Rape as Colonial Legacy

Giselle Gerolami

The Beginning and End of Rape
By Sarah Deer
University of Minnesota Pres, 2015, 232 pages, $22.95 paperback.

THE BEGINNING AND End of Rape marks an important contribution to growing scholarship around issues of gendered violence. Sarah Deer’s contribution is unique and pathbreaking: While much has been written on legal issues surrounding rape on developing tribal law, there is virtually nothing on tribal legal response to rape.

Sarah Deer is a citizen of the Muscogee Nation. A law professor at the William Mitchell College of Law, she has spent over 20 years working as an advocate for survivors of sexual violence. Her recent engagement has focused on tribal and federal law with regard to sexual and domestic violence. She was instrumental in the 2013 reauthorization of the Violence Against Women Act.

Deer sees resolving the issue of rape in Native America as the number one priority that tribal communities must confront. Sovereignty is both political and personal, as “it is impossible to have a truly self-determining nation when its members have been denied self-determination over their own bodies.”

Rejecting the use of the word epidemic to describe violence against Native women, Deer seeks to locate the issue as firmly rooted in the legacy of colonization. “Rape is more than a metaphor for colonization, however; it is integral to colonization.”

The statistics paint a dire picture. Native women experience the highest per capita rates of violence of any group. The most commonly quoted statistic that one in three Native women will be raped in her lifetime most likely underestimates the reality.

If that were not disturbing enough, unlike most crime that is intraracial, rape against Native women is predominantly interracial. Somewhere between 70-90% of assailants are white. Making matters worse is the fact that starting in 1978, tribal governments were stripped of their right to prosecute non-Natives for crimes committed on Native land.

Colonialism and Rape

Deer argues that rape was uncommon in traditional matrilineal Native societies, but that changed with the arrival of Europeans who misconstrued nudity and sexual autonomy for promiscuity and immorality, while in their world it was perfectly moral and legal to murder, rape and displace Native populations.

Early Anglo-American rape law sought to control women and preserve chastity. Women were property to be protected from other men. This approach stands in stark contrast to that of a 1825 Mvoskoke law: “And it be farther enacted that if any person or persons should undertake to force a woman and did it by force, it shall be left to woman she should satisfied with to whip or pay what she say it be law.”

It would be another century before women had any say in the laws of the United States, and not until the 1970s and ‘80s that rape laws were reformed. Even now, there’s still a long way to go to make U.S. legal processes survivor-centered.

From forced removal to religious boarding schools, Native women’s bodies have always been commodified and sexual slavery continues to this day. Relocation policies in the 1950s caused the number of Natives living in urban areas to increase from 7.2% in 1940 to 60% percent today.

Unemployment and poverty are common, and Native women are disproportionately represented among prostitutes. Studies of Native prostitutes reveal high levels of deception used as recruitment tools and high levels of homelessness and rape. The oil boom that came out of fracking led to “man camps” located near Native reservations in North Dakota and has resulted in increased violence against Native women: “… the land and water are being poisoned as the hearts and spirits of Native women break.”

Legal Quagmires

Developing tribal law is complicated by the ways in which federal law, state law and tribal law are entangled and by the fact that there are 560 federally recognized tribal governments. The Major Crimes Act of 1885 gave the federal government control over the prosecution of criminal matters but did not divest tribal governments, resulting in concurrent jurisdiction.

Public Law 180 in 1953 transferred jurisdiction over criminal matters to the state governments in a handful of states. Again, there is concurrent jurisdiction but since no additional resources were allocated the result has effectively been no criminal justice systems in the Native areas of those states.

The Indian Civil Rights Act of 1968 was a misnomer because rather than accord civil rights, it stripped tribal governments of the right to incarcerate for longer than a year or so for any crime and limited the fines that could be meted out. Then in 1978, Oliphant vs. Suquamish divested tribal courts of jurisdiction over non-Indians who commit crimes in Native areas. This has attracted criminals to Native areas where they can commit crimes with impunity.

Deer expresses her ambivalence about reforms to federal law. Should Natives look to the colonizer for solutions? There is a catch-22. Failure to participate in the process can result in laws being made without any Native consultation. Ultimately, she concludes that rape is more of a threat than the drawbacks of working towards federal reforms.

