Through a process reproducing history and tradition, conceptions

of time as static moments 27 bolster the contextual basis for these relatively fixed legal

25 See Henri Bergson, The Two Sources of Morality and Religion 140 (1954). Alexandre Lefebvre acknowledges the influence of Bergson on the development of international human rights through this text: “Bergson had a profound intellectual influence on John Humphrey who was the principal drafter of the Universal Declaration of Human Rights (1948)...it is apparent that he came to view the Universal Declaration in terms of Bergson’s book The Two Sources of Morality and Religion.” Bergson and Human Rights, in Bergson, Politics, and Religion 193 (2012). 26 Supra note 25. 27 Augusto Boal’s critique of the Greek philosopher Zeno’s argument about motion (“Zeno’s arrow”) draws attention to the ways in which analysis that cuts up and disarticulates fluid processes results in impossible logical conclusions. In the story of Zeno’s arrow, when one considers each location in which the arrow is located as it moves through the air, one is forced to affirm both that the arrow is and is not in one particular location; otherwise, one is forced to conclude the arrow has not moved at all. Boal correctly explains that this logics disarticulates the process of movement as discrete conceptions of location, versus acknowledging the interdependence of the arrow continuously “moving towards” the next location. “The 151

conceptions; as new case law precedence is set, conceptions themselves are sometimes

transformed. The legal system presumes time is based on orientation between fixed

objects, ultimately, fixed according to the cycles of rotation of the earth around the sun

and quantified mathematically in accordance. Past, present, and future are then

subsequently conceived along a quantifiable and linear timeline; what came before had a

quantifiable time at which it occurred. Seconds, hours, days, and years, accrue according

to this metric; the past is determined according to this temporal measurement. Using this

linear foundation for history and tradition, the U.S. legal system strictly relies on past

precedence for determining future outcomes, including primarily textual interpretations

of the meaning of legal concepts. Cases are decided by judges who possess the legal

authority to enact their discretion to interpret past case holdings and statutory meanings;

future cases decided repeat the history and tradition of past decisions unless there is a

compelling reason to deviate, such as a fundamental right at stake. 28

The legal system’s conceptions of time align with the norms and traditions of

Western philosophical conceptions of reality, conceptions that analytically divide mind

from body, objects besides the body are understood as objectively existing by way of

analogy to the body. Fixed conceptions of the human mind, body, and other objects

movement does not take place in one place or in another, but rather from one place toward another: the movement is precisely the passing from one place to another, and not a sequence of acts in different places.” Here, the logical impossibility arises where discrete acts are disarticulated one from another, whereas in reality motion itself is continuous. These kinds of logical conundrums incorrectly accounting for lived processes persist when primarily fixed categorical conceptions are ascribed. Supra note 2, at 7-8. 28 Justice Kennedy’s rationale for upholding same sex marriages in the Obergefell case is a powerful example of a SCOTUS justice expanding what persons are included in the relatively fixed definition of marriage to include the union of same sex persons. However, in doing so, he strictly draws upon “history and tradition” insofar as marriage is viewed as one of the most fundamental institutional building blocks of society qua creating families, which excludes other persons who do not subscribe to the institution of marriage. It’s not clear whether Kennedy expanded, revised, or merely increased the categorical participants in this conceptual category. 576 U.S. 644 (2015). This explication is based in part on classroom discussions in Professor Massaro’s Constitutional Law (Spring 2018). 152

construct a view of reality that makes invisible the dynamic nature of reality. That is,

bodies existing concurrently within the same space and time horizons exist as real. Such

concepts struggle to make sense of consciousness itself because other than by linking

consciousness to a physical brain perceiving itself, it cannot exist at all. Spirit, creator,

and time as immemorial are beyond the scope of reason, and consequently, do not exist.

And subsequently, knowledge is something derived analytically from concurrence of

existence in space and time independent of any subjective consciousness perceiving the

object of knowledge; what can be known is objectified and fixed according to this past

concurrence memorialized in fixed concepts, not something that is a living process.

For the U.S. legal system, this entails that legal precedents shape future decision- making, not discovery of new information or knowledge. Legal precedents rely on definitions, such as “Indian,” that are defined with meaning that is relatively fixed; yet equivocations often occur by judges without accountability when cases are decided. 29

Fixed concepts become frozen in time, and this use of fixed concepts by the legal system

artificially “cuts up” reality into manageable concepts, reproducing and reaffirming itself;

legal reality is far too often reduced to fixed concepts. 30 Legal precedents reproduce the

same outcomes in the future as the past once identities such as “Indian” and “Indian

Country” are established and fixed by the judiciary. This reductivist methodology of

written legal concepts is destructive of lived processes and cannot adequately capture

reality as duration, something lived.

29 See supra Chapter Two, § Rhetorical Dispossession in Oliphant. 30 The word “analysis” comes from the Ancient Greek ἀνάλυσις (análisis, "a breaking-up" or "an untying;" from ana- "up, throughout" and lisis "a loosening"). OED: Special Uses. 3. Philosophy. The action or method of proceeding from effects to causes, or of inferring general laws or principles from particular instances; the tracing back of knowledge to its original or fundamental principles. Frequently contrasted with synthesis n. 1a. "analysis, n.,” March 2020, OED Online, Oxford University Press (April 10, 2020 5:17 PM), https://www-oed-com.ezproxy4.library.arizona.edu/view/Entry/7046?redirectedFrom=analysis. 153

Here, it is helpful to think about Henri Bergson’s conception of time as

duration. 31 The ideological analytic of the “parting of the ways” of continental

philosophy from the imperialist tradition of analytic philosophy centered around the

question of metaphysics: What is being? From the Greeks to the Modern era, most

philosophers presumed a dualistic ontology reliant on Descartes’s cogito; metaphysical

dualism artificially divided the thinking being from the lived world, “cutting up” reality.

The dominant thread in Western philosophy has been to primarily recognize ways of

knowing rooted in reason and logic, elevating the rule of reason to a position of

superiority. The U.S. common law largely relies upon modern philosophers for its

orientation, especially John Locke’s conceptions of individual identity and property. 32

Postmodernism’s beginning was signaled by a metaphysical shift rethinking

“being” in terms of the unconscious, lived experience, and, eventually, recognition of the

discursive construction of reality. This philosophical era began with Bergson and brought

the body back into philosophical and epistemological consideration in phenomenology

and existentialism. While intersections of race, gender, and class in continental

philosophy remained a blind spot prior to the advent of Critical Race Theory (CRT), the

rethinking of metaphysics created a space for postmodernism to cultivate alternative

epistemologies across academic discourses. This ontological revolution in European

31 I reference Bergson here to connect with the tradition of modern analytical philosophy from which Bergson’s philosophy arose; however, his radical departure symbolized a “parting of the ways” that gave rise to a “Copernican Revolution” of sorts in philosophy that was different in kind. This new branch of philosophy came to be known later as “continental philosophy.” Henri Bergson, Introduction to Metaphysics, in The Creative Mind 159, 164-65 (Mabelle L. Andison trans., 1903). 32 According to the law of accession, when the labor of one’s person adds value to property of another, it establishes an ownership claim. This utilitarian orientation undergirds all property law and prioritizes individual rights over group rights. John Locke’s theories arose during the Enlightenment Era of Western European philosophy; these ideologies continue to shape must of the ethical orientation of the common law in the U.S. today. Dukeminier and Krier et al., Property 14 (9th edition 2017). 154

thought marks a beginning for decolonizing thinking and language, paralleling the older

“mestiza” literacies and epistemology eclipsed by imperialist practices. Similarly, John

Borrows explains how First Nations peoples in Canada “have an intellectual tradition that

teaches about ideas and principles that are partial and incomplete. The elders teach these

traditions through a character known as the trickster.” 33 Also, knowledge and the law can

be oriented in terms of culture and context. Borrows explains, “legal traditions are often

at their most relevant when they continually change and address ideas their creators did

not necessarily envision.”34 Continental philosophy embodies a deviation from traditional

Western philosophy rooted in metaphysical dualism, signified by the “parting of the

ways.”

Continental philosophy arose with the theories of Bergson, who explains time as

an intuition known only through human phenomenological experience of living;

Bergson’s philosophy provides a “bridge” between the Greek qua “Western”

metaphysical tradition that undergirds the U.S. legal system and the spiritual traditions of

many Native peoples that orient knowledge and living towards a dynamic, lived, and

spiritual experience. Bergson’s philosophy of time allows for the possibility of translating

the ways in which language can function to allow for dynamic legal processes that tend

away from the construction of closed societies that exclude Native peoples from the U.S.

legal system. According to Bergson, a closed society is closed to anything and anyone

foreign to it; a society of humanity is not possible, for concern lays only within the

33 John Borrows, Frozen Rights in Canada: Constitutional Interpretation and theTrickster, 22 Am. Indian L. Rev. 37, 39-40 (1997). 34 John Borrows, Drawing out Law: A Spirit's Guide xiii (2010). 155

confines of the group itself (symbolically expressed in the image of the walled city,

contained and closed to outsiders).

It is rather another sense that war is the origin of empires. There are born of conquest. Even if war at the outset was not one of conquest, that is what it becomes ultimately, because the victor will have it so convenient to appropriate the lands of the vanquished, and even their populations, and thus profit by their labour. 35

The tendencies of closed societies create the conditions for war and colonization of

Indigenous peoples. Thereby, decolonization requires disrupting these tendencies of fix

concepts and the construction of exclusive mechanisms that profit from it. Reorienting

the conceptualization of time disrupts these colonizing tactics of closed societies.

For Bergson, time exists only as the experience of duration, which is closely tied

to memory. As human beings experience their everyday existence, the present moment is

no longer the present as it immediately creates a memory of the, now, passed, present

moment. Bergson famously uses several metaphors to explain duration. 36 The first

metaphor is a ball of twine that is being unrolled, then as it unrolls in the present, a new

ball of twine is being rolled up, increasing memory of past moments. The new ball of

twine symbolizes the accrual of memory of duration, comprising the past. For Bergson,

the experience of memory itself signifies to the person that each present moment is

different, that is, because the accrued memories of past moments always attach to the

experience of the present. The past accompanies each present moment as a kind of

shadow, trailing along in the present. Bergson also uses the metaphor of the color

spectrum to demonstrate the unity of difference experienced in duration; for example, the

35 Supra note 24, at 276. 36 Bergson uses three images to allude to the intuition of duration with the intention that his reader would experience the intuition of their own duration: color spectrum, ball of thread unwinding and winding again, and a stretched rubber band. Supra note 26, at 164-65. 156

visual perception of the color green becomes increasingly yellow, fading into yellowish

green, until it is, apparently, entirely different in kind: yellow. However, in this example,

it is human consciousness that differentiates the perceived yellowish green as distinctly

yellow as the gradations of color transition from green to yellow; reality is cut up and

difference is solidified by application of discrete, fixed categories. The most obtuse

metaphor deployed in Bergson’s “What is Metaphysics” is the rubber band. He describes

duration as an experience that expands and contracts like a rubber band; when the band

stretches, it is still the same kind of object despite being taut and possessing significant

kinetic potential. Conversely, the relaxed band is less dynamic, static in its potential for

motion. Similarly, duration exists along a continuum of dynamic, living processes and

static, fixed, condensed objects. 37 As human analysis cuts up and makes static the lived

experience of duration, it loses its dynamic features and becomes different in kind. The

common thread of the present and past moments is the unity of duration itself, which is

experienced as an intuition by human beings. If duration of the present moment carries

with it the full force of the past, then the past is never truly forgotten and contained in the

present.

By using Bergson’s distinction between fixed and fluid concepts in terms of the latter’s being better equipped to capture the experience of being, the law’s immobilization of reality and time as something fixed becomes clearer. One can, instead, proceed from the lived experience of duration to analysis by utilizing fluid concepts, like those used in poetry or storytelling such as metaphor and imagery. Knowledge beginning

37 See generally Henri Bergson, Matter and Memory (Zone Books 1988) (1896). Most broadly, memory exists on a continuum with matter. As non-human duration condenses and slows down, it becomes fixed, immobile, inanimate matter. As human duration condenses and slows, it becomes memory—that is, the past. 157

here is a different kind of knowledge than that of traditional philosophy because its

concepts are mobile and fluid. However,

…to do that, it must do itself violence, reverse the direction of the operation by which it ordinarily thinks, continually upsetting its categories, or rather, recasting them. In so doing it will arrive at fluid concepts, capable of following reality in all its windings and of adopting the very movement of the inner life of things. 38

By analogy to ourselves, we can imagine the duration of other beings, which fluid concepts can articulate. 39 This perspective contrasts with James Corder’s claim that “the

moment we speak (or write), we are no longer open; we have chosen, whether

deliberately or not, and so have closed ourselves off from some possibilities.”40 He

establishes a false binary that language must immobilize reality; in this sense, he does not consider the ways that different kinds of alphabetic concepts or non-alphabetic symbols/images function to leave reality open and fluidly conceived, beyond invention.

In this respect, Corder presumes a Greek metaphysical orientation objectifying persons as spatialized objects, fixed and immobile. However, the violence that Bergson describes as a reversal of “ordinary thinking,” also represents a reversal of the original violence of colonizing ideologies that occurred centuries prior and became encoded in fixed concepts of alphabetic language, which the dominant U.S. legal system continues to reproduce.

Scholars such as Walter Mignolo have formulated decolonizing epistemologies to

illuminate how past imperialist dispossession was justified by a lack of alphabetic

literacy. 41 Mignolo “promotes a coevolutionary understanding of alphabetic and

38 Bergson, supra note 25, at 190. 39 Bergson explains this process as an act of sympathy, rooted in the direct intuition of one’s own duration (Time and Free Will 18-19). Bergson’s three metaphors are a demonstration of fluid concepts at work. Henri Bergson, Time and Free Will (F.L. Pogson trans., Dover Publications 2001) (1913). 40 Jim W. Corder, Argument as Emergence, Rhetoric as Love, 4:1 Rhetoric Review 16, 29 (1985). 41 See generally Walter Mignolo, The Darker Side of the Renaissance: Literacy, Territoriality, and Colonization (1995). 158

pictographic cultures” and illuminates the erasure of existing American writing

practices. 42 His work illustrates how colonization of the Americas inflicted totalizing

violence through literacy itself. However, Damián Baca builds upon Mignolo’s

coevolutionary approach and illuminates the ways in which American writing systems

were not only novel compared with other global writing systems but continued to

transgress violence inflicted upon them.

In “Rethinking Composition, Five Hundred Years Later,” Baca cites Patricia

Draher’s example of the ancient Mexican stylistic device that employs “two concrete

terms to convey abstraction…in xochitl, in cuicatl, translated in English to be ‘flower and song’.”43 This literary device employs concepts to function fluidly. Baca elaborates on

the amoxtli as writings that

stretched flat against a wall or floor and delivered orally by the Amoxoaque, ‘those who understand the paintings that contain memories’. The manuscripts were literally performed, often accompanied with music and dance. 44

The multimodal and performative nature of these writings represents a literacy that

accounted for the fluidity of reality in its literary expressions, demonstrated by the

multimodal nature of the texts; amoxtli embodied literacy that was performed in the

spatialized present. Further, Baca highlights how the “[r]eferences to flowers and singing

reinforce the sacred association with the act of writing.”45 In contrast with fixed concepts,

American writings by Indigenous peoples such as the Mayan employed multimodal

literacies or Mestiz@ rhetorics that retain what Bergson called “intuitions of duration,”

honoring the multiplicities of difference of which many written and performative

42 Damián.Baca, Mestiz@ Scripts, Digital Migrations, and the Territories of Writing 135-36 (2008). 43 Damián.Baca, Rethinking Composition, 500 Years Later, 29:1 JAC 229, 235 (2009). 44 Supra note 42, at 72. 45 Supra note 42, at 72-73. 159

literacies are capable. In this way, “Codex rhetorics embrace the diverse inscription

practices of pre-Columbian cultures as fully literate, highly complex, and suitable methods of communication.”46 Baca’s framing of the migrations of Mestiz@ rhetorics

across time and media helps illuminate the ways that the multimodal literacies of the

Americas have persisted and inform the historically alphabetic literacies of colonizing

cultures and their limitations. George Steinmetz’s theories help connect the power of

fixed concepts with these colonizing processes.

George Steinmetz succinctly explains two phases of colonization, an early phase

where genocidal logics were effortlessly justified because “the foreign Other was seen as

heathen and Christianity was the dominant level in social formation” and the modern

phase of “native policy” primarily characterized by “defining and attempting to stabilize

the culture and identity of colonized groups.”47 “Native policy” in the 19th and 20th century became characterized by compelling colonized cultures to “adhere to a single, uniform definition of their own culture.”48 This goal was articulated in eighteenth- and

nineteenth-century U.S. policies first during the treaty era, then later in the allotment,

removal and reservation eras that lasted well into the 20th century. The U.S. formally

enacted its modern phase of colonization through defining “Indian” with implementation

of the Indian Reorganization Act in 1934 (IRA), which rolled out template constitutions

to Tribal Nations that included a percentage of blood quantum. 49 Before IRA, the Major

46 Supra note 42, at 91. 47George Steinmetz, Return to Empire: The new U.S. imperialism in comparative historical perspective, in The New Social Theory Reader 342, 344 (Steven Seidman & Jeffrey C. Alexander ed. 2008). 48 Supra note 47, at 346. 49 Matthew Fletcher suggests it was a myth that tribes were handed complete constitutions and asked to adopt them, but instead were given sample outlines to serve as guides. See The Myth of the Model IRA Constitution?, Turtle Talk Nov. 17, 2007 (May 12, 2019, 12:22 PM), https://turtletalk.blog/2007/11/21/the- myth-of-the-model-ira-constitution/. 160

Crimes Act (MCA) and General Crimes Act (GCA) delegated power to prosecute Indians

and non-Indians in Indian Country without clearly defining “Indian.”50 However, the

racist distinction of white and not white qua “Indian” were operative. Differences

between the colonizers and persons colonized relied upon the distinction of difference,

which discourages complete assimilation because it would eliminate the difference upon

which control is based. Codification in law of dominance over Native peoples required

that difference be maintained categorically; hence, in the U.S. the totalizing concept

“Indian” functions to both retain difference between Native peoples and colonizers while

also eliminating differences between Tribal Nations’ cultures. However, modern

colonization “was thus torn between an impetus to commensurate and to codify the

colonized Other, and the countervailing pressure to prevent the colonized from becoming

so similar to their rules that the colonizer would be forced to acknowledge the

unconscionable arbitrariness of his claim to suzerainty.”51 Steinmetz’s clarification

becomes clearer in light of Michel Foucault’s account of discipline power in the modern

era, which shifts power of the sovereign towards diffuse power that regulates behavior through surveillance. 52 In the modern epoch, U.S. surveillance of Tribal Nation’s limited

sovereignty relies on codifying “Indian” and who counts as “Indian” to a

conceptualization defined by the U.S. government as opposed to Tribal Nations’ self-

determined citizenship criteria. 53 That is, the U.S. legal system codified the meaning of

“Indian” in order to maintain its authority over sovereign Tribal Nations; by virtue of this

50 See infra note 58. 51 Supra note 47, at 346. 52 Infra note 53. 53 Michel Foucault, Power/Knowledge, in The New Social Theory Reader 73, 77 (Steven Seidman & Jeffrey C. Alexander ed. 2008). 161

process of codification of “Indian,” the U.S. demonstrated its recognition of the existence of Tribal Nations as sovereigns by virtue of its need to codify the difference between

“Indians” and non-Indians to maintain control over distinctive preexisting sovereign nations. This rhetorical move in effect designated anyone “Indian” as non-white and excluded them from the property privileges accruing to white people, the dominant racial category. The fact that these distinctions are maintained symbolizes the perpetuation of power linguistically conferred to whites via colonization over Tribal Nations persisting in the U.S. today.

The fixed concept of “Indian” represents a codification of this regulatory power occurring since the Trade and Intercourse Acts, and later, reaffirmed with the passage of the Indian Reorganization Act (IRA). 54 Deployment of “Indian” as a concept has wide- sweeping consequences for citizens of Tribal Nations. However, the imposition of these kinds of fixed concepts are tactics of control that cannot account for duration as lived experience. Fixed concepts fail to account for duration at all, removing words from the living present and solidifying rigid meaning that is often inaccurate while excluding some group members and including others. This disconnect from the lived past as part of the

54 The first Trade and Intercourse Act was enacted in 1790 to balance out the fiduciary duty of the U.S. government with the official public policy of westward expansion, increasingly dispossessing Native peoples of their lands; white settlers persistently entered Indian Country and harmed Tribal Nation citizens; the Trade and Intercourse Acts delegated power to the federal government to prosecute crimes therein. 1 Stat. 137 (1790); this temporary act was reenacted and slightly expanded in 1793, 1 Stat. 329, and 1796, 1 Stat. 469, and another temporary act followed in 1799, 1 Stat. 743. See also infra note 51, at 103 – 106. By the time of IRA in 1934 blood quantum, a fictionalized racist criterion for determining “Indian” status, determines who counts as “Indian” as a remnant of Allotment Era policies. Doing so puts Tribal Nations in a potentially precarious position given that SCOTUS justices have confused blood quantum criteria itself as a sufficient condition for being “Indian,” ignoring citizenship of a sovereign Tribal Nation, and expressed worries that doing so provides Tribal citizens special privileges based on race. See Abi Fain; Mary Kathryn Nagle, Close to Zero: The Reliance on Minimum Blood Quantum Requirements to Eliminate Tribal Citizenship in the Allotment Acts and the Post-Adoptive Couple Challenges to the Constitutionality of ICWA, 43 Mitchell Hamline L. Rev. 833 (2017). 162

present helps explain why fixed legal concepts, like “Indian” make invisible the

genocidal logics they stealthily reproduce.

SCOTUS precedence and the exercise of Congressional plenary power over

Indian Country has crystallized the meaning of “Indian.” In Morton v. Mancari, the court

held that “Congress did not intend to repeal the Indian preference” of Section 12 of

Indian Reorganization Act, 25 United States Code Section 472, requiring Indian

preference for BIA positions because the U.S. protector role in relation to Indians

requires a special duty. 55 The Court made clear that the preference was granted to

“Indians” not as a distinct racial group, but as members of “quasi-sovereign tribal entities.”56 This federally legislated preference did not violate the Fifth Amendment due

process clause because it was “reasonably and directly related to a legitimate, nonracially

based goal.” 57 However, despite the designation “Indian” being explained as a political

relationship between Native peoples and the federal government, the very designation

itself functions to subordinate Tribal Nations as non-white; otherwise, the “protector

role” would never have existed as all. The holding of Mancari established more clearly

how the U.S. government defines Indian status as membership in a quasi-sovereign tribal

entity. For more than 100 years prior, federal courts enacting federal laws to prosecute

crimes occurring in Indian Country necessarily had defined “Indian” to effect indictments

against alleged perpetrators of crimes since 1790.

What began under the Trade and Intercourse Acts as the regulation of trade

between Tribal Nations and non-Indians morphed into federal jurisdiction to prosecute all

55 417 U.S. at 535, 537. 56 Id. at 554 (emphasis added). 57 Id. 163

crimes in Indian Country under the guise of the government as “protector” of Native

peoples. Under the Major Crimes Acts (MCA) and General Crimes (GCA), Congress

delegated the federal government authority, qua jurisdiction, to prosecute crimes in

Indian Country. 58

The GCA delegated federal jurisdictional authority for addressing “interracial”

crimes committed by Indians and non-Indians in Indian Country; it was specifically enacted to address “interracial” crimes that are generally enumerated as crimes under federal law. 59 GCA allows the federal government to prosecute crimes perpetrated by non-Indians; whereas if no federal law exists under MCA or GCA, the federal government may also “assimilate” the state’s criminal laws to prosecute Indians under the

Assimilative Crimes Act.60 The GCA does not apply if: (1) the crime was by an Indian

against an Indian or the property of an Indian, (2) a crime by an Indian where tribal

jurisdiction has provided punishment under local tribal laws, or (3) the offense falls under

the exclusive jurisdiction of the tribe by treaty. 61 However, much ambiguity persisted as

to whom counted as Indian.

