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Injustice in Indian Country

Jurisdiction, American Law, and Sexual Violence Against Native Women

by Amy L. Casselman (Author)
©2022 Monographs XVIII, 154 Pages

Summary

Living at the intersection of multiple identities in the United States can be dangerous. This is especially true for Native women who live on the more than 56 million acres that comprise America’s Indian Country – the legal term for American Indian reservations and other land held in trust for Native people.
Today, due to a complicated system of criminal jurisdiction, non-Native Americans can commit crimes against American Indians in much of Indian Country with virtual impunity. This has created what some call a modern day «hunting ground» in which Native women are specifically targeted by non-Native men for sexual violence.
In this urgent and timely book, author Amy L. Casselman exposes the shameful truth of how the American government has systematically divested Native nations of the basic right to protect the people in their own communities. A problem over 200 years in the making, Casselman highlights race and gender in federal law to challenge the argument that violence against Native women in Indian country is simply collateral damage from a complex but necessary legal structure. Instead, she demonstrates that what’s happening in Indian country is part of a violent colonial legacy – one that has always relied on legal and sexual violence to disempower Native communities as a whole.

Table Of Contents

  • Cover
  • Title
  • Copyright
  • About the author
  • About the book
  • Praise for Injustice in Indian Country
  • This eBook can be cited
  • Contents
  • Preface
  • Acknowledgments
  • Chapter One: Introduction
  • Injustice in Indian Country
  • A Note on Specificity
  • A Note on Terminology
  • What Is Justice?
  • Chapter Two: Literature Review and Methodology
  • Framing Jurisdiction Under Federal Indian Policy
  • Race, Gender and Colonization: Intersectionality in Sexual Violence Against Native Women
  • American Jurisdiction and Federal Indian Policy: Exerting Agency and Creating Social Change
  • Chapter Three: Historicizing Jurisdiction in Indian Country
  • Ex Parte Crow Dog—1883: The Original Jurisdictional Conflict
  • The Major Crimes Act—1885
  • The Dawes General Allotment Act—1887
  • Public Law 280–1953
  • Oliphant v. Suquamish Indian Tribe—1978
  • Conclusion
  • Chapter Four: Jurisdiction and Sexual Violence Against Native Women
  • Determining Jurisdiction in Indian Country
  • Federal Declination and Impunity
  • Predatory Violence Against Native Women in the Wake of Oliphant
  • The Colonial Context of Sexual Violence: Constructing the Native “Other”
  • The Colonial Context of Sexual Violence: Gendering the Body, Gendering the Land
  • Conclusion: Jurisdiction as Sexual Violence
  • Chapter Five: Examining the Federal Response to Jurisdictional Conflicts in Indian Country: The Tribal Law and Order Act of 2010
  • Framing the Problem, Framing Solutions
  • Western Legal Hegemony
  • The Homogenization of Violence: Racial Identity and Predatory Violence
  • Chapter Six: The Ghost of Kȟaŋǧí Šúŋka and the Enduring Myth of Savage Justice: The 2013 Reauthorization of the Violence Against Women Act
  • Chuck Grassley and the Ghost of Kȟaŋǧí Šúŋka: Analyzing Opposition to Title IX of VAWA 2013
  • Title IX: Policy, Perception and Potential
  • Whose Lives Matter? Domestic Violence and the Construction of the “Other” in VAWA 2013
  • “Safety for Indian Women” as Assimilation for Tribal Governments? Reexamining the Paradigm of “Law and Order”
  • Theorizing Solutions: Radicalizing VAWA 2013
  • Chapter Seven: Differential Consciousness, the Third Space of Sovereignty, and Strategies for Social Change
  • What Is Justice?
  • Conclusion
  • Appendix A: Glossary of Terms
  • Appendix B: Law and Policy Reference
  • Bibliography
  • Series index

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Preface


This book is the culmination of my research as an adjunct professor of Ethnic Studies, as well as my work as a Case Worker for the Washoe Tribe of Nevada and California. As a Case Worker for the Washoe Tribe’s Native Temporary Assistance to Needy Families (TANF) Program, I worked both in urban and rural settings to provide comprehensive support services for Native families—the majority of whom were women with young children. My work often put me in a position in which I became a mediator between the very real needs of Native women and the very bureaucratic needs of a federally funded tribal program. Operating from this point of confluence, I found myself constantly negotiating the various ways that individuals and institutions inscribed violence on the Native women I worked with. The federal government, as part of its trust relationship with Native nations, is responsible for providing basic services to Indian people. Yet, I would spend hours trying to find health care for my clients who were uninsured, days attempting to get students with special needs the educational support that they needed, nights trying to find shelter for clients fleeing abusers, and weeks fighting with child protective services who had illegally removed Indian children from their homes.

Throughout these challenges, the strength of my clients was always very clear to me as they survived adversity and exerted agency in their lives. As they navigated complex American institutions to forge a better life for themselves and their children, they continued the spirit of resistance and survival that characterizes ← xi | xii → generations of women before them. Native women are here today because they and their ancestors survived hundreds of years of federal policies of physical and cultural genocide to the point that their very existence today is a revolutionary act. This spirit of revolution is still here in the myriad ways that Native women survive continued colonization, subvert attempts at genocide, and exert agency in the face of oppression.

