Abstracted from: Hossein Dabiri, Kiss the Ring, but Never Touch the Crown: How U.S. Policy Denies Indian Women Bodily Autonomy and the SAVE Native Women Act's Attempt to Reverse That Policy, 36 American Indian Law Review 385 (2012) (267 Footnotes)
Gender violence is a silent crisis affecting many women in Indian Country. One third of Indian women are raped and three out of every five Indian women are assaulted by a partner. Police routinely triage rape and sexual assault cases. What is more, law enforcement and social services agencies designed to help these women in the aftermath of such violence lack the administrative freedom required to be effective.
Gender violence certainly exists outside of Indian Country in myriad forms. But the causes and effects of this violence seem to be distinct in Indian Country. Many have argued that violence by non-Indians against Indians can be attributed to a jurisdictional “black hole.” Although a lack of jurisdiction may be a variable that permits gender violence to go unpunished in Indian Country, it is neither the alpha nor the omega of the gender violence occurring in Indian Country. Gender violence directed against Native people, and the silence surrounding it, is part and parcel a byproduct of colonization.
Gender violence against Indian people aims to degrade the Indian body, erode tribal sovereignty, and assimilate Indian culture. Within Indian Country, opaque jurisdictional rules paralyze law enforcement. Courts addressing such problems are consistently hamstrung by the courts of another jurisdiction. Perpetrators go free. Victims remain without vindication.
This, however, is only half the story. The impacts of gender violence do not end when the perpetrator leaves. Rape, specifically, “is laden with psychological and spiritual ramifications.” Rape is a lived experienced. Rape survivors could provide excellent insight into how rape incidents are perceived and managed in their particular communities. Legislation addressing rape and other forms of gender violence need to be consonant with those stories.
This comment addresses two legal issues relating to gender violence against Indian women: criminal jurisdiction and civil jurisdiction. These issues will be presented against the backdrop of proposed legislation, the Stand Against Violence and Empower Native Women Act (“SAVE”). This comment will test the effects that the proposed SAVE legislation might have on the gender-related problems occurring inside Indian Country.
SAVE seeks to ameliorate gender violence against Indian women, employing tribal sovereignty as its galvanizing tool. This comment argues that SAVE, if passed, will effectively strengthen tribal sovereignty. But SAVE will likely be a mere palliative remedy for Native women, failing to resolve the larger systemic issues responsible for the crisis-level rates of gender violence. Absent comprehensive action that addresses the causes and effects of violence against Native women, piecemeal legislation, such as SAVE, will not significantly mitigate violence against Native women.
A fundamental reconfiguration of self-government by Indian nations - not “as primarily the administration of a jurisdictional grid” but as “lived connections to land and one's people” - is required to effect substantial change in Native peoples' daily lives. Native sovereigns must respond to Native peoples' unique needs, regardless of whether those people are wholly within the territorial boundaries of that Indian nation. This comment concludes that SAVE does increase powers available to tribal judicial systems, but falls short of providing essential services to ameliorate gender violence and its effects in Indian Country.
Before delving into this comment's substance, it is important to address distinctions in terminology. This comment uses the term “gender violence” to refer to all forms of violence directed toward an individual based on gender. Sexual violence goes beyond “individual acts of rape - rather it encompasses a wide range of strategies designed not only to destroy peoples, but to destroy their sense of being a people.”
Gender violence perpetrators often act to reinforce patriarchal norms against both men and women. Hatred of the feminine, or misogyny, can be directed at anyone regardless of sex. Too often, misogynistic violence directed at men is discredited because the victim's sex blurs the gender-based reasons for the attack (e.g. perpetrators attack male victims for exhibiting feminine gender qualities). Using “gender violence” instead of assault, rape, etc., underscores the patriarchal dynamic involved in episodes of gender violence on the reservation.
Part II of this comment provides a greater context for gender violence, beginning with a brief history of gender violence, then delving into specific circumstances surrounding Indian gender violence. It discusses the interplay between gender violence, colonization, and genocide. Part III summarizes the relevant legislation, case law, and legal issues affected by, and affecting, the SAVE Native Women Act. Part IV overviews SAVE's form and function and provides some analysis of SAVE, keeping in mind both criminal and civil jurisdiction issues in Indian Country. Part V discusses jurisdictional questions that arise due to this proposed legislation. Part VI provides a brief outline of alternatives to the SAVE legislation. This comment concludes in Part VII.
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The perils Native American women face may seem insurmountable. But the appearance of catastrophe need not interfere with progress; rather, that appearance ought to serve as impetus for change. Decolonizing Native nations must entail decolonizing Native bodies, transforming the relationship Native people maintain with their bodies. More than a call for domestic self-government, Native American women must seek bodily sovereignty. More than mere choice, Native people must demand realistic access to reproductive healthcare. In the legal system, Native bodies deserve the same dignity afforded other bodies. Native governments must have the ability to preserve the dignity of those Native bodies.
The SAVE Native Women Act steps closer to those aspirations. SAVE creates a network of agencies, governmental and non-governmental, examining the problem of gender violence in Indian Country. It helps to fund the development of tribal agencies and organizations that can deal with the perpetrators and the victims accordingly. Tribes are now able to better manage internal strife with the addition of full civil jurisdiction over protective orders. SAVE also makes it possible for tribes to begin developing their own rape law.
By leaving room for indigenous perspectives to build tribal law, a fuller remedy for the problem of gender violence in Indian Country can be fashioned. If Congress enacts the SAVE Native Women Act, Indian people will finally be able to avail themselves of the same gender-violence remedies afforded to the rest of the non-Indian population.
. University of Oklahoma College of Law, J.D. May 2012; University of Oklahoma, B.A. 2009.