The MCA was passed in 1885, and its enactment offered some clarity about the

meaning of “Indian.” It overturned Tribal Nations’ exclusive jurisdiction and initially

granted federal jurisdiction over the seven crimes committed by Indians against Indians

58 General Crimes Act is also referred to as the Indian Country Crimes Act, 18 United States Code § 1152. The Major Crimes Act, 18 United States Code § 1153 (1885), delegates power to prosecute Indian defendants. 59 General Crimes Act, supra note 50, 60 18 U.S.C. § 13. The state retains jurisdiction over non-Indians where no federal law exists to prosecute a crime. 61 See also Williams v. United States, 327 U.S. 711 (1946) (holding that Assimilative Crimes Act, 18 U.S.C. § 13, allows federal prosecutions based on state criminal law where federal criminal law over an offense is lacking in Indian country). However, this holding is expressly counter to the legislative intent of the act to apply to federal enclaves outside Indian Country. 164

of murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny.

United States v. Kagama held that because of tribes’ dependent status that the U.S. had a duty to protect Tribal Nations’ peoples as “wards” of the U.S. government, citing authority to hear cases arising in Indian Country in district court as extra-constitutional

plenary power. 62 Further, “the Indian tribes, residing within the territorial limits of the

United States, are subject to their authority, and when the country occupied by one of

them is not within the limits of one of the States, Congress may by law punish any

offence committed there, no matter whether the offender be a white man or an Indian.” 63

This distinction between being a “white man” and “Indian” is clearly a racial designation

making clear that Indians are not white. However, there is no clear definition of “Indian”

to prove identity for indictments.

When prosecuting crimes under MCA, federal prosecutors must prove the elements of the crime beyond a reasonable doubt, including that the defendant or perpetrator is “Indian.”64 However the statutes themselves do not define “Indian,” which

has been left up to judicial discretion. 65 For the most part, courts have allowed

determination of Indian status where victims or perpetrators are members of a federally

recognized tribe. United States v. Antelope affirmed that Indian status according to the

MCA was not a racial designation, but a political status.66 Most recently in the Ninth

Circuit Court of Appeals, the federal judicial district for many southwest states and more

than two dozen Tribal Nations, the United States v. Zepeda held that “proof of Indian

62 118 U.S. 375 (1886). 63 Id. at 381. 64 David H. Getches et al., Cases and Materials on Federal Indian Law 538 (7th Ed., American Casebook Series 1979) (2017). 65 Supra note 64, at 538. 66 430 U.S. 641 (1977) (explaining that when federal regulations govern sovereign political communities, the legislation is not governing a racial group, but a political status). 165

status under the [MCA] requires only two things: ‘proof of some quantum of Indian

blood, whether or not the blood derives from a member of a federally recognized tribe,

and (2) proof of membership in, or affiliation with, a federally recognized tribe.”67 The

inclusion of blood quantum in this test is a racialized basis superimposed on Tribal

Nations’ own determinations of who count as citizens, undermining political sovereignty.

The potential deprivation of life and liberty requires any amount of Indian blood, whereas

criteria for federal recognition under the Indian Reorganization Act where someone is not

otherwise a member of a Tribal Nation requires at least fifty percent blood quantum.68

This inconsistency only makes sense through the framework of disappearance. As Judge

Kozinski rightly noted in his concurring opinion, this test “transforms the Indian Major

Crimes Act into a creature unheard of in federal law: a criminal statute whose application

turns on whether a defendant is of a particular race.”69 Even more poignantly, Judge

Ikuta identifies that the court “disrespect[ed] the tribe’s sovereignty by refusing to defer

to the tribe’s own determination of its membership rolls.”70 As the Indian Child Welfare

Act and Santa Clara Pueblo holding made clear: the right to decide who are citizens is

the most fundamental power of a sovereign government and necessary for self-

determination. 71 Despite tribes retaining inherent sovereignty to govern their own people

and territory where lands were reallocated under treaty or aboriginal property rights,

67 792 F.3d 1103, 1113 (9th Cir. 2015). 68 Indian Reorganization Act, 25 U.S.C. § 5129 (West). 69 Zepeda, 792 F.3d at 1116. Antelope reaffirmed the Mancari rationale by holding that prosecuting Indians based on their Indian status was not a violation of the Fifth Amendment because the MCA and similar federal laws govern a political status. 430 U.S. 641 (1977). 70 Zepeda, 792 F.3d at 1190. See also United States v. Cruz, 554 F.3d 840 (9th Cir. 2009) (Judge Kozinki dissented from holding that a non-tribal member who had received tribal government services 71 Indian Child Welfare Act. 25 U.S.C. §§ 1901–1963; Santa Clara Pueblo v. Martinez, 436 U.S. 49, 51 (1978) (explaining that the Indian Civil Rights Act had a “congressional purpose to protect tribal sovereignty from undue interference.”). 166

federal policing agencies exercise jurisdiction in Indian Country resulting from authority

delegated primarily under MCA and GCA. Delegated authority here operationalizes the

meaning of “Indian,” versus giving deference to Tribal Nations defining their own

citizenship as the basis.

The legal system bases time itself on artificially constructed discursive

mechanisms, crystallized in the written words of legislation and public policies that are

disconnected from the human intuition of duration, which functions to eliminate from

significance the self-determined identities of persons excluded from the mainstream legal

system. That is, difference is imposed by the fixed concept of “Indian,” while it

eliminates differences between the 574 federally recognized tribes 72 in the U.S., 231 of

which are located in Alaska. “Indian” does not even address the 500+ groups of Tribal

Nation peoples in the U.S. who are not federally recognized, nor does it recognize Native

Hawaiians who have occupied the Hawaiian islands as a sovereign monarchy since time

immemorial!73 In effect, this exclusion by virtue of its own hermeneutic, or worldview,

sets the parameters of the dominant U.S. legal system governing Tribal Nations. Thereby,

it already functions in terms of the framework of white supremacy effecting

disappearance of Native peoples.

Governed by the limitations of justice inherent in a white supremacist legal

system shaped by disappearance, the legal system always already considers time in

relationship to this artificially constructed “objective” framework, not in terms of human

living or self-determined identity. That is, the limitation of not inuring property rights

72Frequently Asked Questions: What is a federally recognized tribe?, U.S. Department of Interior, Bureau of Indian Affairs (Jun. 2, 2020, 6:28 AM), https://www.bia.gov/frequently-asked-questions. 73 See generally J. Kēhaulani Kauanui, Hawaiian Blood: Colonialism and the Politics of Sovereignty and Indigeneity (Duke UP, 2008). 167

equally to Native peoples persists but the legal system overtly denies structural inequality persisting despite the Civil Rights Act and other laws prohibiting disparate treatment on the basis of race. 74 In this respect, the legal system’s laws are operative to regulate behaviors of large populations.75 For example, passage of the Indian Civil Rights Act of

1968 served to further limit Tribal Nations’ sovereignty to exercise jurisdiction over its own citizens while also reaffirming the U.S.’s colonial power over Tribal Nations. 76 On the surface, it appears the U.S. legal system has “forgotten” the very basis of exclusion on which it operates by virtue of its contrived sense of time: all citizens have equal rights legally, so discrimination with regard to Native peoples does not persist into the present.

This act of making invisible persistent discrimination results in the “system that names itself falsely,”77 that is, an equivocating legal system. For a legal system relying on fixed concepts that “forget” the lived experiences of persons continually impacted on a de facto basis by structural racism and colonizing, genocidal logics, time as an objective measure fails to provide the conditions necessary for justice for all persons. A legal system where lived experiences of Native persons are excluded because of the operative tactic of

74 In 1879, Chief Standing Bear asked the 4th Circuit Federal District Court in Omaha to find him a person under the law, instead of treating him based on his race as an Indian; the court affirmed his personhood and the personhood of all Indians 75 years prior to Brown v. Board of Education, 347 United States 483 (1954). Mary Kathryn Nagle, Standing Bear v. Crook: The Case for Equality under Waaxe's Law, 45 Creighton L. Rev. 455, 456 (2011). 75 Foucault, supra note 53, at 77. Foucault explains the “non-sovereign power, which lies outside the form of sovereignty, is disciplinary power. It has been one of the great inventions of bourgeois society. It has been a fundamental instrument in the constitution of industrial capitalism and of the type of society that is its accompaniment.” Instead of explicitly exercising sovereign power over tribes, by passing the legal code of ICRA, the U.S. achieves the same effect while masquerading as ensuring certain rights to Indians in Indian Country. In reality, ICRA was a strategic dispossession of tribal sovereignty, without any authority independent of U.S. legal precedence to do so. 76 25 U.S.C. §§ 1301-1304. This legislation effectively provided all the rights enumerated in the bill of rights except for the establishment clause, the grand jury requirement, and quartering of troops. While ICRA requires indigent defense counsel be provided, the legislative scope does not include non-Indians in Indian Country. 77 Quote from the character, Honey in the 1986 film Born in Flames. 168

disappearance has made their lived experiences illegible and can never provide justice.

Time must be reconceptualized, which is what Sliver does.

B. Past and Present: Durational, Living Performances

Third wave feminists have recognized the power of fluid concepts to better

capture lived experience. The border crossers of third wave feminism deploy tactics that breath life back into Western epistemologies, which tend to reproduce what Paulo Freire named “necrophilic” tendencies. 78 The deployment of fixed concepts is the primary

apparatus at the heart of the U.S. legal system; legal concepts reaffirmed by case

precedence embed legal fictions through repeated practices of “history and tradition.”79

Many third wave feminists, such as Gloria Anzaldua, Audre Lorde, and bell hooks have

deployed fluid concepts and other literary devices to convey their own embodied

epistemologies.80 The performative storytelling in Sliver similarly utilizes temporal

imagery and metaphor to disrupt the necrophilic tendencies of legal conceptions of

“Indian” and “Indian Country.”

i. Time Immemorial: Doubling of past and present

Sliver is uniquely situated to disrupt the legal system’s conceptualization of time

as something fixed and static because of the ways in which it combines direct survivor

78 Paulo Freire, Pedagogy of the Oppressed 46 (Myra Bergman Ramos Tran., The Seabury Press 1973) (1968). 79 Kennedy warns in Obergefell v. Hodges that history and tradition alone should not be the determinative factor when it comes to fundamental rights, which leads SCOTUS to expand the definition of marriage to include same sex couples. “History and tradition guide and discipline this inquiry but do not set its outer boundaries.” Obergefell v. Hodges, 135 S. Ct. 2584, 2598 (2015). 80 bell hooks, Teaching to Transgress: Education as the Practice of Freedom (1994). Audre Lorde, Eye to Eye, Sister Outsider: Essays and Speeches (1984). Gloria Anzaldúa, Borderlands/ La Frontera: The New Mestiza (Aunt Lute Books 1999) (1987). 169

storytelling intermixed with the telling of the political process of the passage of VAWA

2013. The cast of professional actors, survivors, and community members recreates their

respective characters’ interactions between Tribal Nation leaders and politicians who

influenced or decided to vote on VAWA. As performed, the thread of the storyline

vacillates between the political processes occurring on capitol hill, mention of the legal

rulings previously dispossessing Tribal Nations of the sovereignty to prosecute non-

Indians, and survivors’ stories. By not mapping a linear trajectory of causally related

events, one happening causing another, Sliver disrupts the concept of time as an objective

mechanism shaping reality independent of persons’ lived experiences. The lived

experiences of survivor storytellers create a unifying thread in these performances.

ii. Present and Past Become One: “History becomes present and present becomes history.”81

One of the ways Sliver disrupts normative conceptions of time is through direct

survivor storytelling. While the script changes each time Sliver is performed, several of

the survivors have been included in nearly every reading: Diane Millich (Southern Ute),

Lisa Brunner (White Earth Ojibwe), Deborah Parker (Tulalip Tribes), and Billie Jo Rich

(Eastern Band of Cherokee). Whenever possible, these survivors have played themselves,

sharing their own stories during the performance. Each reading has also included the

stories of at least one Alaskan Native woman, including Nettie Narbelow (Athabaskan,

Village of Tetlin) and Lenora “Lynn” Hootch (Yupik Eskimo, Village of Emmonak). 82

81 Holly L. Derr, Manahatta's Gender Flip Equity in Action, 02 April 2018 (Jun. 4, 2020, 7:10 AM), https://hollyderr.com/2018/05/18/manahattas-gender-flip-equity-in-action/. Derr describes Nagle’s “trademark” throughout her plays as “every actor plays a role in each time, often transitioning without leaving the stage, so that history becomes the present and the present becomes history right before the audience’s eyes.” 54 Additional research is warranted to reveal why the Yale and Harvard readings were rewritten with new Alaskan Native women-survivors’ stories, but Deborah Parker’s story was read at both performances in her 170

When the thread of the play switches to survivors sharing a story, the audience’s attention

switches to focusing on the distant past that has not yet been made present because of the ways violence against Native women has been made invisible. Survivors’ testimonies disrupt linear time; the stories change each time they are told, making the performance alive and dynamic; the trace of the past covered over is brought into the present.

Recognition of this silencing is repeated throughout the play. According to survivor, Diane Millich, there was outright denial by politicians in D.C. that this violence exists.

Washington they said well this stuff never happens to Native women, especially domestic violence, sexual assault, child sexual assault, kind of really raw subjects that are taboo on native lands…to actually tell my story to a bunch of grumpy old white guys…and then for them to believe that this really happened…uh huh, really happens… 83

Millich attested to the lack of awareness in D.C. about the violence Native women have

experienced since arrival of Europeans in the Americas, which was why her sharing her

story was especially critical. This reaction to her story by D.C. politicians also

exemplifies the ways in which space shapes what is visible or deemed to exist. According

to geography scholar, Doreen Massey, spaces themselves construct gender by limiting

what can be said and by whom. 84 The fact that Millich shared her story publicly in the context of federal legislative bodies such as Congress is significant because these spaces remain primarily led by white males from elite families; by speaking in these spaces, she disrupted these traditionally patriarchal spaces in which she performed by sharing her

absence. 83 Diane Millich, “Sliver of a Full Moon - Diane Millich - KMHA Radio 91.3fm - MHA Nation,” 01:13 - 01:41 (Jun. 4, 2020, 7:16 AM) https://www.youtube.com/watch?v=-S1-stMisPw (emphasis added). 83 Diane Millich, “Sliver of a Full Moon - Diane Millich - KMHA Radio 91.3fm - MHA Nation,” 01:13 - 01:41 (Jun. 4, 2020, 7:16 AM) https://www.youtube.com/watch?v=-S1-stMisPw (emphasis added). 84 Doreen Massey, Space, Place, and Gender 179-181 (1994). 171

story. After VAWA 2013 passed, Millich became inspired to share her own personal story as part of the Sliver cast; she realized that doing so would educate law makers that violence against Native women actually occurs despite no records of prosecution existing, precisely because Tribal Nations lack jurisdiction to charge non-Indians. That is, sharing her story of survival made the trace of her past experiences come to life in the present, both for her and the law makers who heard her story.

In effect, Millich brings the trauma she survived into the present moment each time she shares her story during a play. She says,

I lose it…every time…I try hard but it’s like, you know, eventually it comes up, but it seems like it’s almost like you know how tears are kind of therapeutic and they kind of wash that pain away you know that…but it takes a couple of days you know to get rid of that trauma piece…. 85

Millich’s description of the experience of reliving the trauma she survived articulates how sharing her story brings the past, her lived experience previously made invisible by the legal system, to life again in the present. In this respect, the past becomes present, the present includes the past that was covered over and disappeared by the mechanisms of whiteness supremacy. Diane Millich’s storytelling, and the storytelling of all the Sliver survivors disrupts the constructed and artificial contrivances of time reproduced by these structures of disappearance, breathing life back into what was once made invisible, in part, by the legal concept of “Indian” and restricting Tribes’ jurisdiction over anyone

“non-Indian.”

By survivors sharing their stories during the Sliver performance, the past comes alive and disrupts the fixed, static legal conceptions of “Indian” and “Indian Country,”

85 Supra note 83, at 02:29 - 02:53. 172

where there is supposedly no domestic violence perpetrated by non-Indians. Survivors,

including Diane Millich and Deborah Parker, who shared their stories to Congress as part

of VAWA activist strategy, retell their stories during each Sliver reading. Storytelling

disallows Washington politicians to perpetuate the disappearance of violence against

Native women because the survivors telling their stories are real, bringing to life for

politicians and audience members the reality of human rights violations allowed because

of federal laws and policies.

iii. Disrupting the Fixed Concepts of “Indian” and “Indian Country”

When each survivor shares her story, the fixed concept, “Indian,” is disrupted by the retelling of first-person accounts of the violent events that changed these women’s lives forever. These women can no longer be conceived by lawmakers as some abstract caricature unaffected by federal policies; these women are real persons who have survived significant harm because of these policies. Similar to the ways in which CRT insists on the “reformulation of legal doctrine to reflect perspectives of those…victimized by racism,”86 these survivors disrupt notions of “Indian” in ways that reformulate legal

doctrine to reflect upon how limitations on the inherent sovereignty of Tribal Nations led

to their own stories of survival. These storytelling strategies serve both to breathe life into

how Native women’s identities are conceived beyond the confines of “Indian,” while also

urging the U.S. legal system to reformulate its own conceptions of “Indian.” In this way,

the disruption of fixed conceptions of Indian is a critical part of these Native women

86 Gloria Ladson-Billings & William F. Tate, Toward a Critical Race Theory of Education, 97.1 Teachers College Record, 47, 52 (1995). 173

activists’ tactics shaped by a critical sovereignty framework, an adaptation of CRT necessary to disrupt white supremacist tactics of disappearance.

Billie Jo Rich’s survival story during the Harvard performance is a powerful example of just such a strategy:

This is my story. And I’m here to share it. One sunny afternoon in May, I was returning my daughters to their father, per our agreement. I dropped them off and made sure he was home, and they were in the house before leaving, as usual.

But he walked out to stand beside my car. I stayed in the car with the door locked, but the car windows were down. [Low-volume humming begins by Native Actress]

He was agreeable enough at first. But then he became angry because I didn’t wish him a happy anniversary. I stated that it didn’t seem appropriate under the circumstances. He suddenly lunged in the car window and snatched my bag. He got an address book, flipped through it, and became angry.

He reached in and grabbed my car key from the ignition and walked away with the keys. And he was going to throw the keys. … So when I leaned down to get my keys, he kicked me, and I rolled down a little hill. At the time, my youngest daughter was standing beside my car. I didn’t even know she was outside. And I thought—I thought she was in the house. But when I rolled down the hill, I rolled …rolled into her, and she fell.

And he grabbed her. I was trying to comfort her, but he grabbed her hands, and he pulled so hard, that I was sliding across the ground, so I let go.

But he went immediately to the police station, and he got there before me. [Low- volume humming stops and scene switches to Rich’s husband and Tribal Police Officer, transporting the audience back to this moment]

-Can I help you? {Tribal Police Officer}

-I need to get a protective order. {Rich’s Husband}

-OK.

174

-Well, uh--

-Can you do that for me?

-We don't have jurisdiction over non-Natives.

-My wife’s enrolled, and she’s a danger to our children.

-Fill this out, and we’ll process it. [Scene switches back to Rich, bringing back to the present moment of storytelling.]

-It was so humiliating to be sitting at the police department with leaves and grass in my hair, dirt on my clothes, and my clothes were torn.

On my side, on my rib area, within the next day or two, a bruise formed shaped perfectly like his foot. [Scene switches back to Rich and Tribal Police Officer, again transporting the audience back in time.]

-There must be something you could do.

-He’s not enrolled. {Tribal Police Officer}

-He has my children.

-And a protective order against you.

So whatever you do, don’t go near him. [Scene switches back to Rich, bringing audience back to present moment.]

-He had my children, and all I had was a bruise shaped like his foot.

Maybe you’ve never heard a Native woman tell her story of survival before.

Maybe because you’ve seen movies like The Last of the Mohicans 87 or Peter Pan, you think at some point in time, we ceased to exist. But we're still here. Some of us live on reservations. Some of us live in suburbs. We even live in Washington, DC.88

87 It’s worth noting that the Yale reading referenced the movie, Dances with Wolves, instead of The Last of the Mohicans. See Mary Kathryn Nagle, Sliver of a Full Moon: A Play About Justice for Native Women Mar. 15, 2015, Yale Group for the Study of Native America (Jun. 4, 2020, 7:14 AM), https://www.radcliffe.harvard.edu/event/2015-sliver-full-moon-reading-discussion (23:00 – 23:02). 88 Mary Kathryn Nagle, Sliver of a Full Moon: Play Reading and Discussion Nov. 15, 2015, Radcliffe Institute for Advanced Study, Harvard University 19:55-23:17 (Jun. 4, 2020, 7:14 AM), https://www.radcliffe.harvard.edu/event/2015-sliver-full-moon-reading-discussion (emphasis added). 175

Rich’s storytelling highlights the direct impact of the U.S. government’s restrictions on

sovereignty when actors portraying her husband being granted a restraining order by the

tribe’s police despite his being the aggressor in perpetrating violence against her. This

scene is juxtaposed to her own request and denial of a restraining order against her

husband, who is a non-Indian. Rich’s story critically exposes how dispossession of

sovereignty condones and reproduces direct violence against her where her husband

cannot be prosecuted. She says, “There must be something you can do.”89 The police

reply, “He’s not enrolled.”90 This scene disrupts conceptions of “Indian” as a racialized

status because it makes clear that the police are powerless to hold Rich’s husband

accountable by virtue of his not being an enrolled member of the nation; that is, his lack

of tribal citizenship, not race, results in their lack of jurisdiction. By focusing on his

citizenship status, Rich’s story disrupts conceptions of Indian as “savage” and, instead,

reminds the audience that the Cherokee government has a sophisticated legal system and

frames her status in terms of citizenship. Doing so disrupts the kinds of disparaging

stereotypes reproduced in past media portrayals. Rich’s story powerfully reclaims

conceptions of being “Indian” through raising critical sovereignty awareness and

disrupting whiteness as disappearance.

Rich also demonstrates how she intends her story to revise stereotypical

portrayals of “redface” as well as the myth of the “disappearing Indian” in media when

she refers to the Last of the Mohicans and Peter Pan films.91 The former was based on

James Fennimore Cooper’s 1826 novel of the same name, which at the time was already

89 Supra note 88. 90 Supra note 88. 91 Patrick Wolfe, Settler Colonialism and the Elimination of the Native, 8:4 J. of Genocide Research, 387, 397 (2006). 176

perpetuating the myth of disappearance prior to the massive dispossession and relocation

of the allotment era. The author of Peter Pan most likely took some of his stereotypical

portrayals from Cooper himself, many of which eventually found their way into the 1953

Disney film that included the song and accompanying animation “What Makes the Red

Man Red.”92 Peter Pan exoticizes and caricaturizes Native peoples as fierce savages

speaking broken English that can only exist in a fictional place called Neverland. The

reproduction of Native peoples as savages is a tactic of disappearance that allows the

dominant culture to dehumanize persons depicted and proclaimed as “savages,” while

also justifying the genocidal policies perpetrated against them.93 Rich directly references

these mainstream media portrayals of “redface” and the “disappearing Indian” to

emphasize their fictional bases. 94 Rich disrupts fixed legal conceptions of “Indian”

through her performance. Both “Indian” and performance of “redface” reproduce

colonizing logics of disappearance. Nagle eloquently explains,

The performance of redface in the nineteenth century served as a necessary corollary to the development of the Supreme Court’s legal regime that defined us as ‘heathens’ and ‘savages’, as redface communicated the belief that Indians are not ‘real people’. Without this belief, genocide would not have been possible. 95

Rich corrects these false portrayals by her very presence on stage, by telling her story herself, and reminding the audience, “we are still here.” 96 Further, by her very presence

as a Cherokee woman on stage, portraying herself, it is undeniable that she is still here!