It is in this context that I began to learn about jurisdiction in Indian country. In June 2009 I attended the Women Are Sacred conference sponsored by Sacred Circle, a South Dakota organization whose goal is to end violence against Native women. There I met with Native activists, organizers, and survivors who were addressing the ways that complicated systems of jurisdictional authority on Native land systematically denied justice to Native women who experienced sexual violence. In integrating this activism with my personal experience as a Case Worker, I began to understand the way that American criminal jurisdiction and sexual violence act not just as legacies of settlement, but as continued projects of colonization. These initial experiences, coupled with my activism in the Native community, form the foundation of this research.

I have a high amount of accountability to, and encouragement from, Native communities in my pursuit of this research topic. Yet, I have the privilege of being able to learn of these things from a distance. While the content of this research is horrifying, I had the privilege of being shocked by it because it is not an experience common to my community. Many Native people I know, while saddened, are not shocked by this information precisely because they have lived it or know someone who has. As you will read, many Native women—especially those in rural areas—simply do not know anyone in their communities who hasn’t experienced sexual violence.

Explicit accounts of violence against Native women are not hard to find. And, as a writer, it is tempting to illustrate my points with the most shocking of stories. I also understand, however, that this type of sensationalism can also be a form of revictimization. While scholarship on violence against women, both Native and non-Native, has become effective partly in its ability to illustrate the depravity of these acts, I use personal stories and examples with caution. The experience of sexual violence is intensely personal, yet the adjudication and activism around it is necessarily public. As such, I tread lightly and with much respect regarding the personal stories I share here. For example, the sexual assault of Lavetta Elk (Oglala Lakota) is woven throughout several chapters. While all of the information included about her assault is publically available, I sought out and received permission from Ms. Elk to share it. While it would have been ← xii | xiii → easy to tell her story solely from primary documents, I incorporated her feedback to craft an image of her that was reflective of her own views, experiences, and desires to move forward after her assault. Though difficult, for many Native women sharing their stories is part of a journey in which healing comes not just through the criminal justice system, but also through using their experiences to shape a world in which colonial violence no longer exists. It is with great respect and humility that I offer these stories in the hope that awareness of this issue can aid that journey.

This book pushes the boundaries of simply documenting the epidemic rate of sexual assault against Native women to root this phenomenon in its colonial context. In doing so, I incorporate the perspectives of Native women to propose new solutions that challenge American hegemony. By shifting the focus towards sovereignty, decolonization and accountability, I hope to offer new possibilities in conceptualizing solutions and creating social change.

In addition to being a resource to the Native community, one of the objectives of this research is that non-Native people who read this will not just be shocked by what they discover, but will use this knowledge to understand that this information is relevant to their lives too. While Indian country may seem like another world for some, the United States of America would not be here without it. It was through relocation, genocide, and sexual violence that reservations were created in order to allow non-Native people to live in the Native lands on which they make their homes today. As Sarah Deer (Muscogee Creek) notes, “We also need to acknowledge that the United States was founded, in part, through the use of sexual violence as a tool, that were it not for the widespread rape of Native American women, many of our towns, counties, and states might not exist.”1 And, it is the continued colonization of Native peoples—and the jurisdictional conflicts that are a part of that project—that allows non-Native people to make their lives in a colonized world.

It is my hope that these harsh realities do not depress anyone, but instead encourage everyone to not just act, but to truly listen. To my non-Native audience, listen to the stories of Native survivors and be willing to understand their experiences in their own terms. Listen to the way Native nations articulate solutions and support them in the way that they envision healing. Too often attempts at solving problems in Native communities are co-opted by non-Native people who are so invested in what they think is right for others that they prevent true progress from being made. To you I say listen to these stories, and as you move through the world, don’t hold on too tightly to what you have received at the expense of what others have lost. ← xiii | xiv →

Note

1. Sarah Deer, “Sovereignty of the Soul: Exploring the Intersection of Rape Law Reform and Federal Indian Law,” Suffolk University Law Review 38 (2005): 459.

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Acknowledgments


I extend my deepest thanks to Lavetta Elk for her willingness to share her story of survival and resistance. Thank you Lavetta for giving me this honor. You are an inspiration to me.

I direct particular appreciation to Dr. Andrew Jolivette who supported me throughout the development of this book. Without his support and encouragement, its publication would not have been possible. Thank you to Dr. Falu Bakrania whose guidance in shaping the parameters of this research allowed me to produce theory and knowledge worthy of publication. To my colleagues at the Washoe Tribe of Nevada and California and members of the Bay Area Native community who guided my decision to pursue this topic, I offer this work as part of my commitment to you.

And to my family, friends and partner: thank you for your enduring support and encouragement throughout this intimate process. ← xv | xvi →

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Details

Pages
XVIII, 154
Year
2022
ISBN (PDF)
9781453916018
ISBN (ePUB)
9781454189350
ISBN (MOBI)
9781454189343
ISBN (Softcover)
9781433198427
ISBN (Hardcover)
9781433131097
DOI
10.3726/978-1-4539-1601-8
Language
English
Publication date
2015 (December)
Keywords
Reservate Hunting Native american Violence
Published
New York, Bern, Berlin, Bruxelles, Oxford, Wien, 2022. XVIII, 154 pp., 13 b/w ill.

Biographical notes

Amy L. Casselman (Author)

Amy L. Casselman is a lecturer at San Francisco State University and California State University Stanislaus where she teaches federal Indian law, American Indian history, and Gender Studies. She holds degrees from Stanford University, San Francisco State University, and the University of California Santa Cruz. Prior to her career in academia, Casselman was a caseworker for the Washoe Tribe of Nevada and California where she provided support services for Native children and families.

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