Later on during the Harvard performance, Rich’s storytelling about her ancestors

92 Sarah Laskow, The Racist History of Peter Pan’s Indian Tribe, Smithsonian Magazine (Apr. 14, 2020, 7:03 AM) https://www.smithsonianmag.com/arts-culture/racist-history-peter-pan-indian-tribe-180953500/. 93 See Mary Kathryn Nagle, Native Voices on the American Stage: A Constitutional Crisis, HowlRound Theater Commons (Jun. 4, 2020), https://howlround.com/native-voices-american-stage. 94 Supra note 88, at 23:00 – 23:09. 95 Supra note 93. 96 Supra note 88, at 23:09 – 23:11. 177

and homelands also disrupts tactics of disappearance by taking readers from the present moment to the time of her ancestors.

-I don’t understand. {LA Times Journalist}

{These passages end the scene in Washington D.C. where journalists from the Washington Post and LA Times are questioning survivors about why they are advocating for jurisdiction, about the violence they have experienced, what has happened, and why they don’t leave.}

-If the violence is so bad—{Washington Post Journalist}

-If you aren’t safe on your own reservation-- {LA Times Journalist}

-If he lives in your home-- {LA Times Journalist}

-Your home is dangerous-- {LA Times Journalist}

-Why don't you leave? {Both journalists ask in unison.}

-Wouldn’t the laws of the state protect you if you leave your reservation? {Washington Post Journalist}

-My great, great, great, great grandfather was “Wayagadoga” [Cherokee], or Standing Wolf. {End of scene with the journalists; Rich begins storytelling.}

During the time of the removal, the soldiers came to take him and his family and forced them [Low-volume humming begins by Native Actress] to walk the Trail of Tears.

At that time, a white man named George Hayes was living with Cherokees.

“Wayagadoga” [Cherokee] asked Hayes what he could do to avoid going West and be allowed to remain in his homeland. Hayes advised him to save up all his food rations, when he saw the opportunity, to break away and make his way back home. But to be caught escaping meant severe punishment, or even death.

One day, several weeks later, Hayes was out working in his yard, when he saw a small group of people approaching on the horizon. It was Standing Wolf, his wife, and several other Cherokees. His wife held a small newborn baby.

Hayes asked Standing Wolf what the baby’s name was. And Standing Wolf told him that this new son was named “Waya-ochenta” [Cherokee] or “Come Back Wolf,” because that was the only wish in their hearts, just to come back home. 178

This is why I and my grandparents before me came to be in the mountains of Western North Carolina. The Cherokee elders and wise ones say that we've always been there.

We always will be there. It’s believed that we were given our home there in those mountains by the Creator. Since it was given to us by the Creator, only He can take it from us.

So did I ever think of leaving Cherokee? -No, not once. -Never. -We are still here. -This is my home [UNISON]. 97

By sharing this story that both elaborates on her origins as a person as well as her ancestors’ origins, Rich corrects false representations about how easy it should be for

Native women to leave their reservations to flee from violence perpetrated by non-

Indians. Rich also corrects misconceptions of identity that conceive of her or her peoples without a strong cultural and spiritual connection to their homelands.

Her story gives new meaning to “Indian Country” as a homeland given by

Creator, not reserved by the U.S. government. Rich explains that her homelands were given to her ancestors by the Creator; this spiritual authority represents the only entity that has the power to take away their homelands. 98 In these terms, the prior attempts by the U.S. to dispossess Rich’s ancestors of their homeland were unauthorized abuses of power.

Rich also grounds her story shared in time immemorial where she and her ancestors have “always been there” with the expectation that “[w]e always will be there.” 99 By strategically highlighting these aspects of her ancestral and cultural ties to

97 Supra note 88, at 77:16 – 79:22 (emphasis added). 98 Supra note 88, at 79:07 – 79:12. 99 Supra note 88, at 78:57 – 79:02. 179

the land as a unique being, Rich disrupts whiteness supremacy in its attempts to

homogenize all “Indians” and “Indian Country” treating specific persons and lands as if

they are not uniquely identifiable. But Rich’s storytelling helps illuminate this category

error in the context of the performance to the two journalists. Other survivors use similar

strategies in Sliver to disrupt fixed conceptions of “Indian” and “Indian Country”

deployed by the U.S. government.

Nettie Narbelow (Athabasken, Village of Tetlin) is the first survivor in Sliver’s

sequence to share her story during the Harvard performance. After the play opens by

recounting the final vote in the U.S. House of Representatives that led to the final passage

of VAWA 2013, the first question raised by Nettie is, “Why were we left out”?100

Legally, the State of Alaska v. Native Village of Venetie case in 1998 held that there was

no Indian Country in Alaska because under the Alaskan Native Claims Settlement Act

(ANCSA) all lands held in trust for Alaskan Natives were transferred to Alaskan Native

corporations, which SCOTUS held were not “Indian Country” because the Village of

Venetie did not meet the definition of “dependent Indian communities.”101 The only

apparent “rational basis” for the SCOTUS to deny its fiduciary duty to federally

recognized tribes in Alaska merely because ANCSA had transferred their reservation

land to corporations was the significant financial liability warded off. Narbelow begins

her storytelling by asking,

-Why are we different?

When Violence Against Women's Act passed, I was watching TV, and I started to cry. The rates of violence against Native women in Alaska are higher than

100 Supra note 88. 101 522 U.S. 520 (1998); see also Alaska Native Claims Settlement Act, 43 U.S.C.A. §§ 1601 et seq.; 18 U.S.C. § 1151. 180

anywhere else in the United States. And yet, however, we're always forgotten. [Low-volume humming begins by Native Actress.]

Violence like this in our village did not always exist. There was a time before the United States, Alaska, a state, a time when our tribe, tribal government, had authority.

If a man mistreated a woman in our village, our tribal government would exercise its jurisdiction and protect our women.

But when the federal government made Alaska a state in 1959, they took away our lands, our culture, our language, our jurisdiction, and our safety.

Tribal sovereignty in Alaska is a dirty word. Most people want to pretend we don't exist. But the truth is we're still here.

We’ll always be here.

We will never leave.

Alaska, the state, has a bit of dual mentality. First it was the Russians and fur, then the Americans and gold. Now, it's the oil and the pipeline.

But my people, we have been here for thousands of years, from the time of the glacier until now.

We were here before the Russians. We were here when they came. … -We had Columbus. We had the Russians. Tell me how is that different? 102

Narbelow’s storytelling critically questions the fact that the sovereignty of Alaskan federally recognized tribes are treated differently than Tribal Nations located in the lower

48 states. She reminds the audience that Alaskan Tribal Nations exercised jurisdiction over persons perpetrating violence against Native women and that from the time when the Russians began colonizing Alaska, the objectification of women as something to be exchanged, started for the first time. This objectification and degradation of women is not part of traditional Alaskan ways of living. Narbelow also emphasizes that despite attempts to treat Native Alaskans as if they have disappeared, they persist. “We’ll always

102 Supra note 88, at 17:18 - 19:09 (emphasis added). 181

be here. We will never leave.” 103 Narbelow also emphasizes her ancestral way of

thinking about time as immemorial when she says, “we have been here for thousands of

years, from the time of the glacier until now.” 104 By reorienting the audience’s

conception of time in terms of the land, when the glacier was formed, she disrupts fixed

legal concepts. She also demonstrates her ancestors’ rights to occupy the land as first-in-

time, first-in-right aboriginal owners. Narbelow’s stories and those stories shared by

other survivors make the past that has been covered over alive again in the living present.

By making the past present again through storytelling, survivors disrupt time as a fixed

mechanism supporting forgetting of Tribal Nation sovereignty and reproducing white

supremacist tactics of disappearance.

IV. Spaces Disrupted: Performing for Different Audiences

From the time it was written in April 2013, Sliver performances occurred at

various venues around the country, beginning in Albuquerque, New Mexico at the

National Indigenous Women’s Resource Center’s Women are Sacred Conference.

Beginning the series of performances here likely represented a relatively non-patriarchal space because the conference itself honored the sacredness of Native women. Table 3 below summarizes all the known performances to date. Whenever possible, the survivors,

Diane Millich, Lisa Brunner, Deborah Parker, and Billie Joe Rich performed their own stories. However, the Alaskan Native survivors, Nettie Narbelow and Lenora “Lynn”

Hootch shared their stories at Harvard and Yale, respectively.

103 Supra note 88, at 18:21 - 18:26. 104 Supra note 88, at 18:36 - 18:42. 182

Table 3. Sliver Venues and Location Date Venue Location June 2013 National Indigenous Women’s Albuquerque, NM Resource Center Oct 2013 NCAI Annual Convention Tulsa, OK Mar 2014 UN Capitol Visitor Center Washington D.C. Sept 2014 UN World Conference on New York City, Indigenous Peoples; UN Church NY Center Sept 2014 Joe’s Pub at The Public Theater New York City, NY Mar 2015 Yale Law School New Haven, CT Nov 2015 Radcliffe Institute of Advanced Boston, MA? Study – Harvard University Jan 2016 Four Bears Lodge & Casino New Town, ND April 2016 Institute of American Indian Santa Fe, NM Arts April 2016 New York University New York City, NY May 2016 Stanford Law School San Francisco, CA June 2016 The Rasmuson Theater of the Washington, D.C. Smithsonian National Museum of the American Indian Oct 2016 Gallagher Theater - University Tucson, AZ of Arizona Oct 2016 David Salmon Tribal Hall Fairbanks, AK Nov 2016 The Yurok Tribal Office Klamath, CA

183

Where domestic violence on reservations in the U.S. has been a taboo subject,

survivors’ stories being shared is a transgressive act itself for most Native women. In a

livestream panel discussion with other playwrights and directors on Howlround.com,

“Decolonizing Systems/Our Theatre Ecology,” Nagle explained that while it is important to reach Tribal Nation communities, it is equally important to reach audiences that do not know the story exists. 105 She says,

...I try to do a balance of work within my home community and um, but, I think that it is such a blessing to be able to take the stories we are working on to communities that may not be familiar with them. There is sort of a different question of what does it mean to bring the story back home, to home, and what does it mean to bring it to people who have likely been taught the story does not exist. There is a whole different set of challenges for both, and a whole, two different sets of, I think, healing, and progress, and decolonization, that can take place when those stories are shared in two different communities.106

Nagle views the process of reaching both Native and non- Native communities as part of

the work of healing and decolonization. The role of the social construction of space and

its concurrent shaping of gender through patriarchal violence is recognized by geography

scholar, Doreen Massey. She explains how space and time are intertwined in critical

ways for meaning making as well as disruptive change. She says,

The construction of ‘home’ as a woman’s place has, moreover, carried through into those views of place itself as a source of stability, reliability and authenticity. Such views of place, which reverberate with nostalgia for something lost, are coded female. Home is where the heart is (if you happen to have the spatial mobility to have left) and where the woman (mother, lover-to-whom-you-will- one-day-return) is also.

…It is little wonder that Elizabeth Wilson’s analysis leads her to conclude that as, over time, women in big cities were less and less easy to contain in heterosexuality and in the domestic sphere (and here of course capitalism and

105 Mary Kathryn Nagle, et al., Decolonizing Systems: Our Theater Ecologies, Jun. 1, 2018, HowlRound Theater Commons, 1:29:52 – 1:30:38 (Jun. 5, 2020), https://howlround.com/happenings/decolonizing- systemsour-theatre-ecology (emphasis added). 106 Supra note 105. 184

patriarchy have had an uneasy relationship) metropolitan life itself seemed to throw up such a threat to patriarchal control (see ‘Politics and space/time’). In general terms what is clear is that spatial control, whether enforced through the power of convention or symbolism, or through the straightforward threat of violence, can be a fundamental element in the constitution of gender in its (highly varied) forms.

…Most simply perhaps, and as papers throughout this collection indicate, gender and the fact of spatial variation in gender relations are a significant component in an understanding of the organization and reorganization of the national economic space. 107

By sharing stories in the traditionally patriarchal spaces of law schools, Native women were restoring identities of Native women as fundamentally sovereign; these performances also disrupt the white supremacy of these spaces that historically have neither included Native peoples nor Native women. Reaching present and future lawmakers at highly ranked law schools potentially changes the hearts and minds of attorneys that will join the ranks of federal judges and the Supreme Court. 108 Sliver performances have reached audiences in both Indian Country and law schools, educating and changing hearts and minds of different audiences in distinct ways.

A. Disorienting Colonized Spaces of Disappearance

Based on oral histories of Native peoples, there is no known record of violence perpetrated against women and children before the colonization of the Americas by

European nations; this fact is evident where “words cannot be found within the languages of the first peoples of what is known to many as Turtle Island.” 109 No words exist for violence against women and children because it did not exist. Jacqueline Agtuca keenly explains that “[d]espite the many differences amongst Native peoples, the link binding all

107 Doreen Massey, Space, Place, and Gender 179-181 (1994). 108 Supra note 16. 109 Supra note 1, at 14. 185

indigenous peoples of the United States is that of spirituality and respect.” 110 The long-

held European tradition of holding that a woman was the property of her father or

husband stood in stark contrast to the traditions of Native peoples in the Americas.

European “cultures could not succeed in establishing their dominance in this country

without changing the status of tribal women from their honored role to one of

possession.”111 Therefore, colonization in the U.S. required not only waging war on

Tribal Nations, but also dehumanizing women and treating them as objects to be

possessed: the colonization of Native women. 112

This subordination of Native women represents yet another manifestation of the white supremacist genocidal patriarchy. That is, white men primarily possessed the right to own property, the basis upon which the U.S. was founded; the correlate of this exclusion of people of color is objectification and subjugation of persons of color, treating them as tools to support the gain of property with whites possessing the privilege.

This objectification was most apparent with the enslavement of African Americans, but also is at play with violence and sexual violence inflicted upon Native women. The framework of white supremacy operative as disappearance necessitates the dehumanization of peoples treated as “savage” others in order to justify the horrors committed against them while carrying out the U.S. government’s policy of colonization

110 Supra note 1, at 14. 111 Supra note 1, at 14. 112 Sarah Deer both explains how rape is both a tactic of colonization and analogizes the tactics of sexual predators with the tactics of colonizers: deceit, manipulation, humiliation, and physical force. Anglo common law considered women the property of their fathers or husbands, which was not a value of any Tribal Nation cultures; colonization required subordination and objectification of Native women as property. See Sarah Deer, Beginning and End of Rape: Confronting Sexual Violence in Native America, xix-xx, 17, 114 (2015). 186

and dispossession of lands coined as “Manifest Destiny.”113 The land grab of “manifest

destiny” even necessitated the destruction of the honored place women held as sacred

members of Tribal Nation societies. Dominating Tribal Nations of the U.S. meant

subordinating and dehumanizing Native women. However, there is a long history of rape

and forced assimilation as an extension of the violence of dividing and conquering Tribal

Nations since the advent of colonization of the U.S. began in the 1630’s.

Some Sliver scenes aim to assist in the remembering of this shift in the treatment

of women that occurred by Tribal Nations themselves as a result of colonization by

Europeans. By re-enacting the scene of a Russian trader leveraging the rape of a Native

Alaskan, Sliver reminds audiences of Native peoples about this shift from women being

honored and treated as sacred beings to treatment as possessions. Nettie Narbelow shares

the story:

-We were here when they came.

-Our men gave them fur.

-And in exchange, gave us the alcohol.

-And then they took our women.

-This one.

-We had no choice.

-Just one night. {Lisa Brunner holds up two hands signaling the Russian to stop.}

-I’ll bring her back. 114

113 The SCOTUS decision, Johnson v. McIntosh, reproduced embodiment of medieval Crusades ideology of conquering “infidels, heathens, savages” in its reliance on the Doctrine of Discovery as its primary rationale for determining the aboriginal property rights of the Illinois and Piankeshaw nations. 21 U.S. (8 Wheat.) 543 (1823). See also Johnson & Graham’s Lessee v. McIntosh, Justia (Mar. 29, 2019), https://supreme.justia.com/cases/federal/us/21/543/#tab-opinion-1922743. 114 Supra note 88, at 18:49 – 19:02 (emphasis added). 187

This scene depicts a moment of contact and trade with Europeans that altered the ways

women had previously been honored by their tribes: shifting viewing women as sacred to

viewing women as objects to be possessed, used, and thrown away. This scene is

contrasted with the modern-day lawlessness that leaves perpetrators of violence against

Alaskan Native women unpunished. Narbelow describes the impact on Alaskan Native

women who are served by the state’s only shelter for Native women:

We’d find them hiding in smoke houses and steam houses.

They’d tell our tribe, we don’t have jurisdiction, that we don’t exercise any kind of authority. When we call the state troopers for help, it takes two or three days for them to arrive and to respond.

Our villages are so remote where I live in Tetlin, there is no road, so the only way to come and go is by airplane. For three decades, this shelter has been the only place our women can go. 115

In rural Alaska, like so many Tribal Nations in rural areas of the lower 48, by the time

state or federal law enforcement arrive, critical evidence has disappeared. This significant

gap in response-ability results in charges being dropped, perpetrators of violence going

free, and repeated harm to the same survivors. 116 The only effective solution to ensuring due process of the law is to restore tribes’ jurisdiction over all crimes occurring in their territory, including recognizing Alaskan Native-owned lands as Indian Country. The failure to prosecute perpetrators who harm Native women is arguably a violation of rights

115 Supra note 88, 29:09 - 29:46 (emphasis added). 116 The Maze Report framed the issue of the high rates of violence against Native women as an international human rights issue, drawing upon the U.S.’s obligations to protect human rights under its ratification of key treaties, including the International Covenant on Civil and Political Rights (ICCPR); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the International Convention on the Elimination of All Forms of Racial Discrimination (CERD Convention). Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the U.S., Amnesty International April 2007 (Jun. 5, 2020), https://www.amnestyusa.org/reports/maze-of-injustice/. See also Chapter Four. 188

to due process and life under international human rights law. Narbelow’s storytelling

highlights the harms resulting from the failure to restore jurisdiction to Alaskan Native

Tribal Nations, which educates legal audiences about sovereignty. Here, strategic

storytelling keenly serves to build critical sovereignty consciousness by reminding

audiences of the intertwining of violence against Native women and colonization of

Tribal Nations, especially for Tribal Nation audiences.

Aspects of the Sliver performance that help Tribal Nation communities remember

cultural traditions prior to colonization, including respect for women and exercising

sovereignty over all perpetrators of crime on Tribal Nations’ lands embody logos appeals

that hold a unique value for audiences comprised primarily of Native peoples attending

and participating in the play. While remembering this cultural shift in attitudes towards

women is integral to educating both Tribal Nations and future lawyers, Sliver

intentionally sought to influence future lawyers through its law school performances.

written to connect with an audience versed in U.S. mainstream legal culture.

B. Illuminating Legal System Injustices for Top Law Schools

Sliver has been performed at a number of law schools around the country. By

educating future lawyers about the structural tactics of disappearance embodied in

genocidal Indian law and policy, consciousness raising may occur for lawyers who will

become judges in the federal courts and/ or Supreme Court. This possibility is especially

true for students at the top three law schools, where these schools train the majority of

federal and SCOTUS clerks and judges. 117 According to U.S. News & World Report,

117 Robert Morse, Grads of These Law Schools Get the Most Judicial Clerkships, Mar. 29, 2020, U.S. News (Jun. 12, 2014, 9:30 AM), https://www.usnews.com/education/blogs/college-rankings- blog/2014/06/12/grads-of-these-law-schools-get-the-most-judicial-clerkships. 189

Yale Law School had the largest number of 2012 graduates who clerked for federal

judges; Stanford and Harvard were not far behind. 118 Since 1992 Yale, Harvard, and

Stanford have been ranked as the top three law schools. Attending these prestigious

schools guarantees most graduates a coveted federal clerkship. 119 After clerking, these

attorneys are highly sought after by top law firms paying lucrative salaries. Because of

the recurring pipeline of federal clerks and judges from these three law schools,

attending 120 one of these three schools has been proven to all but guarantee future

political power in the form of connections made, future opportunities to be a federal

judge, and the privilege that high paying salaries and this elite status afford including

networking opportunities with other affluent lawyers. If students at these law schools

could be persuaded to bring more justice to Indian Country, such an orientation could be

a “game changer” in future legal decisions.

In Theatre of the Oppressed, Augusto Boal explains how performance can serve

as a popular education tool for transforming mainstream popular conceptions through

critical consciousness raising.121 Whereas Writer points out that genocidal policies

require complicity among the public, conversely, social transformation can occur when

the public opposes existing policies including through performance art. 122 Yale Law

118 Supra note 117. 119 Tobi Young was the first Native American SCOTUS clerk, working for Judge Neil Gorsuch. See Tony Mauro, Tobi Young, First Native American SCOTUS Clerk, Recounts Year With Gorsuch, May 15, 2020, Law.com (Oct. 4, 2020 8:51 PM), https://www.law.com/nationallawjournal/2020/05/15/tobi-young-first- native-american-scotus-clerk-recounts-year-with-gorsuch/?slreturn=20200904233929. 120 Worth noting is that Harvard Law does not give grades, which is the primary way that students at all law schools compete for these highly sought-after positions. 121 Supra note 2, at 93. Boal explains how empathy is a critical process for changing hearts and minds. “The spectator – a real,living person – accepts as life and reality what is presented to him in the work of art as art. Aesthetic osmosis.” The audience internalizes the experiences of the characters, unconsciously empathizing with them. 122 Supra note 16. 190

School, Harvard Radcliffe Institute, and Stanford Law School each hosted readings of

Sliver throughout 2015 and 2016. 123 These sites of performance hold powerful potential

for impacting future court decisions. The first of these performances was held at Yale in

March 2015. 124

i. Yale

When Yale Law School hosted a performance of Sliver, it created an opportunity for future federal and SCOTUS clerks and judges to learn about the dispossession of

Tribal Nation sovereignty and the related injustices of perpetrators of violence against

Native women going unpunished. Despite being far from most reservations, Yale “lies at the heart of legal education for a system which has allowed abuse to flourish.”125 The

reading of Sliver at Yale was the first performance at a top-three law school. The Native

American Law Student Association Chair, Katie Jones (Cherokee), introduced Judge

William A. Fletcher of the Ninth Circuit Court of Appeals to provide introductory

remarks prior to the reading. As Ninth Circuit federal appeals court judge, he has

significant influence over cases arising in Indian Country where a large number of Tribal

Nations are located. When introducing him, Jones explained how Judge Fletcher

graduated from Yale in 1975, clerked for William Brennan on the SCOTUS, and was

nominated by President Clinton to the Ninth Circuit in 1998. As a Yale Law graduate and

current Ninth Circuit judge, Judge Fletcher is a classic example of the potential critical-

consciousness-raising power that resides in performing at a law school like Yale, a power

123 This section focuses on the Yale and Harvard performances, both of which were available as YouTube videos. 124 Supra note 16. 125 Supra note 16. 191

that the Native women involved in writing, rewriting, and performing Sliver understood.

That is, Judge Fletcher embodies the kind of potential to change the legal system held by current Yale Law students attending the performance, the primary audience that this

Indigenous Feminist Pedagogy intended to reach.

After the Yale performance, the cast members held a panel discussion for answering audience questions. One of the audience members who self-identified as

Jordan Bryant, a second-year law student, an African-American with Cherokee “blood,” and a Black Lives Matter advocate, asked the cast why the inequality was not framed in terms of race and instead asserted Native women were targeted for their sovereignty.

Bryant asked,

…as someone who definitely has Cherokee blood, I mean, as a lot of people from the South do, I kind of wondered, I mean, not that I questioned this sentiment at all, but there was this line in the play that really stuck with me that said: “we are not targeted because of the color of our skin, we are targeted because of our sovereignty.” And while, I think that may be true, I think it may be a bit of, uh, it struck a slightly dissonant cord in the sense that racism is clearly a large part also of why Native women are targeted. So I just wanted to hear, I guess, what you guys thought about the role that that plays and also how you see African- American-Native-American collaboration because that’s, I mean, we are fighting for a lot of the same things in terms of protection under the law and being able to be safe, being able not be killed, raped, and murdered without impunity.126

This question was extremely relevant to the intended advocacy and pedagogy performed in Sliver, a form of pedagogy informed by what appears to take shape as centered around a critical awareness of inherent sovereignty of Tribal Nations and Native women. This question by Bryant touches upon the exact difference between a critical sovereignty approach, versus a critical race theory approach in feminist pedagogies. Additionally, it illuminates the blind spot of legal education in top law schools that do not offer a

126 See supra note 88, at 2:07:54 – 2:09:14 (emphasis added). 192

concentration in Native peoples law because it becomes fairly apparent that Bryant is not

familiar with the holding of Morton v. Mancari or the repeated dispossession of tribal property and sovereignty by federal courts in the history of the U.S. 127

Terry Henry responds to Bryant by acknowledging there are “racial undertones” to everything that has happened throughout U.S. history to Native peoples. She also explains that Indian status is unique because of Tribes Nations’ relationships with the federal government and the concurrent exception throughout history to every other normative law in the U.S. Henry explains “if there was land to be taken, if there were resources to be taken, oh, well that is an exception and have to apply that to the tribes because we are going to take that from them…“128 Henry makes it clear that the histories

of dispossession in the U.S. shaped the relationship with Tribal Nations and Native

women.

Henry then asks Lisa Brunner to explain why she chose to speak the line in the

play to which Bryant referred: “we are not targeted because of the color of our skin, we

are targeted because of our sovereignty.” 129 Brunner further explains that the forcible

sterilization of Native women was the modern attempt to eliminate tribal sovereignty.

If you look at the history of federal policies, they included genocide. They specifically targeted Indian women because we are the women who give birth to our nations. It is through us, as our lineal descent, that we give birth to our future

127 Morton v. Mancari distinguished that hiring preference for Indians in the Bureau of Indian Affairs was a preference based on a unique political status, members of federally recognized tribes. Tribes’ inherent sovereignty relies upon both political and cultural sovereignty and should be disentangled from outmoded references to race by way of blood quantum to qualify as “Indian.” 417 U.S. 535 (1974) (holding U.S. fiduciary duty in relation to Indians is unique and requires a special duty given the prior U.S. policy of dispossession and genocide). Also worth noting is that more recently in McGirt, it’s apparent that several justices, including Justices Breyer and Kavanaugh, persist in their misunderstanding Indian status as a racialized designation instead of a political status. McGirt v. Oklahoma Oral Argument, May 11, 2020, Oyez.com (Oct. 11, 2020 5:36 PM), https://www.oyez.org/cases/2019/18-9526. McGirt v. Oklahoma, 591 U.S. ___ (2020). 128 Supra note 88, at 2:10:09 - 2:10:39. 129 Supra note 126. 193

generations. And part of the genocidal practices w[ere] they, the Indian Health Services, forcibly sterilized Indian women. …everything meets the international definition of what genocide is. 130

Bryant interrupts what Brunner shares, so Mary Kathryn Nagle then offers a response, which prompts Bryant to interrupt a second time; however, the transcript is inaudible at this point. What is audible is Nagle’s message that “One of the biggest allies in the movement was Gwen Moore and the Black caucus, I mean, …she was right there the whole time.”131 However, the Sliver reading at Yale preceding this discussion had recognized Moore’s work in one of the scenes reenacting political lobbying in D.C.

So we need to figure out the schedule for this week.

-Juana is setting up a meeting with the Black Caucus.

-Thank God for Gwen Moore. 132

These lines emphasize the collaboration with the Black caucus as key partners in advocating for the passage of VAWA 2013.

While the Sliver readings performed at Yale and Harvard are very similar, a few key revisions were made prior to the performance at Harvard. As Terry Henry noted at the post-performance discussion at Yale, “I have probably watched this about five times and it changes each time you watch it, there is something different in it.”133

ii. Harvard

The Sliver performance at Harvard was held at the Radcliffe Institute for

Advanced Study on November 19, 2015. This performance was not significantly different

130 Supra note 88, at 2:12:36. 131 Supra note 88, at 2:14:06 – 2:14:19. 132 Supra note 88, at 1:27:35 - 40. 133 Supra note 88, at 2:05:34 - 2:05:40. 194

than the Yale performance; however, Lenora “Lynn” Hootch was unable to perform, so

Nettie Narbelow shared her stories as an Alaskan Native woman. Additionally, Diane

Millich was unable to perform at Harvard; however, rather than revise her storytelling,

Nagle read Millich’s stories. 134 While the Harvard performance was not held at the law

school itself, it was supported by the Harvard University Native American Program

(HUNAP) and the Harvard Native Law Student Association. 135 Visiting Harvard Law

Professor, Angela Riley (Oneida Indian Nation) attended and spoke on the post-

performance panel. Also on the panel was Maggie McKinley (Fond du Lac band of

Minnesota Ojibwe), the Climenko fellow and lecturer at Harvard Law School. Mary

Kathryn Nagle joined this panel of highly accomplished Native women, lawyer-activists for this post-performance discussion of critical sovereignty issues.

During this discussion, Nagle recognizes that she came to the VAWA movement

as an outsider and discovered the power of the women leading the movement and moving

the dial through storytelling:

-… I would just say, in reflecting on this play and the political process, is that I was not-- as a playwright coming in, I was a little bit coming in from the outside. I was not a leader in the movement itself. And actually, at the very last minute when they were really struggling to get through the House, I think lot of leaders in the movement realized the power of the stories, and how the women who were coming forward as survivors to tell their stories in Congressional hearings in the press and in the media was actually moving the dial. And that, actually, I think a lot of people in the movement across the board, not just tribal leaders and Native women, would agree and would tell you that VAWA got reauthorized in 2013 because Native women stood up and spoke.

And I think that's what makes this play powerful. That's what made the political process powerful. And I think it's a huge testament to the fact that I think the

134 Future research should seek additional understanding as to why some survivors’ stories were read, versus replace with the performance of alternative survivors sharing their own stories. However, Nagle’s comments after the Harvard reading offer some insight as to the power of particular stories as they pertain to the passing of VAWA 2013. See infra note 136. 135 This program is directed by Shelley Lowe of the Navajo Nation. 195

biggest victory we've had legally for Indian nations in the history of the United States came from a movement that was created and propelled forward by Native women who told their stories. And I think that really says a lot. 136

In addition to the ways in which the performance at Harvard itself disrupted fixed

conceptions of “Indian” and “Indian Country,” this post-performance discussion highlighted the genius and power of Native women leaders in the movement to end violence against Native women and raise critical awareness about Tribal Nation sovereignty.

V. Critical Consciousness Raising for Reformulating Law

Sliver demonstrates an Indigenous Feminist Pedagogy both in its performance as well as the individual performances of survivors within the performance; this pedagogy is uniquely effective for raising critical consciousness about white supremacist tactics of disappearance throughout U.S. history and persisting today. The last of three SCOTUS cases addressing sovereignty in 1978, Santa Clara Pueblo v. Martinez gave rise to many

Native women explicitly asserting they would support “tribal and indigenous solutions, rather than federal solutions” to the problem of sex discrimination.137 This same year,

Native women began mobilizing to combat violence against Native women. This Native

women activism centers sovereignty along with women’s rights because sovereignty of

Tribal Nations is tied to the restoration of treating Native women as sacred. Sliver

136 Supra note 88, at 109:27 - 111:11 (emphasis added). 137 In Santa Clara Pueblo, the female tribal member sought injunctive and declaratory relief for the disparate treatment she received under the gender-biased tribal code; however, the Court was unwilling to diminish tribal sovereignty by ruling on the substantive merits of the case and held it lacked subject matter jurisdiction for non-habeus corpus relief. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) (holding that the Indian Civil Rights Act 25 U.S.C. § 1302 does not create a federal cause of action for declaratory and injunctive relief where tribal citizenship criteria was gender biased). David H. Getches et al., Cases and Materials on Federal Indian Law 444 (7th Ed., American Casebook Series 1979) (2017). 196

demonstrates Indigenous Feminist Pedagogy, raising awareness of the fundamental

framework needed to continue to both restore Tribal Nations’ inherent sovereignty as

well as to restore the treatment of women as sacred beings. Amnesty International’s

report, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual

Violence in the USA (Maze Report) deployed similar strategies embodying Indigenous

Feminist Pedagogy, which the next chapter explores. 138

138 Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in Indian Country 66 (2007). 197

Chapter Four Amnesty International’s Maze of Injustice Report: Popular Education Reporting for Critical Sovereignty Consciousness

“National numbers are flat; they lack dimension and stifle future exploration. For Native women, surviving rape is a journey with texture and dimensions that are shaped by history, language, and ceremony.” ~Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America1

I. Introduction

Amnesty International’s Maze of Injustice: The Failure to Protect Indigenous

Women from Sexual Violence in the USA Report (Maze Report) 2 succeeded in persuading

the U.S. Congress to protect Native women where the Supreme Court of the United

States (SCOTUS) and other legal system processes had failed to provide justice for

Native women. Its broadly accessible characterization of Indian Country injustices provided justice through a process of Indigenous Feminist Pedagogy instead of substantive law. Indigenous feminist lawyer and scholar, Sarah Deer (Muscogee [Creek]

Nation of Oklahoma) primarily researched and wrote it while she worked for the Tribal

Law and Policy Institute in St. Paul, Minnesota.3 While no attribution is made to Deer in

the report itself, Deer held a lead consultatory role in researching, interviewing

participants, and writing the document. 4 Arguably as the official author, Amnesty

1 Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America 15 (2015). 2 Amnesty International, Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA (New York: Amnesty International, 2007), https://www.amnestyusa.org/pdfs/mazeofinjustice.pdf. 3 Supra note 1, at 100. 4 MacArthur Fellows Program, Sarah Deer, Legal Scholar and Advocate Class of 2014 1:27 – 2:11, MacArthur Foundation (Nov. 1, 2020 3:17 PM), https://www.macfound.org/fellows/912/. 198

International uses an objective voice to establish credibility towards the legal issues; for

some audiences, Amnesty International possesses more persuasive ethos power than a

document authored by a single Indian country “insider” would be because of their well-

established moral authority. The international media attention resulting from the Maze

Report was instrumental in passage of both the Tribal Law and Order Act of 2010

(TLOA) and Violence Against Women Act tribal provisions (VAWA 2013) by increasing public awareness about the human rights violations against Native women. 5

This report embodies a kind of Indigenous Feminist Pedagogy 6 deployed by Native

women activists to educate the public and congressional decision makers in a way that

raises critical consciousness about the harms perpetrated against Native women as raced,

gendered, and sovereign persons. One of its express purposes was to “ensure that the

report is as accessible as possible to diverse audiences both within the USA and around

the world.”7 It clearly achieved this purpose in that the Maze Report circulated nationally

and internationally, broadly reaching legal and lay audiences to raise critical awareness

about the need for legal changes including the restoration of Tribal Nation sovereignty to

prosecute non-Indians. It was more rhetorically effective than similarly intended texts

circulating at the time because of the pedagogical and persuasive strategies it deployed.

The Maze Report framed the issue of the high rates of violence against Native

women as an international human rights issue, drawing upon the U.S.’s obligations to

protect human rights under its ratification of key treaties, including the International

5 See supra note 4, at 1:27 – 2:11. Violence Against Women Reauthorization Act of 2013 (Pub. L. 113-4, 127 Stat. 54). Tribal Law and Order Act of 2010 (Pub. L. 111-211, 124 Stat. 2258). 6 This analysis focuses on the text itself as a piece of activism, as opposed to the intentions or actions of any author. While the other scholarly projects and works of Sarah Deer also clearly embody an awareness of critical sovereignty activism, this textual analysis intends to differentiate the author from the text as a living form of activism that circulated in critical legal-decision-making communities. 7 Supra note 2, iii.

199

Covenant on Civil and Political Rights (ICCPR); the Convention against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT); and the

International Convention on the Elimination of All Forms of Racial Discrimination

(CERD Convention). 8 This orientation was necessary in light of the failings to protect the

rights of Native women under U.S. law, including cases reviewed by SCOTUS.9

Most relevant of these SCOTUS cases in the sequence of public events

highlighting harms perpetrated against Native women was Castle Rock v. Gonzales,

which held that the mother had no legal right against the police who failed to enforce the

protection order against her husband after he violated the order and, then, abducted and

murdered their three children. 10 Whereas procedural due process rights are protected both

under U.S. and international law, SCOTUS failed to protect these rights in Gonzales by

declaring no affirmative duty existed for the state to enforce protection orders, despite

8 Supra note 2, at 19. 9 Jennifer Hendry and Melissa Tatum explain how effective strategies for changing the legal system must consider the context of law and policy. “The ultimate success or failure of the undertaking depends on maintaining flexibility as to the method adopted. If it is possible to frame the issue in the language of rights, then this is the most promising approach; if such reframing is not possible, however, then it is best to look for a solution beyond the rights-based approach and outside formal adversarial processes.” Jennifer Hendry and Melissa Tatum, Human Rights, Indigenous Peoples, and the Pursuit of Justice, 34:2 Yale L. & Pol. R. 351, 381-85 (2016). 10 545 U.S. 748 (2005). See Table 4, 204. Table 4 summarizes some of the key texts circulating around the time of the Maze Report to provide an overview of the textual happenings around the time of its publication.

200

state law recognizing it as a property interest. 11 After the SCOTUS decision, Jessica 12 brought her case before the Inter-American Commission on Human Rights (IACHR or

Commission); she was the first domestic violence survivor to ever bring a case against the U.S. Prior to the Maze Report, the U.S. government had long established it was unwilling to enforce the civil rights of Native women by protecting them from the harms of domestic violence and sexual assault by non-Indians. Maze Report’s logos appeals to the authority of international human rights, international treaty bodies, as well as the use of primarily U.S. government statistics were rhetorical strategies that proved to be timely and highly persuasive for broad audiences, including U.S. congresspersons and international news media.

The Maze Report is a unique artifact of Indigenous Feminist Pedagogy in that it frames the injustice of violence against Native women not only in terms of Tribal Nation jurisdiction, but also in terms of how colonization persists in the U.S. The federal government’s processes have refused to protect Native women. The Maze Report had the effect of drawing new international media attention to this issue through “shaming” the

U.S. government into acting to change its unjust practices on the heels of repeatedly

11 Id. Erwin Chemerinsky explains that in Gonzales, the police had no duty to protect Jessica’s daughters from their father based on the prevailing rule in DeShaney v. Winnebago County Department of Social Services, which held that the government could not be liable for substantive due process violations by private actors; however, according to Deshaney, the government would be liable for violations of procedural due process where a fundamental right exists. The Tenth Circuit court of appeals found that Gonzales had a property interest in her protection order of which she was deprived when Castlerock police failed to enforce it; Judge Seymour explained that by virtue of writing the protection order enforcement statute in mandatory terms, the state had created a property interest. See Erwin Chemerinsky, The State- Created Danger Doctrine, 23 Touro L. Rev. 1, 2, 5, 6 (2007). Gonzales v. City of Castle Rock, 366 F.3d 1093, 1099-1100 (10th Cir. 2004) (en banc) (noting the claim falls outside the bounds set by DeShaney and establishing review of the procedural due process claims, rather than the substantive claims). DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). 12 I intentionally refer to Ms. Lenahan by her first name, “Jessica,” throughout this chapter to aid with clarity because Jessica Gonzales changed her name to Jessica Lenahan after filing her civil rights case in the U.S.

201

refusing to recognize its affirmative duties under the American Declaration of Rights and

Duties of Man. 13 Thomas Scheff explains how the emotion of shame must be understood in order to better explain social systems; shame remains taboo, which means that it is

“’significant for the social order’” and “’belong[s] to the general system of social control’”. 14 Shame differs from other emotions because it

1. is a key component of conscience, the moral sense: it signals moral transgression even without thoughts or words[…]. 2. arises in elemental situations of threat to a bond; it signals trouble in a relationship. 3. plays a central role in regulating the expression, and indeed, the awareness of all of our other emotions.15

This broad conception of shame as the key emotion underlying human relational and social systems offers clarity to the why using strategies to evoke shame are particularly powerful in the area of international human rights. Alexandre Lefebvre explains the role of emotion in protecting international human rights when he explains that “if we fail to see the biological source of morality—that is, if we fail to see that social morality is constitutively closed morality—human rights do in fact become what certain critics have

13 Supra note 9, at 381. For a discussion of “shaming,” see also Kenneth Roth, Economic and Social Rights, in International Human Rights: Text and Materials, 295 (Phillip Alston & Ryan Goodman eds., 2013). Ronagh McQuigg explains how SCOTUS’s treatment of the Gonzales case and its “reluctance to place positive duties on the state to protect individuals from the criminal acts of others is symptomatic of wider failure on the part of the United States to comply with its positive obligations under international human rights law,” namely the International Covenant for Civil and Political Rights of 1966. It’s worth explicitly stating that because of global, economic and political power, it is rare that the U.S. finds compelling reasons to comply with international human rights obligations when it is counter to its national and international interests. The case establishing the U.S. has no affirmative duty to protect is DeShaney v. Winnebago County Department of Social Services, which held that Winnebago County Social Services Department did not violate a child’s rights under the Due Process Clause by failing to protect him from violence and intervening to stop abuse known to be occurring by his father. Domestic Violence and the Inter-American Commission on Human Rights: Jessica Lenahan (Gonzales) v United States, 12 Hum. Rt. L. Rev. 131-133 (2012). 14 Thomas J. Scheff, Shame in Self and Society, 26.2 Symbolic Interaction 239, 239-40 (2003) (quoting Encyclopedia Britannica Online). 15 Supra note 15, at 254.

202

always suspected them to be: rationalistic and moralist.”16 Through his interpretation of

Bergson, Lefebvre illuminates the connection between a morality rooted in emotion as a foundation for the creation of an open society, an idea upon which John Humphrey based his drafting of the Universal Declaration of Human Rights.17 Through this lens, the

power of shaming comes into sharper focus.

Directly examining the strategies of Amnesty International (AI), Stephen

Hopgood specifically addresses how AI harnesses the power of shaming in his book,

Keepers of the Flame. 18 He offers the example of AI calling the U.S. detainment of

alleged terrorists in Guantanamo Bay prisons without due process a “gulag,” recognizing

that “[i]t is a sign of Amnesty’s moral authority that it can name and shame in this

way.” 19 By virtue of AI’s long history of identifying and naming human rights violations,

it has built a strong ethos appeal for its rhetorical arguments by virtue of its persistent

accuracy and moral motivations as an organization over time.

16 Bergson and Human Rights, in Bergson, Politics, and Religion 193, 201 (2012). Lefebvre explains that Bergson is writing in response to Emile Durkheim’s strictly social view of morality that fails to account for the role of emotion. Id., at 198-199. “In a nutshell, Bergson’s argument is that emotion and not reason primarily motivates conduct.” Id. at 208. Bergson directly influenced John Humphrey’s drafting of the Universal Declaration of Human Rights (Declaration) through his book, The Two Sources of Morality and Religion. Id., at 194. 17 Through reliance on Bergson’s theory of open societies for the Declaration, Humphrey also adopted Bergson’s metaphysical theory of the élan vital, which one can have an intuition about as part of the lived experience of duration. Supra note 16. 18 Hopgood, Stephen. Keepers of the Flame: Understanding Amnesty International, Cornell University Press, 2013. 19 Supra note 18, at 204.

203

Table 4. Sequence of Highly Publicized Human Rights Events Impacting Native Women

Date Event Impacting Native Women June 22, 1999 Simon Gonzales breaks protection order and murders Jessica Gonzales’s three daughters. Mandatory language on back of protection order itself required police to enforce its terms. Oct. 15, 2002 U.S. 10th Circuit Court of Appeals holds in part Jessica’s procedural due process rights violated under Section 1983 claim. Opinion published made clear violation of Jessica’s due process property interest in protection order violated. June 27, 2005 SCOTUS denies any substantive due process right exists for Jessica to have police enforce protection order under Section 1983 claim. Published opinion mentions neither race nor Native status. Dec. 23, 2005 Jessica files petition with IACHR, asserting Castlerock Police actions and SCOTUS decision violated her rights. Petition published. Mar. 2, 2007 IACHR agrees to hear Jessica’s case, Jessica Gonzales v. U.S. Jessica delivers her statement to IACHR Oct. 22, 2008.20 Apr. 2007 Amnesty International publishes Maze of Injustice (Maze Report) Sept. 2007 U.N. General Assembly adopts U.N. Declaration on the Rights of Indigenous Peoples. Published declaration; U.S. ratified in 2010. Dec. 2007 Collaborative report by Indigenous organizations in U.S. submitted to Committee on the Elimination of Racial Discrimination. Published report emphasizes high rates of violence against Native women. Jul. 9, 2010 Tribal Law and Order Act. Published as federal law, referred to United States Code. Jan. 24 - Feb. 7, U.S. Special Rapporteur visits Eastern Band of Cherokee Indians. Published 2011 findings in Report of the Special Rapporteur on violence against Women, its causes and consequences, Ms. Rashida Manjoo Jul. 21, 2011 IACHR issues landmark decision in Jessica Gonzales v. U.S. finding U.S. violated Jessica’s human rights under international law by failing to protect her and her daughters. IACHR recognizes the disproportionate impact on Native women in its published decision. Mar. 7, 2013 VAWA 2013 signed into law by President Obama. Published as United States Code.

Lynn Worsham takes the instructive power of shame one step further with her rhetoric of “pedagogical violence,” which “seek[s] to describe both the forms and effects through which violence is lived and experienced and its objective or structural role in the constitution of subjectivities and in the justification of subjection.”21 Further, she also

20 Home Truth - Jessica Gonzales IACHR 2008, Youtube.com, May 22, 2018 3:12 – 5:32 (Nov. 11, 2020 8:49 AM), https://www.youtube.com/watch?v=zArNdSohOnM. It’s clear that Jessica’s statement to the IACHR is an incredibly powerful example of Indigenous Feminist Pedagogy in its own right; however, analyzing it is beyond the scope of this project. It’s worth noting that for this statement, Jessica wore her medicine bag, which is a clear signal of her spiritual and cultural identity as a Native woman to the IACHR despite the U.S. making invisible her identities as a woman of color and Native American. 21 Lynn Worsham, Going Postal: Pedagogic Violence and the Schooling of Emotion, 18.2 JAC: A Journal of Composition Theory 213, 215 (1998).

204

explains “that violence also (and increasingly) arises from within the authority of existing social, political, and economic arrangements and serves quite effectively to reinforce their legitimacy. 22 Pedagogical violence may also represent the power of violence to change audiences through the emotions generated by knowledge and circulation of violent events; in international human rights activism, the emotion of shame plays a key role in the transformation necessary to effect the actualization of human rights. Using this lens of “pedagogical violence” to consider the particularly powerful ways in which stories of the trauma endured due to human rights violations serves as a powerful anchor for learners’ memories to transform society.

The Maze Report was highly effective because of its capacity to invoke shame about the human rights violations perpetrated against Native women. It was keenly attuned to the U.S.’s public stance of moral superiority with regard to protecting the human rights of its citizens; further, AI possessed the moral credibility or ethos to draw the attention of those intending to, or at least feigning to, act according to their moral conscience. By highlighting the U.S.’s moral failure, it harnessed a persuasive power that other international human rights mechanisms often do not.

The Maze Report very succinctly names and specifies how the U.S. is implicated in human rights violations, which leverages sources of power and authority existing outside of the U.S. Through the United Nations and international treaty bodies, the U.S. has voluntarily ratified specific treaties that binds them to the obligations they contain.

The Maze Report also specifies a number of recommendations for remedying these persistent human rights violations. Its international orientation gave “congressional

22 Id.

205

staffers …an external analysis of the problem that helped them convince colleagues of

the incredible need for reform.”23 In a word, the Maze Report called out the U.S.’s unjust processes in an international arena, which proved to be especially effective towards supporting the passage of groundbreaking legislation restoring Tribal Nation sovereignty.

The timing of Amnesty International’s publication of the Maze Report was pivotal for the movement for the safety of Native women. 24

Prior to the Maze Report’s release in April 2007, the three prior versions of

VAWA contained provisions for tribal courts and protection order enforcement.25 These

earlier versions contained provisions for civil action in federal court (later struck down as

unconstitutional), creation of federal domestic violence crimes of interstate stalking,

interstate travel to commit domestic violence, and interstate travel to violate protection.

The federal crimes were enforceable in Indian Country where federal prosecutors could

charge Indians and non-Indians. The Full Faith and Credit clause also required all states

and all tribes to recognize protection orders regardless of where the order was granted.

The first title focusing on the safety of Native women had been included in the 2005

reauthorization of VAWA, signed into law January 5, 2006. 26 The Maze Report added to this momentum.

Despite the National Congress of American Indians raising national awareness about the high rates of violent crimes against Native women through its National Task

Force on Violence Against Native Women, activists lacked critical leverage to influence

23 Supra note 1, at 100. 24 See Jacqueline Agtuca, Timeline: Growth of a Movement for the Safety of Native Women 1977-2013, in Safety for Native Women: VAWA and American Indian Tribes 139-46 (2014). 25 Violence Against Women Act of 1994, P.L. 103-322; Violence Against Women Act Reauthorization of 2000 a.k.a. Victims of Trafficking and Violence Protection Act, P.L. 106-386. For more about the history of VAWA, see supra Chapter Two, § Significance of VAWA 2013 Tribal Provisions. 26 Supra note 24, at 141.

206

lawmakers outside of the House and Senate committees on Indian Affairs, which the

Maze Report provided. 27 In September 2007, the U.N. General Assembly adopted the

U.N. Declaration on the Rights of Indigenous Peoples, which the U.S. initially opposed

but then President Obama later ratified in 2010. In December of the same year of the

Maze Report’s publication, Indigenous organizations and activists submitted a report to

the United Nations Committee on the Elimination of Racial Discrimination (CERD),

which included emphasis upon the higher rates of violence against Native women and the

fact that the majority of perpetrators are non-Indian.

Nestled between several of these key moments and texts of Indigenous activism in the International arena, the Maze Report provided detailed evidence of the human rights violations of Native women in the U.S. and revealed unjust U.S. legal processes that failed to protect them despite rhetoric to the contrary. While Amnesty International published the Maze Report before or after surrounding texts also critical for the movement for the safety of Native women, what makes it important for analysis here is the way it embodies the repetition of key features of the strategies deployed by Native women activists constituting Indigenous Feminist Pedagogy. Through repetition of these features circulating on a broad scale, popular education about the human rights violations of Native women scaffolded learning and anchored collective consciousness about these issues on a national and international level. The Maze Report also provided a legal analysis of federal Indian law accessible to laypersons so that non-lawyers could gain an in-depth understanding of the root causes of the problem. Survivors’ and victims’ stories embedded throughout effectively breathe life into the one-dimensional statistics of

27 See supra note 1, at 99.

207

violence and countered the past rhetoric of disappearance denying the persistent acts of

dispossession of Native women’s sovereignty reproduced by U.S. legal structures. Before

analyzing these key features, it is first helpful to expand upon the international human

rights context to compare the actual U.S. track record on human rights issues with its

alleged moral superiority when it comes to promoting and protecting human rights.28 In

this respect, the Maze Report provided critical truth telling about the U.S.’s failure to

protect the rights of Native women.

II. Native Women’s Rights and International Human Rights Law

At the time the Maze Report was released, the U.S. was subject to the obligations

of several international human rights instruments through ratification of the ICCPR,

CAT, and CERD. The ICCPR was one of two covenants created by the U.N. intended to

specifically create enforcement mechanisms to ensure the protection of civil and political

rights enumerated in the U.N. Declaration of Human Rights. Similarly, CAT intends to

protect all persons from torture, and CERD intends to protect all persons from racial

discrimination. The U.S. ratified all three treaties, making them binding obligations and

committing to comply with their terms. For example, domestic violence has been

specifically named a form of torture as outlined by CAT. 29 That is, where the acts of

28 For example, the U.S. was instrumental in the prosecution of key Nazi officials during the Nuremburg trials and subsequent formation of the United Nations. However, the U.S. has a track record of not ratifying international conventions that would give international covenants the binding force of law under international human rights bodies. That is, the U.S. appears to stand for human rights under the Declaration, but is not willing to be held accountable. These actions arguably call into question the authenticity of U.S. claims of moral superiority on the world stage. 29 In 1993, the UN Special Rapporteur on Violence Against Women also reported that the perpetrator need not be a state actor to violate the Convention Against Torture. See Amici Curiae in support of Jessica Gonzales v. U.S., International Women’s Human Rights Law Clinic City University of New York, Brief Amici Curiae of the International Women’s Human Rights Law Clinic and Center for Constitutional Rights in Support of Petitioners Respecting the Applicability of Torture, Columbia Law School Human Rights

208

domestic violence constitute forms of torture and the U.S. does not take steps to protect

women and children, then the obligation to prevent torture has not been met. However,

because there is no international tribunal or international “police” to enforce their terms,

compliance with these obligations by the U.S. is essentially voluntary. Under certain

treaty obligations or extreme human rights violations such as Native women endure, the

U.N. can vote to economically sanction the U.S. but the actual practice is that the U.S.

holds positions of significant power on the U.N. Security Council and possesses global

economic power such that the other allies would practically never choose to sanction the

U.S. This situation often leaves public shaming as one of the only sources of effective

leverage available for human rights activists, which is why the Maze Report played such

a powerful role in the movement for the safety of Native women. 30 However, there is one international legal system that can hear individual cases from U.S. persons where human rights have been violated and make recommendations for action: Inter-American

Commission on Human Rights (IACHR). While the IACHR may hear cases and make recommendations for the U.S., these recommendations are not binding obligations in the same way as countries who have signed onto the agreement because the U.S. has not signed the agreement granting the Commission jurisdiction over it. Still, this international stage can influence U.S. policy by drawing attention to human rights violations permissible under U.S. law.

It was in the IACHR that Jessica Lenahan (formerly Gonzales) brought her case in December 2005 against the U.S. for violating her and her daughters’ human rights

Institute 15 (Nov. 2, 2020 3:35 PM), https://web.law.columbia.edu/sites/default/files/microsites/human- rights-institute/files/Gonzalesdocs/amicus%20torture.pdf. 30 See supra note 9, at 380-81.

209

when police failed to enforce her protection order. The alleged rights violated are

obligations prescribed by the American Declaration of Human Rights and Duties of Man

(Declaration), including the rights to equality, life and personal security, protection of

private and family life, protection of family, special protection for mother and children, the inviolability of home, resort to the courts, and obtain a prompt decision from the courts. Jessica’s landmark decision (Decision) added momentum to the way the U.S. government treated violence against Native women in the U.S. because of recommendations made by the Commission, which held the U.S. legal system accountable on an international platform for its discriminatory acts. While this case’s final Decision was published in July 2011, it was ongoing, starting before and continuing after the publication of the Maze Report. What follows details some of the important

aspects of this case, beginning with an overview of the IACHR to make clear the

complexity and hurdles that had to be overcome for this case to be heard by the IACHR.

A. Overview of Inter-American Court of Human Rights 31

The fact that the IACHR issued a Decision in Jessica Lenahan’s (Gonzales) case

that recommended action by the U.S. to immediately ensure the rights of other similarly

situated persons represented a significant victory for protecting the rights of Native

women. The IACHR operates as a legal forum within the regional international legal

system of the Organization of American States (OAS). In general, sovereign nation

states 32 are more likely to comply with the complaints about human rights violations that

occur in their own regional system because of the proximity of states to one another,

31 Much of the background information outlined here was derived from Professor Kristine Huskey’s International Human Rights course in Spring 2019 at the James E. Rogers College of Law. 32 The use of “state” in this section refers to sovereign nations recognized by the U.N. and not U.S. states.

210

which means the imposition of sanctions tend to have a real impact. 33 IACHR Decision

also functioned to catapult the movement for the safety of Native women to the forefront

of international attention. 34 This Decision following the SCOTUS’s negative ruling in

Castlerock v. Gonzales 35 illuminates how the Maze Report accomplished what the U.S.

and international legal systems alone could not: mobilizing justice for Native women.

In order to understand the authority and impact of this kind of decision, it’s

important to understand the structure of the IACHR. The Declaration, ratified in Bogata,

Colombia on May 2, 1948 by an alliance of states in the Americas, was the first human

rights instrument of its kind in the world. The United Nations Declaration of Human

Rights followed a few months later. The allied American states ratified the charter of the

OAS (Charter) on the same day as the Declaration. The U.S. ratified both the Declaration

and the Charter; however, the U.S. did not ratify the American Convention of Human

Rights (Convention) that more precisely enumerates the principles in the Declaration and

gives them binding power as law. While the Declaration alone is comprised of principles

that do not carry the binding force of international treaties, the IACHR and the Inter-

American Court on Human Rights (Court) have interpreted them to be binding on

member states who have not ratified the Convention such as the U.S. That is, according

to the customary law of the OAS, the Declaration is binding upon its members. The

IACHR and the Court enforce the obligations contained in the Declaration.

33 Rhona K.M. Smith, Regional protection of human rights: Enforceability, in International Human Rights Law 86-96 (8th Ed., 2018) 34 Margaret B. Drew, Truth Seeking: The Lenahan Case and the Search for a Human Rights Remedy, 62:4 Saint Louis University Law Journal 903 (2018). 35 545 U.S. 748 (2005).

211

Because the IACHR and the Court, the enforcement bodies of the OAS, are located in Washington, D.C. and accept petitions in English and Spanish, this forum is relatively accessible for U.S. persons filing a petition for international human rights violations.

Given the lack of compliance with recommendations made and limitations on filing individual complaints in international forums outside the OAS, activist organizations strategically filed Jessica Lenahan’s petition in the IACHR to pressure the U.S. to change its legal stance regarding policies for enforcing protection orders as well protections for

Native women surviving sexual and other violence. Jessica’s petition strategically situated the movement for the safety of Native women on an international platform that could recommend changes by the U.S. government. Both the American Civil Liberties

Union (ACLU) and Columbia Law School Human Rights Clinic filed the petition to the

Commission as co-counsel for Jessica.

The Commission monitors compliance with the Declaration according to the

Charter’s allocation of that authority over its member-state signatories; in order for an individual’s complaint against a state to be heard, the person must first file a petition with the Commission. In order for the individual to petition the Commission they must demonstrate the following:

● the situation is extremely grave and urgent; ● there is imminent danger of suffering irreparable harm; ● immediate action is required by the state; ● identification of what measures need to be taken to avoid harm; ● domestic remedies exhausted.

Based on a preliminary review of the petition, IACHR either makes a decision to request more information, not process the petition, or open the petition for processing. If opened for processing, then the petition moves into the admissibility phase; after information is

212

exchanged between parties, the IACHR then decides if the petition is admissible. At this

phase, the IACHR looks at the allegations and evidence presented; this phase may include a hearing. If the individual proves that the state has violated its obligations under the Declaration, the Commission will then file a report recommending that the state do one or more of the following: suspend actions, investigate and punish the person perpetrating human rights violations, make reparation for damages, make changes to legislation, or require other measures or actions. 36 The Commission may then refer the

case to the IACHR if the state does not comply with the recommendations made.

However, only member states that have ratified the Convention are subject to the

jurisdiction of the Court unless the state consents to jurisdiction, which the U.S. did not

do.

In order to file a petition, Jessica Lenahan first had to prove she had exhausted all

remedies available to her in the U.S. The Commission explains that “[a] person has

exhausted domestic remedies when the judicial branch has issued a decision of last

resort.” 37 For Jessica, she pled her case all the way to the Supreme Court of the United

States (SCOTUS), which exhausted her legal remedies in the U.S. Her tragic story begins

when her three daughters were abducted by their father.

B. Jessica Lenahan’s Story

On June 22, 1999, Jessica’s three daughters, Rebecca, Katheryn, and Leslie, were

abducted and murdered by their father, Simon Gonzales, who proceeded to commit

36 Petition and Case System Informational Brochure, Inter-American Commission on Human Rights 7 (2010) (Nov. 10, 2020 6:56 AM), https://www.oas.org/en/iachr/docs/pdf/HowTo.pdf. 37 Supra note 36, at 8.

213

suicide by charging at the police at the station, precipitating a shootout. 38 Simon had

suffered from mental illness and drug and alcohol abuse. Jessica had first initiated

divorce proceedings in 1996, and the Douglas County Court first granted a temporary

restraining order against Simon in May 1999. The Colorado State Court made the order

permanent in early June 1999. Prior to this horrific tragedy, Jessica had repeatedly called

Castle Rock Police to enforce the order of protection against Simon. At no point was

Simon arrested, which was required by Colorado Law. On the day of her children’s

abduction and murder, Jessica called the Castle Rock Police Department as soon as 20

minutes after realizing her children were missing and repeatedly for a period of ten hours.

No search was ever conducted for her daughters prior to their murder.

Half an hour after the police made an initial visit to her home, Jessica finally

received a call from Simon indicating he had taken the girls to an amusement park 40

miles away. Upon calling the police back a second time to tell them Simon’s

whereabouts, the police called her back instead of returning to her home. The calling

officer was dismissive, saying, “I was just up there. What’s the deal?”39 Jessica called the

police a third time after receiving a call from Simon’s girlfriend asking strange questions

about Simon’s mental state and behavior. The police continued to dismiss Jessica’s pleas

to issue an APB and to contact Denver police over a ten-hour period. She then went to

Simon’s home and after discovering he was not there, she went to the police station.

Officer Brink, who had come to her house earlier still was on duty doing paperwork, did

38 Timeline of Gonzales v. United States of America: Fact Sheet on Protective Orders and the Role of Police Enforcement, Jessica Gonzales v United States: Case Documents & Amicus Briefs, Columbia Law School Human Rights Clinic (Nov. 10, 2020 7:03 AM), https://web.law.columbia.edu/human-rights- institute/inter-american-human-rights-system/jessica-gonzales-v-us/gonzales-case-page. 39 Supra note 38.

214

not follow up with her. Instead, Detective Ahlfinger spoke with her and indicated he

would attempt to locate Simon and the girls, but instead went to dinner. Ten hours after

the time when the girls went missing, Simon arrived at the police station and was killed

by police; the police discovered the bodies of Jessica’s three daughters in Simon’s truck.

Adding to her injuries, Jessica was stopped as she drove to the police station and held for

interrogation for almost twelve hours. During her interrogation, she was not told her

daughters were murdered for four more hours.

While the events of the abductions and murders of her daughters did not occur in

Indian Country, Jessica Lenahan is a Native woman and so were her three daughters. The

ways in which the rights of any Native woman are violated, wherever it occurs, are

relevant for all Native women. Jessica filed a claim against the state of Colorado

asserting that by not enforcing her protection order against Simon that her substantive

and procedural due process rights were violated. She brought a civil rights violation tort

claim against the police officers who failed to enforce her protection order, acting in the

capacity of their job duties as the state. 40

C. Jessica’s Legal Cases

Jessica Lenahan filed a complaint with the IACHR after exhausting all of her appeals in the U.S. court system for the Castlerock Police Department’s failure to enforce a protection order against her estranged husband, a mandatory requirement for law enforcement under state law. Her SCOTUS case represented the last legal mechanism for her to gain relief under U.S. law. Jessica began her civil rights case in Colorado state court.

40 42 U.S.C. 1983.

215

Jessica based her legal claim in the U.S. on the only federal tort claim statute

available for persons harmed by unlawful actions of the government: 42 United States

Code Section 1983. This law reads:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress…. 41

Claims made under this federal tort law statute are often referred to as “1983 claims.”

Michael Mattis explains the two-part test, as clarified in Parratt v. Taylor, to sustain a

1983 claim as follows: “First, a person must have committed the action ‘acting under

color of state law’[,] [s]econd, the action must have deprived the plaintiff of a federal

constitutional right.”42 However, the history of enforcement of this law is heavily

weighted in the favor of the state. 43 Erwin Chemerinsky explains how case law for

government tort claims created what he calls “state created action doctrine.” 44 He

explains that “[t]he context for state-created danger case law arose from Supreme Court decisions which held that the government has no duty to protect people from privately inflicted harms.” 45 The state action doctrine began with DeShaney v. Winnebago County

41 Id. (emphasis added). 42 Mattis, infra note 94, at 521. 43 Professor Tatum (formerly, Koehn) explains how the SCOTUS up until 1997 had created “a system in which prisoners, Indians, and persons suing police departments are not entitled to full constitutional protection.” Melissa L. Koehn, The New American Caste System: The Supreme Court and Discrimination Among Civil Rights Plaintiffs, 32 U. of Mich. J. of L. Reform 48, 49 (1998). More recently, Erwin Chemerinsky explains how the state created action doctrine narrowly limits government liability to situations where the government created the harm caused; the harm may not arise by a private actor. See Chemerinsky, supra note 11, at 1. 44 Chemerinsky, supra note 11, at 1. 45 See Chemerinsky, supra note 11, at 1. McQuigg argues that it is precisely this reluctance that is symptomatic of the wider failure by the U.S. to comply with its positive obligations under international human rights law. See supra note 13, at 133.

216

Department of Social Services, 46 holding that the government could not be liable for

substantive due process violations by private actors. He notes how

Chief Justice Rehnquist explained that the Constitution typically provides negative liberties and does not impose affirmative duties on the government. For instance, the Constitution provides that the government cannot infringe upon the right to freedom of speech under the First Amendment, and the government cannot deny life, liberty, or property without due process of law under the Fourteenth Amendment. 47

However, according to Deshaney, the government would be liable for violations of

procedural due process where a fundamental right exists and someone is deprived of that

right without due process. The Due Process Clause, set forth in the Fourteenth

Amendment to the Constitution, states "[n]or shall any State deprive any person of life,

liberty, or property, without due process of law….”48 Jessica’s claim asserted that

Castlerock Police violated her due process rights where she held a property interest in her protection order; it also asserted the police violated her substantive due process rights

under the Fifth Amendment, as reversely incorporated through the Fourteen Amendment

of the U.S. Constitution to apply to state actors. 49 The Colorado Supreme Court held that

neither claim held merit. Jessica then appealed her case to the Tenth Circuit Court of

Appeals (Tenth Circuit). The Tenth Circuit found that Gonzales had a property interest in

her protection order of which she was deprived when Castlerock police failed to enforce

it; Judge Seymour explained that by virtue of writing the protection order enforcement

46 489 U.S. 189 (1989). 47 See Chemerinsky supra note 11, at 2. 48 U.S. CONST. amend. XIV, § 1. 49 See Mattis, infra note 94, at 530.

217

statute in mandatory terms, the state had created a property interest. 50 However, the state of Colorado appealed to SCOTUS.

Jessica’s case was the next state-created danger case following Deshaney. 51 After her complaint alleging constitutional violations made its way through the state courts and was appealed to the SCOTUS, the Court reversed the Tenth Circuit Court of Appeals decision and held that she had no constitutional right to police enforcement of the restraining order. However, based on the legal rule of Deshaney, Jessica’s procedural due process claim should have been affirmed according to existing legal precedent; that is, the

Tenth Circuit found state law valid based on Colorado’s mandatory language creating a property interest in the protection order. Legal precedence in this area was well established, recognizing that procedural due process claims stem from state law whereas substantive due process claims stem from the rights derived from the Constitution.52 That is, if state law clearly creates a constitutional right, then due process must be given before taking it away. Mattis explains the test for procedural due process applied by the Tenth

Circuit to Jessica’s case as follows: 1) whether state law, through granting the protection order, created a property interest protected by the Fourteenth Amendment and, if so, 2) whether the State denied Ms. Gonzales “an appropriate level of process.” 53 Ronagh

McQuigg explains that SCOTUS interpreted the due process clause in Jessica’s case,

Castlerock v. Gonzales, to impose “no duty on the state to provide members of the

50 Gonzales v. City of Castle Rock, 366 F.3d 1093, 1099-1100 (10th Cir. 2004) (en banc) (noting the claim falls outside the bounds set by DeShaney and establishing review of the procedural due process claims, rather than the substantive claims). DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189 (1989). 51 See Chemerinsky supra note 11, at 4.

52 See infra note 94, at 530-31. 53 Infra note 94, at 531.

218

general public with adequate protective services. According to the Court, although the

Clause forbade the state itself from depriving individuals of life, liberty and property

without due process of the law, it did not impose a positive obligation on the state to

ensure that those interests did not come to harm through other means.”54 According to

Justice Scalia, “no law, even if it is written in mandatory terms, like Colorado's law,

creates an ‘entitlement’ because law enforcement officers always have discretion as to

how to enforce any law.” 55

After Gonzales, there was no difference in substantive or procedural due process

1983 claims because the government has no duty to protect persons from harms by

private actors. SCOTUS denied her claim as both a substantive due process right and as a

procedural due. 56 It was after this decision that Jessica decided to petition the IACHR,

claiming human rights violations by the Castle Rock Police Department and the

SCOTUS.

D. Jessica Lenahan’s Inter-American Commission of Human Rights Petition

A number of amicus curiae briefs were submitted on Jessica’s behalf during the processing of the case that powerfully educated the Commission on violations of the rights of Native women. 57 These briefs were from a cross-sector of international and

national non-governmental organizations, networks, and entities dedicated to the

protection of the rights of women and children. On November 13, 2008, Lucy Simpson

54 McQuiqq, see supra note 13, 131. Castlerock v. Gonzales, 545 U.S. 748 (2005). 55 Gonzales, 125 S. Ct. at 2805-06. 56 See Chemerinsky supra note 11, at 2. 57 Amicus Curiae translates as “friend of the court.” These briefs are filed by parties not named as part of the litigation but advise the court on some matter of law that affects the subject matter of the case being litigated. amicus curiae, n., OED Online, Oxford University Press, March 2020 (Nov. 10, 2020 7:07 AM), https://www-oed-com.ezproxy1.library.arizona.edu/view/Entry/6404?redirectedFrom=amicus+curiae#eid.

219

and Kirsten Matoy Carlson, representing the Indian Law Resource Center, and Jaqueline

Agtuca and Terri Henry, 58 representing the Sacred Circle National Resource Center to

End Violence Against Native Women presented an amicus curiae brief. 59 This brief summarized the data available showing the high rates of unprosecuted domestic violence and sexual assault crimes committed against Native women. It also explained the complicated jurisdictional maze that often leads to perpetrators of crimes against Native women going unpunished. Many of the same topics highlighted by the Maze Report were reiterated in this amicus curiae brief. By citing rates of violence against Native women compared with non-Indians, these activists bolstered groundwork laid for equal protection claims by the Maze Report and other activism.60 The brief also explained the complicated jurisdictional maze created by SCOTUS decisions and federal legislation limiting criminal jurisdiction and sentencing as well as prohibiting prosecution of non-

Indians entering reservation lands.

While Jessica lived outside of any reservation or “Indian Country,” she self identifies as a Latina and Native American mother. These bases of race, indigeneity, and motherhood afford her special protections under CERD and the Convention on the

58 Henry later was instrumental in the passage of the Violence Against Women Act with the tribal provisions; her involvement was also written into the play, Sliver of a Full Moon, analyzed in the previous chapter. 59 Jaqueline Agtuca, Terry Henry, Sacred Circle National Resource Center to End Violence Against Native Women, Amicus Curiae Brief for Jessica Gonzales, In her individual capacity and on behalf of her deceased daughters, Katheryn, Rebecca, and Leslie Gonzales vs. The United States of America, Jessica Gonzales v United States: Case Documents & Amicus Briefs, Columbia Law School Human Rights Clinic (Nov. 10, 2020 7:03 AM), https://web.law.columbia.edu/human-rights-institute/inter-american-human-rights- system/jessica-gonzales-v-us/gonzales-case-page. 60 Melissa Tatum and Jennifer Hendry highlight the strategy of comparing violence against Native women versus non-Indian groups as a setup for equal protection claims. While sovereignty as a political classification affords Native women a unique status in U.S. legal systems that could protect the U.S. from equal protection claims, these same parameters do not exist under customary international law. Human rights violations disparately impacting women of color are discriminatory violations of human rights. Full consideration of this topic is beyond the scope of this project.

220

Elimination of All Forms of Discrimination Against Women (CEDAW). While many of the jurisdictional gaps created by federal Indian law 61 that occur when non-Indian perpetrators harm Native women were not present in Jessica’s case, it is still significant that the Castlerock Police chose to ignore the calls and requests of a Native woman to search for her abducted children because she was being “a little ridiculous making …[the police]…freak out and thinking the kids are gone.”62 Furthermore, Jessica’s case was an important international platform from which Native women activists could gain traction in drawing additional media attention to the human rights violations occurring against

Native women.

The work of mobilized Native women activists was memorialized in the amicus curiae brief submitted by the Indian Law Resource Center and the Sacred Circle National

Resource Center to the IACHR. These activists for the movement for the safety of Native women used the opportunity to not only support Jessica’s case, but to educate the court about the structural conditions in the U.S. legal system that reproduce violence against

Native women. The brief included content that does not directly apply to Jessica’s case, such as an explanation of the jurisdictional maze created by Indian Country concurrent federal/state jurisdiction that is further determined by perpetrator identity. By doing so, it became clear that the brief was intended to not only support Jessica’s petition but also to educate the IACHR and the international legal community about the injustices unique to federal Indian law. These activists understood that Jessica’s hearing was an opportunity for the voices of other Native women to be heard vicariously through Jessica. Ultimately,

61 See infra Table 5, Criminal Jurisdiction in Indian Country, at 240. 62 Supra note 38. It’s worth highlighting the patriarchal norms embodied in this response to Jessica’s panic; rather than affirming her intuition about the imminent risk of harm to her children, the police questioned it and characterized her as an unreasonable woman who was “freaking out.”

221

the Commission’s decision in Jessica’s favor amplified the voices of Native women

activists on an international level, gaining exponential momentum initiated by the Maze

Report and other activism as an ecology of transformative popular education pedagogy.

Despite the fact that Jessica Lenahan was living outside of Indian Country when her protection order was ignored, her victory was a significant step towards protecting all

Native women. The Commission concluded that the U.S., through the actions of the state of Colorado, failed to meet its duty of due diligence to protect Jessica and her three daughters from domestic violence. Further, these failures to protect “constituted a form of discrimination in violation of Article II of the American Declaration.” 63 The IACHR

explained

These systemic failures are particularly serious since they took place in a context where there has been a historical problem with the enforcement of protection orders; a problem that has disproportionately affected women—especially those pertaining to ethnic and racial minorities and to low-income groups—since they constitute the majority of the restraining order holders. Within this context, there is also a high correlation between the problem of wife battering and child abuse, exacerbated when the parties in a marriage separate. 64

This Decision was a very strong assertion that the U.S. failed to meet its obligations to

protect women, especially women of color, and that this failure is an extreme form of

discrimination that violates women’s human rights. By articulating the history of

disparate enforcement of protection orders for women of color, IACHR reaffirmed the

platform of Native women building a case of unequal protection under international

human rights law. The Commission made several recommendations as to how the U.S.

63 Report No. 80/11, Case 12.628, Merits, Jessica Lenahan (Gonzales) et al. July 21, 2011, Jessica Gonzales v United States: Case Documents & Amicus Briefs, Columbia Law School Human Rights Clinic 43 (Nov. 10, 2020 7:19 AM), https://web.law.columbia.edu/human-rights-institute/inter-american-human- rights-system/jessica-gonzales-v-us/gonzales-case-page. 64 Supra note 63, at 43-44.

222

could remedy both the individual and systemic conditions that led to the violation of

Jessica’s and her daughters’ rights, including individual and systemic investigations of

the breakdown of justice; reparations to Jessica and her next-of-kin; adoption of legislation making protection order enforcement mandatory, protecting women from imminent violence, and protecting children in the context of domestic violence; and designing protocols for state and federal law enforcement for the proper elements of investigations of a missing children report in the context of a protection order violation. 65

The specific human rights violated are made clear in the Decision’s conclusions and recommendations; how the U.S. would respond to these recommendations was less clear. While the Decision provided concrete analysis and examples of rhetoric to which the U.S. would have to pay attention as long as it remains a member of the OAS, the U.S. has officially maintained the opinion it is not subject to the jurisdiction of the

Commission’s recommendations because it did not sign the Convention. While the decisions of the IACHR are binding on all member states, there still remains some question as to the enforceability of its decisions so long as recommendations are de facto unenforceable.

During the recommendations made by the IACHR to the U.S. about its treatment of prisoners at Guantanamo Bay, President Obama declared the Commission did not have jurisdiction over the U.S. This specifically occurred in the case of Mohammad Rahim, who remained incarcerated at Guantanamo for nearly a decade without being charged with any crime. 66 This deprivation of liberty without due process clearly violated the

65 Supra note 63, at 53. 66 Inter-American Commission on Human Rights Resolution 25/2017, Precautionary measure N° 184-17, Mohammad Rahim regarding the United States of America1, July 25, 2017, Jessica Gonzales v United States: Case Documents & Amicus Briefs, Columbia Law School Human Rights Clinic 43 (Nov. 10, 2020

223

Declaration. According to the IACHR and articulated in its “Interpretation of the

American Declaration of the Rights and Duties of Man in the context of Article 64 of the

American Convention on Human Rights” advisory opinion in 1989, the rights

enumerated in the Declaration are binding on all members of the OAS. 67 The U.S. continues to disagree with the OAS on the binding force of its decisions.

Consequently, the U.S. did not directly enforce the Jessica Lenahan Decision’s recommendations. However, the ACLU persisted in pressuring the U.S. to enact remedial legislation. These efforts eventually resulted in the issuance of a new guidance by the

Department of Justice titled “Identifying and Preventing Gender Bias in Law

Enforcement Response to Domestic Violence and Sexual Assault” in 2015. 68 In this way

and many others, the IACHR’s Decision laid new ground for the movement for the safety

of Native women. Most powerfully, the Commission made clear to the world that when

the U.S. fails to protect Native women and children from violence, it is a discriminatory

violation of international human rights. This assertion propelled further the international

attention that was initiated with the Maze Report in 2007, including capturing the

attention of the United Nations.

7:19 AM), https://web.law.columbia.edu/human-rights-institute/inter-american-human-rights- system/jessica-gonzales-v-us/gonzales-case-page. 67 Interpretation of the American Declaration of the Rights and Duties of Man Within the Framework of Article 64 of the American Convention on Human Rights, Advisory Opinion OC-10/89, July 14, 1989, Inter-Am. Ct. H.R. (Ser. A) No. 10 (1989), University of Minnesota, Human Rights Library (Nov. 10, 2020 7:25 AM), http://hrlibrary.umn.edu/iachr/b_11_4j.htm. 68 Lenora M. Lapidus, Jessica Lenahan Lived Through a Domestic Violence Nightmare and Emerged as a Heroic Advocate for Police Reform, Women's Rights Project, ACLU, June 9, 2017 (Nov. 10, 2020 7:26 AM), https://www.aclu.org/blog/womens-rights/violence-against-women/jessica-lenahan-lived-through- domestic-violence-nightmare.

224

E. 2011 United Nations Special Rapporteur Visit to the U.S.69

The same year as, but prior to, Jessica’s Decision, the United Nations sent Special

Rapporteur Rashida Manjoo to visit the United States to learn more about the human

rights violations against women, “especially the multiple, intersecting forms of

discrimination, particularly native [sic] American, immigrant, and African American.”70

She visited the Eastern Band of Cherokee as well as several other tribes between January

24 and February 7, 2011. Manjoo’s visit culminated in the report released June 7, 2011

that made specific recommendations about how the U.S. should remedy the widespread

harms against women with special attention made to the intersections of poverty and

race. 71 She noted that the “lack of substantive protective legislation, combined with

inadequate implementation of some laws, policies and programmes, has resulted in the

continued prevalence of violence against women and the discriminatory treatment of

victims, with a particularly detrimental impact on poor, minority and immigrant women.”

The report recommendations included “providing remedies for women victims of

violence, investigating and prosecuting violence against women in the military,

improving the conditions of women in detention and tackling the multiple forms of

discrimination faced by certain groups of women that make them more vulnerable to

violence.” 72 These recommendations are particularly important in light of the fact that the

U.S. has never ratified CEDAW, first chartered over forty years ago in 1979. The report’s

emphasis on “multiple discriminations” circulates the same concerns noted in the

69 Rashida Manjoo, Report of the Special Rapporteur on violence against Women, its causes and consequences (A/HRC/26/38), United Nations Women (Nov. 10, 2020), https://www.unwomen.org/en/docs/2014/5/special-rapporteur-on-violence-against-women-a-hrc-26-38. 70 Supra note 69, at 1. 71Supra note 69, at 1. 72 Supra note 69, at 2 (emphasis added).

225

IACHR’s Lenahan Decision and the Maze Report. The U.S. failure to protect women as evidenced by this report and its failure to ratify CEDAW belies its alleged adherence to not discriminating on the basis of sex. This longstanding legacy of unwillingness to stand up for women’s rights as a legacy of patriarchal tendencies of whiteness as disappearance, especially with regard to Native women in Indian Country, speaks to the need for activism like the Maze Report to draw international attention about the failure of the U.S. to protect Native women.

III. Maze Report: Popular Education Strategy for Teaching Audiences about Restoration of Tribal Sovereignty to Protect Native Women

The two primary recommended remedial action areas by the U.S. made in the

Maze Report are the restoration of Tribal Nation jurisdiction as well as the allocation of additional resources to tribal police and governments to support more effective policing and courtroom processes for holding perpetrators of domestic violence and sexual assault in Indian Country accountable. Through emphasis on the restoration of jurisdiction in order to protect Native women, the Maze Report educates international audiences about the complex jurisdictional maze created as a result of the SCOTUS’s unjustified dispossession of jurisdiction over non-Indians. By virtue of carelessly complicating the enforcement of laws on Tribal Nation lands, SCOTUS created safe havens for violent and sexual non-Indian predators across the country. 73 This popular education approach to

legal activism represents one of the key ways in which Native women activists have

effectively deployed strategies to change the legal system outside of a strictly rights

based approach. Professors Melissa Tatum and Jennifer Hendry articulate in Human

73 Supra note 2, 4. 86% of crimes of rape and sexual assault against American Indian and Alaskan Native women are reported as perpetrated by non-Indians.

226

Rights, Indigenous Peoples, and the Pursuit of Justice that “a program of public

education is likely to bring more satisfactory and longer-lasting results than one of

litigation.”74 The Maze Report is just one example of Native women activism that

contextualizes legal meaning through stories. Sarah Deer draws upon Dian Million’s

naming of this process of contextualizing empirical knowledge with lived experience as

“felt theory,” “the kind of knowledge we gain from experiencing something; a visceral

knowledge that can invoke the physical senses and the genius of memory.” 75 The Maze

Report uniquely contextualizes violence against Native women through incorporation of

the lived experiences of victims of sexual violence. By educating readers about U.S.

culpability for creating the climate leading to this pandemic, the Maze Report reveals the

federal obligation to correct this epic error in such a way that not acting would be

shameful. 76

Media campaigns that tell the stories of loved ones who have not received a

remedy for the violation of the right of life inflicted on the deceased is a powerful

strategy for shaming the U.S. into changing federal law. According to international

human rights scholar, Kenneth Roth, “shaming” is an effective strategy for pressuring

government actors. 77 Roth outlines this activist approach as requiring clear articulation of

three things: (1) violation, (2) violator, and (3) remedy. 78 For any social media or general

74 Supra note 9, at 386. 75 Supra note 1, at 14. See Diane Million, There Is A River in Me: Theory From Life, in Theorizing Native Studies, (Andrea Smith and Audra Simpson, eds., 2014), http://ebookcentral.proquest.com/lib/uaz/detail.action?docID=1687321. 76 See also Tatum and Hendry, supra note 9, at 381. Here, the authors explain how other U.S. media circulated articles that had the effect that those who opposed restoration of jurisdiction to prosecute non- Indians, would be viewed as condoning it. E.g., one title was “Protecting Rapists, Murderers by Killing VAWA.” 77 Phillip Alston & Ryan Goodman, Economic and Social Rights, in International Human Rights: Text and Materials 295 (Oxford University Press 2013). 78 Supra note 77.

227

media stories to effectively shame the U.S. government, these three elements should be

made clear in the stories told. Amnesty International effectively deployed this shaming

strategy in the Maze Report. Both its pedagogical and shaming tactics were primarily

achieved through the strategy of citing Native women’s work and experiences as expert

sources demonstrating the report’s findings about the widespread human rights violations

in Indian Country.

A. Two Ways of Knowing: Empirical Data and Applied Felt Theory for Generating Shame

In addition to citing key research and statistics documenting the lack of accountability required of non-Indian perpetrators of violence against Native women, the

Maze Report draws upon the method of counterstorytelling or truth telling through reference to persons interviewed as part of Amnesty International’s research for the report. But what is unique is the way empirical data is contextualized by stories about experiences of Native women; anonymous data becomes grounded in stories that are rich with lived experiences. Through these stories, the inextricable weaving of historical trauma and current violence against Native women comes to life in a concrete way; the reproduction of white supremacy through tactics of disappearance through continued systems of subordination rooted in colonization becomes clear. The introduction of the

Maze Report includes relevant quotes from practitioners supporting Native women

survivors and international legal authorities, including an Alaskan Native support worker

(anonymous) and the UN Special Rapporteur, Radhika Coomaraswamy. These quotes

add credibility in various ways and frame the context for why the report is so important

and its recommendations necessary.

228

The locational placement of the quoted interviewees in the actual body of the

report is particularly important. Many of the Maze Report quotes are not visually inserted

as sidebars as a figure of statistics often are, but instead are woven into the body of the

text. This placement speaks to the centrality of this source of knowledge within the

report. While there are sidebars, the information contained in them highlight key facts,

statistics, and/ or results of research; for example, a sidebar on page four quotes

Congress’s findings that “Indian tribes require additional criminal justice and victim

services resources.” 79 Another sidebar on page eight highlights that “Tribal Nations

maintain separate cultures, customs and histories. More than 250 languages are

spoken.”80 However, the positioning and inclusion of other quotes drawn from practitioner and survivor interviews requires the reader to read them or risk missing the entire meaning of what is written on the page. This orientation of the voices of Native women quite literally centers them on the pages of the report. In several instances, the identities of some of the support workers and survivors quoted are withheld, most likely for safety reasons. The ways in which the text incorporates the quotes of persons interviewed reminds the reader that there are real persons whose lives have been impacted by the legal conditions preventing tribes from prosecuting non-Indians. These

quotes give life to otherwise depersonalized facts that might be more easily ignored.

The introduction also includes abbreviated versions of two victims’ stories, Della

Brown and Rhea’s unnamed friend. They are not survivors. They were both brutally

raped and died as a result of the U.S.’s failure to meet its obligations to protect all its

citizens from violence.

79 Supra note 2, at 4. 80 Supra note 2, at 8.

229

Della Brown’s story is included right after an explanation about how evidence indicates that rape of Native women is generally accompanied by additional violence other than the rape itself. That is, fifty percent of Native women reported physical injuries in addition to rape, compared with 30% reported generally in the U.S. 81 This logos appeal by way of comparison is particularly important for laying the groundwork of future equal protection claims under international human rights law. As Professors Tatum and Hendry astutely recognized, these kinds of comparisons were a key tactic of Native women activists in international media. 82 Immediately following this empirical data, Maze

Report describes the horrific circumstances of the discovery of Della Brown’s remains.

Della Brown, a 33-year-old Alaska Native woman, was raped, mutilated and murdered. Her body was discovered in an abandoned shed in Anchorage in September 2000. Her skull was so pulverized the coroner compared her head to a “bag of ice.” Police believe a number of people walked through the shed, lighting matches in order to view her battered remains, but did not report the murder to the Anchorage police. To date, no one has been brought to justice for the rape and murder of Della Brown. 83

The horror depicted in the words of Della Brown’s story leaves an indelible mark on the reader’s soul. It requires the reader to wonder: How could the U.S. legal system go so horribly wrong to leave a woman’s rights to life and legal remedies so violated? Why was she not protected? Why did so many others view her remains without contacting authorities to seek justice for her brutalization—why are the authorities so untrustworthy?

This true story exemplifies the objectification of Native women as dehumanized victims of violence, making invisible their fundamental and inherent sovereignty as persons and

81 Supra note 2, at 5. 82 Supra note 9, at 381. 83 Supra note 2, at 6.

230

Tribal Nation citizens. Not only are their property rights not protected, as we saw in

Gonzales, but their rights to life are fundamentally devalued.

Most importantly, Della Brown’s story is unforgettable; the cruelty is cauterized

onto the reader’s consciousness. The radical violence accompanying the sexual assault of

Native women becomes poignantly clear. Della Brown’s story also stands in for, in part,

the dearth of data about violence against Native women that is sorely lacking. 84 Rhea’s friend’s story is equally powerful, serving as applied Felt Theory.

Rhea’s friend’s story is shared after a brief exposition about the frequency with which women “experience sexual violence at the hands of their male acquaintances, boyfriends or husbands.”85 It explains that most perpetrators go unpunished for a number

of reasons, including a lack of recognition by the women themselves, the “responding

authorities and by society in general—that such violence constitutes a crime.”86 This

passage speaks to the ways in which sexual violence has become normalized by women,

law enforcement, and society in general. “Impunity for perpetrators and indifference

towards survivors contribute to a climate where sexual violence is seen as normal and

inescapable rather than criminal, and where women do not seek justice because they

know they will be met with inaction.”87 For persons experiencing both historical and

personal trauma in their lives, trauma itself often becomes normalized and no longer

recognized because it is seemingly inevitable, as oftentimes the only path for surviving

repeat trauma is to deny it is trauma at all. This point illuminates the ways in which

structural subordination relies upon a process of invisibility to reproduce itself; what is

84 Supra note 2, at 2, 5. 85 Supra note 2, at 6. 86 Supra note 2, at 6. 87 Supra note 2, at 9.

231

normalized becomes part of the structural ideology forming society. Here, that ideology is whiteness as disappearance embodied in systemic tactics of white supremacy allowing human rights violations against Native women and reproducing hundreds of years of their disappearance. When the specific acts themselves are not charged as crimes, they go unpunished and continue to occur more frequently as perpetrators realize there is no recourse: the system is effectively reproducing itself. Rhea’s friend was caught in this web of invisibility that eventually led to her death.

Rhea, a Native American woman from the Standing Rock Sioux Reservation (North and South Dakota) told Amnesty International about the experience of her friend, a 21-year-old Native American woman, who was raped and severely beaten by four men in February 2003. She said her friend was initially brought to Indian Health Service hospital in Fort Yates but was transferred to a hospital in Bismarck, North Dakota, in a critical condition, having taken an overdose of anti- diabetic medication that she found in the house where she had been raped with the apparent intention of committing suicide. Rhea said: “she just lay there all beat up, with big black eyes.” According to Rhea, a Standing Rock Police Department (SRPD) officer came to the hospital and questioned her friend while she could still talk. She died two weeks after the rape. Rhea says she spoke to the officer a year later; he told her the case was closed. “The perpetrators are still walking around,” she told Amnesty International, “I don’t know why.” The Chief of Police of SRPD told Amnesty International that they have been unable to find any record of the case. Interview with Rhea, 2006 (details withheld)88

The story of Rhea’s friend humanizes the ways in which violence against Native women reproduces itself in everyday life. In this respect, patriarchal violence is invisibly reproduced through a process of normalization. Rhea’s friend’s story disrupts these tactics of whiteness as disappearance. In each of these two stories, some element of the actual circumstances being told radically concretizes the legal situation described in the report that led to the specific impact on the woman’s life or the lives of her loved ones described in their story. Through quoting the stories shared in interviews, the Maze

88 Supra note 2, at 6.

232

Report more persuasively informs the reader about the urgency to change the legal

system to better protect Native women.

Similar to the method deployed in the introduction, each of the other chapters of the Maze Report incorporates information shared by support workers, Native women activists, law enforcement, United Nations rapporteurs, and survivors. The use of quotes, primarily derived from interviews by researchers, provides invaluable evidence as applied Felt Theory to support the arguments being made. These stories combined with the other factual and legal information as well as some statistics create a highly persuasive rhetorical situation because the report is utilizing both the pathos appeals of the horrific traumas that survivors have endured as well as logos appeals providing concrete examples where the law has failed Native women. In this way, the stories anchor the reader’s memory about these human rights violations in a way data alone cannot.

What follows will look at the counterstorytelling used in other key parts of the Maze

Report that support the primary recommendations of restoration of Tribal Nation sovereignty and increased allocation of federal resources to fix the unjust maze created by federal Indian law and policy.

B. Legacy of Colonization and Human Rights Violations

The Maze Report provides context for the human rights violations occurring in

Indian Country in the U.S. Chapter two of the Maze Report titled “Legacy of the Past”

provides an overview of the impact of colonization and historical trauma on the treatment

of Native women. Chapter three reframes the present reproductions of structural colonization in terms of international human rights law. The reproduction of failures to protect Native women and normalization of violence arises from a long legacy of

233

colonization that persists in the U.S. The Maze Report reminds readers of the historical traumas that accompanied colonization, including deploying the tactic of rape to subordinate civilizations that Europeans nations wanted to overtake and dispossess of resources.

Chapter two of the Maze Report begins with a quote by the, then Assistant

Secretary of Indian Affairs, Kevin Gover, that remembers the horrific acts of the United

States as “manifest destiny” was enacted through the genocide of millions of Tribal

Nation peoples.

As the nation looked to the West for more land, this agency participated in the ethnic cleansing that befell the western tribes…. After the devastation of tribal economies and the deliberate creation of tribal dependence on the services provided by this agency, this agency set out to destroy all things Indian. This agency forbade the speaking of Indian languages, prohibited the conduct of traditional religious activities, outlawed traditional government, and made Indian people ashamed of who they were. Worst of all, the Bureau of Indian affairs committed these acts against the children entrusted to its boarding schools, brutalizing them emotionally, psychologically, physically, and spiritually…the legacy of these misdeeds haunts us. 89

It is important that the Assistant Secretary explicitly engaged in the kind of truth telling that allows the history that continues to shape the present to come alive again, moving the tactics of whiteness as disappearance into the light. The past persists as a haunting of the horrors that occurred and continue to inform the present. By not covering over the truth of the genocide perpetrated by the U.S. as a fundamental basis of its expansion and economic growth, the Assistant Secretary tears open the wounds that continue to haunt

Indian Country and the legal system.

89 See supra note 2, at 15.

234

Property law itself is an important basis for understanding how the rights of

Native peoples have been dispossessed since occupation of the Americas. 90 The Anglo-

American legal tradition originally viewed women as property of their fathers or

husbands, and rape was originally a property crime. 91 Under the structural framework of

white supremacy, property rights have been disparately accessible for Indigenous peoples

through tactics of dispossession and disappearance, a theory of whiteness as

disappearance makes the normalization of the rape of Native women clearer. Where

Indigenous peoples were viewed as incapable of property ownership, the lands

Indigenous peoples occupied were deemed terra nullius, owned by no one. By logical

extrapolation, the crime of rape of Native women was not a crime at all because Native

men could not own property, and women were either property of their fathers or

husbands. 92 With no fundamental civil legal claim existing, qua rape as a property crime,

there was no future adaptation towards rape as a criminal charge: rape not treated as a

crime at all becomes normalized as part of the fabric of Indian Country. This act of

remembering the history of genocide and these tactics of disappearance opens up the

possibility for transformation and to commencement of working towards restoring what

was lost or decimated by colonization. The Assistant Secretary Gover’s quote powerfully

remembers the central role of colonization and genocide as the persisting trace of the past shaping present conditions in Indian Country. This speech act, cited in the Maze Report, disrupts the silence that hides concrete reproductions of whiteness as disappearance,

90 See my earlier discussion of whiteness as property and its adaptation as a genocidal logics of disappearance explained in Chapter One. 91 See Deer, supra note 1, at 17, 114; Agtuca, supra note 24, at 14. 92 Addressing the layers of heteronormative patriarchy embedded in this property law is beyond the scope of this project.

235

including the rape of Native women as a tactic of continued colonization operative in a

white supremacist genocidal patriarchy.

Chapter two of the Maze Report also introduces sexual violence as a tool of colonial conquest by quoting Jacqueline Agtuca who reminds readers that “Sexual assault rates and violence against Native women did not just drop from the sky. They are a process of history.” 93 This quote precedes the discussion and explanation of the transition

of societal roles of women in Tribal Nation cultures from one of leadership to positions

of subordination; the report directly connects this subordination with the colonization of

Native peoples in the Americas by persons of Western cultural traditions. These

traditions had a longstanding common law practice of treating women as property, not

persons. This objectification of women is exemplified in treating rape as a property

crime. 94 Gender based violence is a form of genocide, and the Maze Report clearly articulates how this genocide persists today in the form of multiple discriminations intersecting in the lives of Native women. 95

Chapter three of the Maze Report articulates how violence against Native women

violates the U.S.’s obligations under the ICCPR, CAT, and CERD. It also highlights how

the Special Rapporteur Rodolfo Stavenhagen’s 2004 report on the situation of human

rights and fundamental freedoms of Indigenous people identified that justice is handled

93 See supra note 2, at 15. 94 See supra, note 1, at 17, 144. The irony is not lost here where the Tenth Circuit’s decision in Gonzales v. Castlerock recognized that Jessica Gonzales did hold a property interest in her protection order against her husband, which was dispossessed without procedural due process when law enforcement refused to enforce it. However, SCOTUS disagreed by reframing the question in terms of whether there was a substantive due process right in a protection order, which was denied. See Michael Mattis, Protection Orders: A Procedural Pacifier or a Vigorously Enforced Protection Tool: A Discussion of the Tenth Circuit’s Decision in Gonzales Castle Rock, 82 Denv. U. L. Rev. 519, 531-32 (2005). 95 See supra note 2, at 16.

236

more effectively in Indigenous communities where the peoples’ customary Indigenous laws are respected.

The widespread lack of access to the formal justice system due to ingrained direct or indirect discrimination against indigenous peoples is a major feature of the human rights protection gap… Given the discrimination existing in the national judicial systems it is not surprising that many indigenous peoples distrust it and that many ask for greater control over family, civil and criminal matters… 96

This passage is located in the body of the text, placing emphasis on its words for the reader. This passage sets up the discussion about Tribal Nation jurisdiction in the next chapter by emphasizing the importance of remedies that are carried out by Tribal Nations themselves. Chapter three also points out that the U.S. signed CEDAW but did not ratify it. This failure to ratify results in no international enforcement authority over U.S. failures to protect the rights of women enumerated in this declaration. Further, the Maze Report highlights that the U.S. is one of the two members of OAS that has not ratified the Inter-

American Convention on the Prevention and Eradication of Violence Against women. It is in this context that the Maze Report highlights the intersection of multiple sources of discrimination.

For Native women, multiple discriminations occur in terms of race, gender, and sovereignty. This discrimination most often occurs as indirect, disparate impacts, protections that the SCOTUS has held are not actionable substantive due process rights violations under the reverse incorporation of the due process clause of the Fourteenth

Amendment. For SCOTUS, discrimination on the basis of race or gender must occur by a state actor, and there must be proof of an individual intending the discrimination; further, as the Gonzales decision made clear, SCOTUS is unwilling to recognize the creation of a

96 See supra note 2, at 21.

237

property interest by state laws as an enforceable procedural due process right violation.

However, it is no accident that Jessica Gonzales’ identities as a Latina and Native woman

were made invisible in the SCOTUS opinion.97 That is, disparate impact concretely resulting in dispossession of the property interest in a protection order, or violence upon a

certain group is insufficient to hold the U.S. government accountable. This kind of justice

gap is precisely why the Maze Report was a critical part of pressuring Congress to enact

legislation.

The Maze Report highlights that according to a 2006 report by the International

Indigenous Women’s Forum (FIMI), Indigenous women “are discriminated against not

only as women ‘but as Indigenous Peoples’.”98 This quote emphasizes the intersecting

bases of race, gender, and sovereignty as multiple sources of discrimination that make the

experiences of Native women unique. Remedies for protecting Native women in the U.S.

must consider, consult, and incorporate the unique perspectives of the women that face

these multiple discriminations rooted in a long history of colonization, including the

dispossession of property similar to the property interest of Jessica Gonzales in her

protection order. The Maze Report embodies this process and emphasizes the concrete

experiences of Native women who have suffered harm.

97 The opinion itself makes no mention of Jessica’s identity as a woman of color who is Latina and Native American. Gonzales, 545 U.S. at 748. Jessica self-identified as a “Latina and Native American woman” in her testimony to the IACHR. The importance of naming disparate impact was made clear in the IACHR decision; however, the decision was for all intents and purposes unenforceable. Jessica Gonzales, Jessica Gonzales’ Statement Before the IACHR, ACLU (Nov. 9, 2020 8:10 PM), https://www.aclu.org/other/jessica-gonzales-statement-iachr. 98 Supra note 2, at 25.

238

C. Remedies for U.S. Human Rights Violations in Indian Country: Tribal Nation Jurisdiction Restoration and Allocation of Federal Resources

The Maze Report makes clear the solution for the U.S. to meet its affirmative

obligations to federally recognized tribes under customary international law (CIL) is

relatively simple: restore Tribal Nations’ jurisdiction over non-Indians and restore its sentencing authority limited under the Indian Civil Rights Act (ICRA). 99 Doing so would

serve as a first step towards taking remedial measures to correct the disparate harms

perpetrated against Native women by failing to provide adequate remedies where the

rights to effective remedies, life, and self-determination have been violated. By clearly

articulating the jurisdictional maze created by federal Indian law in ordinary, accessible

language, the report clearly maps out the state of legal affairs and public policies that

gave rise to these human rights violations. Chapters four and five of the Maze Report

most clearly utilize this form of popular education pedagogy to reach a broad audience

and increase collective consciousness about why these problems exist in Indian Country

as a result of jurisdictional and policing restrictions.

99 This complex legal maze also was addressed in detail in Chapter Two. See Chapter Two, §§ Modern Series - Theme of Seven Cases: Diminishment of Sovereignty, Rhetorical Dispossession in Oliphant.

239

100 Table 5. Criminal Jurisdiction in Indian Country580F

PARTIES COURTS’ JURISDICTION

VICTIM DEFENDANT TRIBAL FEDERAL STATE

INDIAN INDIAN Yes, any Indian ● Maybe under MCA No. Unless PL 280 committing crime in ● No under ICCA, state or other grant of Indian Country not interracial jurisdiction. ● Yes as general crimes

INDIAN NON-INDIAN No, may not ● No MCA with No. Unless PL 280 prosecute non-Indians non-Indian D state or other grant of (except under VAWA ● Yes ICCA, jurisdiction. SDVCJ) interracial ● Yes as general crimes

NON-INDIAN INDIAN Yes, any Indian ● Maybe under MCA No. Unless PL 280 committing crime in ● Yes ICCA, state or other grant of Indian Country interracial jurisdiction. ● Yes as general crimes

NON-INDIAN NON-INDIAN No, may not ● No under MCA, Yes, states have prosecute non-Indians non-Indian D jurisdiction over all ● No under ICCA, non-Indian crimes not interracial against non-Indians, ● Yes as general including Indian crimes country

Despite Tribal Nations possessing inherent sovereignty, which fundamentally cannot be eliminated by another sovereign despite the U.S. historically treating it as such, common law practices in federal Indian law have limited the actual exercise of this sovereignty. The resulting jurisdictional maze is highlighted in Table 5, which signifies how jurisdiction (most often the power of a court to hear a case) may only be exercised depending on both the location of the crime (true for every sovereign) as well as the identities of the perpetrators and victims (true only for Tribal Nations). In the current

100 Table 5 was adapted from Professor Melissa Tatum’s chart distributed in her course, Native American Law & Policy, Fall 2018.

240

state of federal Indian law and policy, Congress must pass legislation that would effectively “restore” tribes’ inherent sovereignty to hold perpetrators of violent crimes accountable in Indian Country, post-Oliphant.101 The Maze Report asked for precisely this legislative change with regard to protections for Native women and was highly influential on changing the minds of decisionmakers to pass both the TLOA and the

VAWA 2013 tribal provisions representing the greatest restoration of sovereignty since

1978.

The Maze Report makes clear that both restoration of tribes’ jurisdiction over non-Indians and the capacity to impose sentences commensurate with the crime are necessary for the U.S. to meet its obligations to protect Native women from human rights violations under international law. It also recommends that the U.S. government remedy the human rights violations of Native women by allocating additional resources to Tribal

Nations to support capacity building needed to ensure that international human rights are affirmatively protected in Indian Country. By framing its recommendations in this way, it reaffirms the sovereignty of Tribal Nations, not the U.S. government’s capacity to exercise jurisdiction in Indian Country. However, the report does not explicitly mention sovereignty. As Tatum and Hendry point out in several cases of other Indigenous activism, “advocates kept the focus on individual Native women and used the language of human rights to shame the U.S. government into action.”102 This strategy of focusing on

101 Oliphant v. Suquamish, 435 U.S. 191 (1978) (holding that tribes do not have criminal jurisdiction over non-Indians perpetrating crimes in Indian country where allotment era policies allegedly never intended Tribal Nations to exercise jurisdiction over non-Indians). Please also note that any legislation must include significant funding appropriated for Indian Country to increase the legal infrastructure of tribes to hold perpetrators accountable for the harms inflicted, but this research is beyond the scope of this paper. The TLOA includes the legislative intent to build tribal infrastructure so there is a strong argument that proceeding in this direction is in alignment with Congress’s past legislative intent. 102 Supra note 9, at 381.

241

individual rights in a way that pressured members of Congress to vote for VAWA 2013

proved to be a highly effective strategy by Native women activists.

IV. Conclusion

Through the Maze Report’s techniques of counterstorytelling about the genocide against Native women, it carved out justice for Native women by shaming the U.S. to remedy these human rights violations. The report achieved its purpose of being broadly accessible to diverse audiences globally. 103 It achieved what the SCOTUS nor the

IACHR could to transform access to justice for Native women.

While the term “sovereignty” is never mentioned, the Maze Report articulates

the ways in which Native women’s sovereignty as respected and honored members of

Tribal Nation societies, altered and dispossessed as part of conquest. As Jacqueline

Agtuca has pointed out, there are no words for “feminism” in the languages of

Indigenous peoples in the U.S.; this fact is evident where “words cannot be found within

the languages of the first peoples of what is known to many as Turtle Island.” 104 The

implication is that patriarchal norms of European societies did not exist in Tribal Nations

prior to conquest; these norms were adopted by the U.S. legal system and continue to

oppress Native women today as a modern version of colonization. Colonization of Native

women links with the tactics of disappearance in a white supremacist system where

Native peoples do not enjoy the same property rights as whites; the SCOTUS ruling made

clear that Jessica Gonzales, a Latina and Native woman, did not have the property rights

to a protection order mandated by state law. In effect, she was dispossessed by SCOTUS

103 Supra note 2. 104 Supra note 24, at 14.

242

of property interest by SCOTUS’s refusing to recognize her procedural due process rights

being violated. The converse side of this demented coin is that Native women were and

continue to be reduced to objects in alignment with Anglo-European norms of treating

women as property. Native women, thereby, experience dispossession on three fronts:

race, gender identity, and sovereignty. 105 This legacy persists in present day legal policies

in Indian Country because of the complicated maze of jurisdiction created by the

SCOTUS and Congress. Native women’s bodies and souls were colonized at first contact

with Europeans, and their sovereignty dispossessed by these genocidal processes. The

Maze Report makes clear that justice requires the restoration of jurisdiction for Tribal

Nations and the availability of resources to actually effectuate this restoration. Justice for

Native women is inextricably tied to their sovereignty as citizens of Tribal Nations.

The Maze Report uniquely achieves its purpose by deploying Indigenous Feminist

Pedagogy to make clear to broad audiences the injustice of violence against Native

women not only in terms of Tribal Nation jurisdiction, but also in terms of how

colonization persists in the U.S. through federal Indian law and policies. The Maze

Report captured international media attention and had the effect of “shaming” U.S. legislators into acting to reform federal policies in Indian Country. 106 Its features of

drawing upon persons directly impacted by these laws and policies effectively persuaded

lawmakers that doing anything other than changing public policy would be

unconscionable. The Maze Report succeeded where the IACHR recommendations to

reform policies disparately impacting women, especially women of color, and children

105 Supra note 1, at 17, 114. 106 Supra note 9, at 381. See also Roth, supra note 77.

243

could not. It remains a paradigmatic example of Indigenous Feminist Pedagogy that can reach broad audiences and effectively change the legal system.

244

Conclusion Critically Sovereign Indigenous Feminist Pedagogy: Disorienting Literacies of Disappearance

“The classroom, with all its limitations, remains a location of possibility. In that field of possibility we have the opportunity to labor for freedom, to demand of ourselves and our comrades, an openness of mind and heart that allows us to face reality even as we collectively imagine ways to move beyond those boundaries, to transgress. This is education as the practice of freedom.” ~bell hooks1

I. Articulations of Indigenous Feminist Pedagogy

The genocide of rape is the ultimate silencing of Native women; rape and other

forms of violence perpetrated against Native women are interwoven modes of power,

dominance, and violation implicated in white supremacy. Discursive exclusion is one

mode operating by fixing conceptions of “Indian” in federal law that allows structural

whiteness as disappearance. Violence against Native women is a concrete tactic of white

supremacy shaped by the logics of whiteness as disappearance: objectification and

disappearance of Native women perfected by the violence perpetrated primarily by non-

Indians. This tactic has manifested as part of a long history of the rape of Indigenous

women practiced globally as a method for decimating, amalgamating, and oppressing

colonized communities. 2 Acts of sexual violence treat the person as a means to a sexual end, traumatizing not only the physical body but also the spiritual and mental bodies of the person. This violence exists in a framework bolstered by a white supremacist genocidal patriarchy, the ultimate right to include or exclude, reducing Native women to their physical bodies qua objects. The movement for the safety of Native women fights to

1 bell hooks, Teaching to Transgress: Education as the Practice of Freedom 207 (1994). 2 A. Smith, Conquest: Sexual violence and American Indian genocide, at Chapter 7 (2005).

245

counter these tactics of disappearance. The creative innovation and persistence of Native

women in the VAWA movement that began in the 1970’s and continues today in the

Missing and Murdered Indigenous Women and other coalitions is undeniable and has led

to a number of victories including the only significant restoration of tribal sovereignty

since Oliphant. 3 Indigenous Feminist Pedagogy has the potential to turn unexpected spaces into virtual and nontraditional classrooms for transgressing reproductions of white supremacy.

Over the course of more than four decades, Native women activists mobilized

across the United States to bring awareness to the failure of the U.S. to protect Native

women from violence. While this movement has taken many forms, including protests,

lobbying, popular media campaigns, and legal activism in U.S. courts, a consistent set of

pedagogical features has arisen with this activism. Mary Kathryn Nagle’s Sliver of a Full

Moon (Sliver) and Amnesty International’s Maze of Injustice: The Failure of the U.S. to

Protect Native Women report (Maze Report) stand out from this work because of the

ways they embody features of this movement as Indigenous Feminist Pedagogy with a

capacity for reaching broad audiences. This project analyzed each case study for how it

teaches audiences about the interconnectedness of race, gender, and sovereignty; these texts do so in a way that articulates the power of Native women to restore inherent sovereignty through a uniquely Indigenous Feminist Pedagogy.

3 435 U.S. 191 (1978) (holding that tribes do not have criminal jurisdiction over non-Indians perpetrating crimes in Indian country where allotment era policies allegedly never intended Tribal Nations to exercise jurisdiction over non-Indians).

246

This project analyzed these case studies by applying the theoretical lens of critically

sovereign feminist methodology (CSFM), 4 recursively derived from the articulations themselves and defined as a theoretically grounded research method that

(a) acknowledges that the sovereignty of Native women is inextricably tied to the sovereignty of Tribal Nations and centers inherent sovereignty in all aspects of analysis; (b) challenges the tactics of disappearance illuminated by the lens of whiteness as disappearance as strategies of a structurally racist legal system aiming to assimilate Native peoples; (c) challenges traditional research paradigms that make invisible the white supremacist genocidal patriarchy; (d) offers a popular education remedy through counterstorytelling to genocidal tactics as well as race- and gender-based subordination (Indigenous Feminist Pedagogy); and (e) focuses on the sovereign, raced, and gendered lived experiences of Native women as critical sources of expertise and power for transforming legal systems via popular education.5

Critically sovereign feminist methodology provides a foundational framework for

challenging the structural white supremacist tactics of disappearance, racist tactics that

continue to assimilate and disappear Native peoples in the U.S. through genocidal logics.

CSFM names the white supremacist structure as genocidal in its relationship to Tribal

Nations and its citizens while also providing a practical solution for disorienting this

structural racism through popular education. Each of the case studies articulates features

unique to Indigenous Feminist Pedagogy in slightly different ways. Sliver does so

through live performances where survivors share their own stories.

Analysis of Sliver using CSFM in this project revealed its clear memorialization

of some of the strategies of Indigenous Feminist Pedagogy. Through counterstorytelling

4 This methodology was more completely explained in Chapter One. 5 See Chapter One, § Features of a Critically Sovereign Feminist Methodology.

247

enacted as performance on the stage, both storyteller and audience are transformed; theory becomes praxis and praxis becomes theory. These stories center sovereignty and raise critical consciousness of audiences about colonization and its continued concrete impact on the lives of Native women. Using a significantly different textual medium,

Amnesty International’s Maze Report similarly articulates features of Indigenous

Feminist Pedagogy.

Like Sliver, the Maze Report also utilized stories to add feeling and depth to the statistics documenting violence against Native women. The Maze Report reached broad audiences throughout the world by using the power of shaming to persuade lawmakers to enact legal protections for Native women. It centers the stories of violence perpetrated against Native women to create a highly persuasive rhetorical situation for raising critical consciousness of these injustices for its readers. Both Sliver and the Maze Report primarily deploy counterstorytelling to mobilize audiences to act.

Both articulations, Sliver and the Maze Report, have the power to bring audiences into the present moment, into their feeling bodies, if audiences are able and willing to empathize with the storytellers or identify with the trauma itself, breathing life into otherwise technical legal information through using truth telling in rhetorically powerful ways. Through stories and dynamic genres written in everyday language for broad audiences, Sliver and the Maze Report were able to function as highly persuasive texts of legal activism. These articulations of the movement for the safety of Native women changed hearts and minds across the globe through the praxis of counterstorytelling as an integral feature of a critically sovereign Indigenous Feminist Pedagogy. Table 6 below summarizes the various ways each articulation embodies this CSFM.

248

Table 6. Articulations of Critically-Sovereign-Feminist-Methodology-Informed Pedagogies in Case Studies

Critically Sovereign Feminist Articulations of Informed Pedagogies Methodology Sliver Maze Report Native women sovereignty • References to pre- • VAW is remnant of inextricable from Tribal Nations’ occupation cultures colonizers inherent sovereignty. & honored place of • Rape is tactic to Native women amalgamate & • Restoration of decimate Native sovereignty via peoples VAWA 2013 was • Restoration of Tribal partial solution sovereignty is solution

Disorients tactics of disappearance • Survivors share • Stories of survivors and qua whiteness as disappearance as stories deceased shared strategies of structural racism. • Survivors identify as • U.S. statistics bolster citizen of Tribal Native women’s stories Nations • VAW is historical • Time disrupted product of U.S. law through education in present and persistence since time immemorial Challenges traditional research • Survivors speak • Survivors or loved ones paradigms that made invisible themselves of deceased white supremacist genocidal • True histories told interviewed patriarchy. • Stories of genocidal • Genocidal jurisdiction told jurisdictional maze explained • Accessible language used Indigenous Feminist Pedagogy: • Live performance • Accessible language popular education remedy through engages audience in used counterstorytelling. Stories of present • Potential for inciting survivors who experience the • Survivors share empathy- pathos of “texture and dimension” of the stories- pathos & stories 6 legal harms. ethos appeals • Stories of survivors/ • Community members deceased anchor perform memory & fill data gaps Sovereign, raced, and gendered • Survivors provide • Experts are survivors lived experiences of Native women expert information and loved ones of centered as expert sources of • Identities constructed deceased interviewed knowledge and power for with cultural identity, • Interviewee quotes transforming legal systems. sovereignty, and centered in text gender • Centering of race, gender, and sovereignty

6 Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America 15 (2015).

249

This CSFM is a demonstration of what Kathy Charmaz considers constructing a

“grounded theory.” 7 Charmaz explains that “[g]rounded theory methods consist of a systematic approach to qualitative inquiry for the purpose of theory construction.”8 This process of articulating CSFM aligns with Charmaz’s recent adaptation of grounded theory, which she explains as a “[c]onstructivist grounded theory (CGT) [that] follows the inductive, emergent, open-ended, and iterative approach of Glaser and Strauss’s first statement of the method but goes further. CGT integrates developments in qualitative inquiry over the past 60 years and, moreover, treats data and theorizing about these data as constructed, not discovered.” 9 The two case studies in this project served as data around which this project constructed its CSFM, an articulation of a constructivist grounded theory for other activists to utilize.

Through application of a CSFM to each of these case studies, the capacity of these kinds of popular education texts to influence collective consciousness and public policy was made clearer. Both articulations of Indigenous Feminist Pedagogy utilize the stories of Native women to broadly engage audiences of both lay persons and legal professionals. Through processes of connecting with audiences through stories, audiences across the globe were invited to share in the suffering of harms experienced by Native women because of an unjust U.S. legal system. The counterstorytelling embodied and enacted in both case studies engaged and transformed audiences’ minds, bodies, and spirits, in part, through the emotions invoked in learners. Also, the legal knowledge

7 Kathy Charmaz, Constructing Grounded Theory (2nd ed., 2014). 8 Kathy Charmaz, Special Invited Paper, 16.1 International Journal of Qualitative Methods 1, 1-2 (2017). See also Anselm Strauss and Juliet Corbin, Grounded Theory Methodology: An Overview, in Strategies of Qualitative Inquiry (Norman K. Denzin & Yvonna S. Lincoln, eds., 1998). 9 Supra note 8, at 2.

250

contained in these case study texts was accessible in a way that most legal opinions,

including the Gonzales v. United States 10 Inter-American Court of Human Rights

opinion, was not. Whereas the Gonzales opinion is presented in a genre that speaks to

experts in international human rights law, it is a failure rhetorically in terms of reaching

broad lay audiences, despite being a success legally. In contrast, both Sliver and the Maze

Report engaged lay audiences as well as legal audiences; while judges and

Congresspersons were likely targeted audience members for both case studies, literacies

of disappearance were built equally rapidly with lay audiences because of the

accessibility of the content. This broad reach allowed these texts to circulate broadly to increase literacies of disappearance.

The articulations in these case studies and others like them inspired and energized a broad movement beyond Indian Country in alliance across partisan divides for partially restoring sovereignty to protect Native women. The features of these texts can be replicated by other activists to continue to transform the relationships between Tribal

Nations and the U.S. government. This grounded CSFM can be utilized to guide future empirical research about activism building literacies of disappearance, particularly because the criteria described in Table 6 above can be used to explain both why Sliver and the Maze Report were successful in achieving their purposes, whereas the Gonzales opinion in the IACHR was not successful in doing the same.

10 Report No. 80/11, Case 12.628, Merits, Jessica Lenahan (Gonzales) et al. July 21, 2011, Jessica Gonzales v United States: Case Documents & Amicus Briefs, Columbia Law School Human Rights Clinic 43 (Nov. 10, 2020 7:19 AM), https://web.law.columbia.edu/human-rights-institute/inter-american-human-rights- system/jessica-gonzales-v-us/gonzales-case-page.

251

II. Future Application of Critically Sovereign Indigenous Feminist Pedagogy

By centering the voices of Native women, Sliver and the Maze Report articulate the ways in which forms of Indigenous Feminist Pedagogy raise critical consciousness about how the sovereignty of women is inextricable from Tribal Nations’ sovereignty.

These pedagogical articulations of how to disorient the white supremacist genocidal patriarchy provide a potential roadmap through critically sovereign feminist methodology

(CSFM) for how to strategize and structure activism to disrupt tactics of disappearance.

That is, white supremacy in the U.S. as it relates to Native peoples is shaped by structural tactics that flow from whiteness as disappearance, exclusive or inclusive property rights effecting disappearance of Native peoples. Indigenous Feminist Pedagogy uses CSFM to disorient whiteness as disappearance and to restore justice for Native peoples. Core to this pedagogy is the use of truth telling rooted in Native women’s identities as women, as citizens of sovereign nations, and as women of color. By enacting the strategies articulated in Sliver and the Maze Report, future activism can also reach broad audiences and transform relationships between Tribal Nations and the U.S. government.

A. Indigenous Feminist Pedagogy for Building Literacies of Whiteness as Disappearance

These findings facilitate naming the ways Native women are building new literacies of whiteness as disappearance in terms of both how it is constructed and re- constructed by white supremacist genocidal patriarchy as well as how it can be disoriented. These literacies for changing the legal system and public policy are not tethered merely to written literacies in the ways that legal literacies most often are.

Instead, these pedagogies build literacy through a variety of modes including

252

performance, speech, written texts, and other enactments in the living present by both

authors and audiences; these multimodal literacies transform storytellers, participants,

and audiences. In the spirit of what Stephanie Troutman has named “Feminist

Pedagogical Media Literacy,” this Indigenous Feminist Pedagogy builds literacies as

“tools for reading the world”11; more specifically, these tools allow for reading the white

supremacist genocidal patriarchy that reproduces whiteness as disappearance for Native

women. Strategic counterstorytelling is the primary tool for building these literacies.

B. Counterstorytelling for Building Literacies

The most salient thread in both case studies demonstrating a critically sovereign

Indigenous Feminist Pedagogy is counterstorytelling because of its power to re-construct

Native women’s identities as persisting, sovereign citizens of sovereign Tribal Nations.

One way to begin to formalize theory from lived experiences is storytelling. Stuart Hall’s conception of the construction of identity through “narrativizing” the self is based in postmodern epistemology, arguing that “[i]dentities are therefore constituted within, not outside representation.”12 Thereby, when Native women share their own counterstories of

what it means to be Native women survivors of violence, they are constructing the

category of “Indian” anew, disrupting genocidal tactics of the “disappearing Indian.”

That is, Native women’s identities are constructed by Native women themselves,

disrupting homogenizing and disappearing rhetorical tactics of being “Indian.” This

construction of identity is “a process never completed--always ‘in process’.” 13 With this

11 Stephanie Troutman, Analog Girls in a Digital World? Instructional Practice Through Feminist Pedagogical Media Literacy, 4.1 Girlhood Studies 136, 146 (2011). 12 Stuart Hall, Who needs ‘identity’?, in Identity: A Reader 2 (2000). 13 Hall, supra note 12, at 2.

253

orientation, the value of literacy insofar as it allows persons to “narrativize” difference

and prove persistence, offers a powerful constitutive and revisionary process.

Articulations of Indigenous Feminist Pedagogy deploy critically sovereign feminist

methodology to increase literacies of and disorient white supremacy that reproduces

disappearance of difference between Tribal cultures and disappearance of Native peoples

as Native peoples through genocide and assimilation. Native women also disorient the

disbelief and denial that violence against Native women occurs in Indian Country in

pandemic proportions. Activists seeking to further transform the relationships between

Tribal Nations and the U.S. government can utilize this critically sovereign Indigenous

Feminist Pedagogy to further expand literacies of whiteness as disappearance in a variety

of ways.

i. Broadly Accessible and First-Person Stories in the Living Present

Other activists can deploy counterstorytelling across many possible modes for building literacies of disappearance, ranging from performative creations to written reports. What matters is not the mode or medium, but the ways in which storytelling and restorative concepts are utilized. Through storytelling of survival, Native women raise critical conscientization about the structural backdrop against which the harms impacting

Native women have remained invisible. By using everyday language, survivors sharing their stories concretely educate broad audiences by making the complexities of federal

Indian law accessible in a way that makes information digestible as well as easily circulated and shared; everyone and anyone, lawyer or layperson alike, can make sense of otherwise confusing case law and special jurisdictional considerations at play. When stories provide concrete, real life examples of legal complexities, broad audiences,

254

regardless of legal background, understand these complexities better. Then, because of

the ways in which information is accessible and portable, audiences can then easily share

this information with others by retelling stories shared, expanding the reach of

pedagogical articulations. Further, the application of Felt Theory in these articulations,

brings audiences into the present moment of their feeling bodies. Feelings anchor

memory, ensuring the educational content is remembered. The horrors of violence against

Native women enact a kind of “pedagogical violence” 14 that transforms audiences as

learners; further, some learners relate through identification with similar trauma, and

other learners with a strong moral conscience will feel shame for their complicity in the

reproduction of this violence through U.S. legal policies.

Whether in person at a performance or reading a written text at some self-selected time, the case study articulations embody a radical capacity to evoke emotion from empathetic audiences. Survivors share their deepest vulnerabilities by sharing the harms perpetrated against them. Through this orientation of vulnerability, survivors both process the harms perpetrated, and invite audiences to share in the harm perpetrated against

Native communities. This radical process of sharing through the vulnerability of trauma relived, connects with audiences in a uniquely powerful way that often facilitates audiences internalizing the information in a long-lasting way. The pain of the harm is shared and etched into the audience’s memory. The potential to invoke shame or other emotions in audiences who purportedly advocate for justice, especially lawmakers, can collectively raise critical consciousness about the injustices in Indian Country in powerful ways. Stories told by the person who lived the harm possesses the most powerful

14 See Chapter Four discussion in § Introduction. Lynn Worsham, Going Postal: Pedagogic Violence and the Schooling of Emotion, 18.2 JAC: A Journal of Composition Theory 213, 215 (1998).

255

potential not only for invoking an empathetic response from audiences but also for

building a highly credible basis for counterstorytelling that builds literacies of

disappearance while also disrupting it.

ii. Speaking Truth, Embodying the Power of Ethos, and Strategically Constructing Identities

The disappearance of the harms perpetrated against Native women is countered by the sharing of stories of survival by survivors themselves. When Native women survivors of violence share their stories of trauma, there is little potential for the veracity of the content to be challenged or made invisible. Survivors themselves possess the sole authority over their own stories, their own truth. Where statistical reports or factual bases given in a court of law may be contested, when a survivor of domestic or sexual violence shares their story, audiences are often brought into the present moment and gain understanding through a powerful experience of empathy that builds an unrivaled ethos appeal with the audience. Challenging the veracity of a victim is largely viewed as calloused and shameful in most cultures. Whereas survivor storytelling may occur during courtroom trials or testimony given at congressional hearings, the location of the storytelling is not the most critical feature; in this respect, the medium is not as important as the ways in which stories are shared and how the strategic language deployed constructs identities of Native women.

Critically sovereign Indigenous Feminist Pedagogies harness the power of storytelling through strategic construction of Native women’s identities. It does so in three important ways: by identifying the citizenship status of the speaker, by speaking in the Tribal Nation’s “native” language, and by emphasizing the sovereign status of women

256

as citizens of Tribal Nations possessing inherent sovereignty. Native women activists disrupt the category of “Indian” by identifying themselves according to their status as citizens of Tribal Nations.

Pedagogies informed by CSFM disrupt genocidal tactics of white supremacy through reclaiming of Tribal Nation identities, covered over by fictionalized categories of

“Indian” operative in administrative law and popular culture. Activists should disrupt the reproduction of disappearance by not using the category “Indian” to construct identities of Native women. The category “Indian” eliminates cultural and linguistic differences and homogenizes Tribal Nations. When Native women speakers self-identify according to their citizenship in a Tribal Nation, they remind audiences of the inherent sovereignty of their nation as well as the cultural differences between Tribal Nations throughout the

U.S. Speaking the language of one’s Tribal Nation also disrupts the homogenizing tactics of the category “Indian.” Native women identifying themselves by referencing their citizenship in a Tribal Nation and using their culture’s language restores popular conceptions of Native identities as culturally distinctive communities.

Tribal Nations’ languages are a critical aspect of cultural sovereignty. Cultural distinctiveness and its preservation are represented primarily through speaking a language specific to one or a few Tribal Nations. When Native women construct identities by speaking the language unique to their nation, disappearance of the unique and distinctive cultural identity of their sovereign nation is preserved. Native women activists most often preserve persistence of their Native language by introducing themselves and sharing their name as spoken in this language. Equally powerful is naming the critical role that Native women play in the continuance of inherent sovereignty for Tribal Nations.

257

From an essentialized perspective, Native women qua potential mothers to the future citizens of Tribal Nations play a pivotal role in the future of all Tribal Nations.

Indigenous Feminist Pedagogy emphasizes the critical role of women in the continuance of Tribal Nations. By educating audiences about the tactics of disappearance through rape and other violence perpetrated since occupation of the Americas, activists disorient the ways in which these tactics continue to be operative. Naming these genocidal practices as an attack not only on individual Native women but on Tribal Nations as a whole raises critical consciousness about how what appears to be random acts of non-Indian violence are actually part of a structural schema of disappearance.

Activists seeking to further transform the relationships between Tribal Nations and the U.S. government should utilize the tactics of Indigenous Feminist Pedagogy to reach large populations of people committed to restoring justice to raise critical consciousness about white supremacist genocidal patriarchy and its impact on Native women. Whereas disinformation or lack of data could allow these tactics of disappearance to be reproduced, critically sovereign methods can transform these structural forms of oppression. Native women activists have enacted a means to transgress tactics of disappearance shaping the U.S. legal system’s relationships with

Tribal Nations.

III. Limitations of this Project

This project was limited in several ways. Most significant was the lack of interviews with Native women activists, storytellers, and survivors to determine the degree to which the strategies embodied in these two case studies and elsewhere were

258

self-reflexive and coordinated. The project also lacked consideration of the ways in which the two case studies circulated across and within various discourse communities.

Lastly, the methodology itself failed to critically examine the essentialization of the construction of the gender identity of Native women. What follows briefly examines each of these limitations.

A. No Interviews with Native Women Activists and Storytellers

The findings in this project were limited to analyses of the articulations of the two case studies, Sliver and the Maze Report. While neither articulation could be said to be attributed to a sole author, each case study was primarily authored by a Native woman lawyer. Mary Kathryn Nagle, who is both a playwright and lawyer specializing in legal work supporting restoration of Tribal Nation sovereignty, authored Sliver shortly after speaking with her future law partner who is also committed to legal work restoring tribal sovereignty.

Certain elements of this Sliver analysis might have been confirmed or disavowed based on conducting interviews with the playwright or cast members. In particular, the selection of venues as a potentially intentional act of circulating the performances in spaces where future lawmakers are likely to participate could have bolstered the analysis that it intended to disrupt the reproduction of white supremacist genocidal patriarchy by seeking out venues where students at the top tier law schools would likely be audience members. Through interviews, the range of venues as well as how they were selected and/or arranged would have potentially illuminated the self-reflexive nature of the strategies deployed by Native women. Interviewing Nagle also could reveal the ways in which she selected community members to participate in performances. Most

259

importantly, by engaging in direct conversation with the playwright and performers who

are primarily Native persons, the likelihood of creating a framework that ascribes non-

Indian worldviews onto Native persons could be better mitigated. However, these

limitations were mitigated in a number of ways.

Analyses of the recorded performances at Yale and Harvard as well as the

discussions afterward provided significant additional information about the strategies

embodied in these performances. In addition, several interviews with Nagle were

available and analyzed for consideration of her own self-reflective process as a playwright in general. This project also intentionally derived its methodology, CSFM, by recursively examining the case studies first to identify features in common as well as differences between them. Interviewing the primary author of the second case study, the

Maze Report also would have enhanced understanding of the self-reflexivity and strategic planning relating to enacting these pedagogies.

Sarah Deer primarily authored the Maze Report, which Amnesty International commissioned the Tribal Law and Policy Institute to research and write. 15 Native women

were interviewed to add their expert knowledge about violence against women in Indian

Country to the report. Whereas these women’s stories were memorialized in the report

itself, little is known about the process of how women were selected for interviews or

why certain stories made it into the report. Whereas Deer articulates methodologies in her

scholarly work in alignment with what is articulated in the Maze Report, her reasons for

what was included in the report were not confirmed through direct dialogue with her.

15 Supra note 6, at 100.

260

However, the articulation of Indigenous Feminist Pedagogy in the Maze Report stands on its own as articulated and memorialized in the report itself.

Better understanding the choices specific to the creation of each of these case studies through interviews presents an area of future empirical study that could flesh out the work begun here through construction of CSFM. However, the kinds of empirical analyses that might arise from such interviews were not yet possible without the requisite theoretical foundation that this project provides as a constructivist grounded theory.

Having this basis, future research can now more specifically explore concrete implications better understood through the lens of CSFM.

B. Analyses of Case Studies’ Circulation

Sliver and the Maze Report both articulated pedagogies that were broadly accessible to lay audiences and legal professionals. Their highly persuasive pedagogical content resulted in their broad circulation among legal and lay audiences; the rhetorical effectiveness of these texts should be considered through the lens of the threshold concept of circulation. Whereas legal cases such as Gonzales v. United States 16 are limited in their transformative impact because these kinds of legal opinions only circulate among expert legal audiences, these two case studies circulated far and wide to broadly educate and create publics beyond specialized and technical audiences.

Laurie Gries explains how “the concept of circulation has been less an explicit focus of study than an assumed phenomenon undergirding much rhetorical theory.”17 However,

16 Supra note 10. 17 Laurie Gries, Introduction: Circulation as an Emergent Threshold Concept, in Circulation, Writing, and Rhetoric (Laurie Gries & Collin Gifford Brooke, eds., 2018).

261

the idea of circulation is inextricable from conceiving of publics; Michael Warner explains that

[a] public is the social space created by the reflexive circulation of discourse…public is understood to be an ongoing space of encounter for discourse. Not [sic] texts themselves create publics, but the concatenation of texts through time. Only when a previously existing discourse can be supposed, and when a responding discourse can be postulated, can a text address a public. …anything that addresses a public is meant to undergo circulation.”18

A series of interconnected events in time where texts are “read” or viewed, understood, and shared again constitutes the process of circulation whereby texts reach broad public audiences. Gries considers circulation to be a threshold concept that because it “evolves as the disciplinary knowledge evolves.”19 She offers her own work as an example of how she introduced a digital research method that could “empirically account for an image’s widespread and unpredictable circulation, transformation, and consequentiality.”20 Gries argues that by tracing the flow and distribution of images, “we cannot help but tune into the dynamic dimensions of rhetoric—to see rhetoric as a distributed event that unfolds with time in and across networks of emerging relations…to rhetoric’s affective dimensions.”21 Examining the threshold concept of circulation can better explain how texts, images, performances, and other modes of rhetoric reach broad audiences for the greatest pedagogical transformation of publics through invoking emotion, inspiration, and learning that is relationally shared amongst persons and across spaces.

18 Michael Warner, Publics and Counterpublics 90-91 (2005). Mary Stuckey also explains that the “logics of circulation are fundamental to the study of public address.” Mary E. Stuckey, On Rhetorical Circulation, 15:4 Rhetoric and Public Affairs 609, 609 (2012). 19 Supra note 17, at 5. 20 Supra note 17, at 9. 21 Supra note 17, at 9.

262

Warner also offers the insight that “[a]ny organized attempt to transform gender

or sexuality is a public questioning of private life, and thus the critical study of gender

and sexuality entails a problem of public and private in its own practice.”22 Transforming

violence against Native women requires making the deeply personal and taboo topics of

sexual and domestic violence available for wide circulation by publics. This aspect of the

rhetorical power of the two case studies in this project has not yet been examined, but it is

an important area of research that could better explain the concrete impact that these case

studies had on publics.

Analyses of the circulation of these articulations could have enriched

understanding of how these pedagogical methods result in this content being internalized

by audiences and shared with others. Research and analysis in this area could add a richer

understanding about how the kinds of media utilized in these case studies were taken up

by audiences and electively circulated. However, the scope of this project was

intentionally limited to analyzing the processes within the case studies themselves to

construct a grounded CSFM without regard to how they circulated within and across

discourse communities.

C. Indigenous Feminist Pedagogy is Cis-gender- and Hetero-centric

The methodologies deployed and articulated in this project are based on an essentialized view of gender for Native women. Gender is based on biological markers at birth, including persons possessing the reproductive capacity to conceive, carry, and give birth. This normalized construction of gender is not analyzed in this project. Specifically, the feature of CSFM of Native women’s sovereignty being inextricably tied to the

22 Supra note 18, at 31.

263

sovereignty of Tribal Nations relies upon the gender identity of Native women as potentially the biological mothers of future citizens. This orientation fails to consider the role of trans-Native women in the movement for the safety of Native women, and thereby, makes invisible their contributions. Further, this limited conception of Native women fails to consider the ways in which citizenship in Tribal Nations occurs regardless of whether a child’s biological parent was also a citizen in cases of adoptions for tribes without blood quantum criteria for enrollment. However, this project limited its scope in terms of cis-gender Native women as a response to the memorialization of hundreds of years of cultural genocide orchestrated primarily through the bodies of cis-gender Native women and covered over more recently as an act of disappearance; there is an even greater dearth of historical records and data about the violence perpetrated against trans or two-spirit Native women. The disappearance of violence against trans women within the broader consideration of disappearance of violence against Native women is a critical area in need of study. However, this project was limited in its orientation to cis-gender

Native women in its memorialization of the features of Indigenous Feminist Pedagogy.

IV. Future Research

Future research should expand these findings and clarify the features of

Indigenous Feminist Pedagogy enacted by Native women for over four decades. Based on this project and its limitations, several key areas of research came to light. The two most prominent areas include research about the Sliver playwright’s choices of venue and participants as well as the ways in which both texts circulated to reach broad legal and lay audiences,

264

A. Sliver Interviews with Playwright, Performers/Participants, Survivors

Sliver is a unique form of Indigenous Feminist Pedagogy because it is

performative, yet utilizes the actual survivors who are sharing their own true stories. This

strategy blurs performance with truth telling. Because of its dynamic and living

performance strategy, better understanding the process for how actors, survivors, and

community participants were selected would increase knowledge about how to duplicate

this kind of pedagogy. Additional research expanding the understanding of the processes

for selecting venues and performers/participants for Sliver could begin with interviews

with Mary Kathryn Nagle and the other Native women activists/ survivors who

performed. In addition to better understanding the choices of pulling together a cast, it is

also important to better understand the ways in which survivors are impacted by sharing

their stories.

At each Sliver performance, actual survivors share their stories; the emotions

displayed during performances are not constructed for the stage; they are real. For

example. When Diane Millich describes the emotional labor of sharing her story during

Sliver performances, it’s clear that she in part is reliving the pain of the trauma she

experienced but also that it is a therapeutic process for her. 23 She explains that “tears are

kind of therapeutic and they kind of wash that pain away you know that…but it takes a

couple of days you know to get rid of that trauma piece.” 24 It’s clear that Millich’s

trauma is triggered when she shares her story; what’s not clear is whether doing so is

primarily therapeutic and thereby, healing, or whether it is re-traumatizing her. More

23 Diane Millich, “Sliver of a Full Moon - Diane Millich - KMHA Radio 91.3fm - MHA Nation,” 02:29 - 02:53 (Jun. 4, 2020, 7:16 AM) https://www.youtube.com/watch?v=-S1-stMisPw. 24 Supra note 23.

265

research and analysis of this process and its impact on survivors sharing their stories is needed; future research should begin with interviewing Sliver survivor cast members.

More research is also needed to understand the selection and performance by community members in Sliver.

Each time Sliver is performed, community participants are selected. For example, when it was performed at James E. Rogers College of Law, law students participated. 25

By selecting community participants as part of the performance itself, the community’s memory of the performance becomes stronger and the content itself is internalized and potentially circulated more effectively. However, a better understanding is needed about how participants were selected as well as whether this level of participation in the performance impacted increased critical consciousness and activism on the part of these participants.

B. Circulation of Case Studies

Additional research about the ways in which both texts circulated would enhance a broader understanding about how these case studies transformed collective consciousness and influenced law makers. While the focus of this project was upon the ways in which these case studies themselves articulate a critically sovereign Indigenous

Feminist Pedagogy, additional research examining how they circulated in various discourse communities would better explain how audiences internalized this educational content and the ways in which this uptake is then shared with others. This aspect of the process of proliferation of knowledge in collective consciousness across legal communities and other publics remains an unexplored aspect of this project. If this area

25 Based on an in-person conversation with Christina Rinnert.

266

were better understood, activists could fine tune their selection of media, venues, oral or written texts, as well as processes that aid in circulation and proliferation of ideas that transform the relationships between Tribal Nations and the U.S. government and disorient the white supremacist genocidal patriarchy.

V. Conclusion

Indigenous Feminist Pedagogy mobilizes the classroom beyond traditional

educational spaces to engage hearts and minds in the present moment to transgress

policies and laws reproducing disappearance of Native women. To do so is to enact the practice of freedom through raising critical consciousness of injustice to create a tipping point where law makers act to fully restore tribal sovereignty. 26 Native women in the

movement for the safety of Native women have been doing just that for more than four

decades through their stories. Aja Martinez reminds readers in her recent book,

Counterstory, that she “ believe[s] that we've all been telling stories all along, but some

stories are elevated to the status of theory, scholarship, and literature, while, too often,

minoritized perspectives are relegated to marginalized or overlooked ‘cultural rhetorics’

methods.”27 This project has intended to center the voices of Native women and their

articulations of CSFM through transformative pedagogy enacting the practice of freedom,

resulting in the greatest restoration of Tribal Nation sovereignty since Oliphant through

passage of the Violence Against Women Act of 2013. 28

26 Supra note 1. 27 Aja J. Martinez, Counterstory 1 (2020). 28 Violence Against Women Reauthorization Act of 2013 (Pub. L. 113-4, 127 Stat. 54).