The latest reform process began in 2004 with Senate Committee on Indian Affairs hearings and then picked up speed with the 2007 Amnesty International report Maze of Injustice: The Failure to Protect Indigenous Women from Sexual Violence in the USA, which embarrassed U.S. legislators into action. The Tribal Law and Order Act, passed in 2010, allows tribal governments to give out longer incarceration sentences and heftier fines. The Violence Against Women Act was reauthorized in 2013, this time with a Title IX provision for Native women.

The most controversial change was the restoration of tribal jurisdiction over non-Natives who commit acts of domestic violence on Native lands. This change was deemed a “partial Oliphant fix,” partial because it covers only non-Natives with “sufficient ties” to the tribe. This is a remedy for women who are victims of domestic violence, but not for victims of acquaintance rape, stranger rape or child sexual abuse.

Toward An Indigenous Approach

How could tribal law on rape take a different approach to avoid the pitfalls of federal and state laws? There is freedom in having a blank slate instead of trying to reform existing patriarchal laws. Tribal law could even be a model for other jurisdictions.

Deer identifies three theories of rape law. The conservative theory sees rape as a trespass to chattels where a man unlawfully uses the property (woman) of another man. The liberal theory sees rape as a battery involving unlawful touching. The radical theory sees rape as causing a degradation of the victim’s status in larger society.

Deer argues for an indigenous theory of rape which combines the liberal and radical theories and conceives of rape as “an ‘invasion’ of the body, mind and spirit.” A tribalcentric response to rape will involve survivors, look to historical leaders and find inspiration in traditional beliefs and oral traditions.

Deer voices skepticism about peacemaking, her preferred term for alternative dispute resolution or restorative justice. There are a variety of tribal models of peacemaking although the best known is the Navajo. This practice can be appropriate for custody, probate and other civil matters but is controversial when applied to rape.

Replacing an adversarial system, with all its drawbacks, with a restorative one does not necessarily bring justice to survivors, according to Deer. An important weakness is “the assumption of some degree of preexisting equality between the parties.” Another issue revolves around who is requesting the peacemaking, since a perpetrator may be seeking to avoid accountability.

During peacemaking, there is the suggestion that anger is misplaced, which disrespects the survivor since the problem is rape, not the survivor’s anger. Just as in an Anglo-American trial, having to testify in front of her aggressor can revictimize the survivor. She may feel coerced because it is a Native practice and she feels she should participate.

The concluding ceremony in peacemaking can give closure prematurely, before the survivor is ready. What does peacemaking do to address the issue of recidivism, and how is denial handled since there is no fact finding involved? Despite these difficulties Deer is not completely dismissive of peacemaking, believing that elements of retribution and restoration are both necessary in order to dismantle a culture of rape.

Finally, Deer examines specific legal remedies that tribal governments might consider. From 2002 to 2008, she devised workbooks on tribal rape law while working at the Tribal Law and Policy Institute.

Some tribal criminal statutes mirror language from state laws from the early to mid 20th century and do not include the reforms that came in the 1970s and 1980s. For instance, the statute might define rape as “carnal knowledge of a woman, not one’s wife, by force and against her will.”

The problems with such a definition are readily obvious: male victims and female perpetrators are excluded, spousal rape is not covered, and force must be proven although rape does not always involve physical force.

Tribal governments could take an approach seeking the active involvement of survivors in creating a list of behaviors that violate consent. Punitive measures are necessary to ensure accountability of the perpetrators and the safety of victims. Incarceration is controversial in communities of color, and lengthy sentences are not much of a solution.

Creative approaches to restitution like having the perpetrator provide goods such as wood, meat or fish might be considered. Other options are men’s reeducation programs and orders of protection; these normally apply only to domestic violence but could be expanded to include sexual assault. Alternatively, a stand-alone code for sexual assault orders could be developed.

For communities with gaming, the cancellation of per capita payments could be an effective tool. Lawsuits would work only if the perpetrator had resources. Finally, removal from leadership positions or termination of employment would send a strong message about accountability for rape.

Problematic Issues

Seeking redress through the state is contentious on the left. Aside from the ways in which the justice system often revictimizes survivors, a problem of which Deer is keenly aware, there is also the issue of criminalizing perpetrators, many of whom were themselves victims of abuse as children.

Deer does not address this issue directly and believes not only in the importance of keeping the community safe but also in punitive measures that would send a strong message and serve as a deterrent. There is an open question as to the extent to which this approach would succeed, but even if it did many would see the criminalization of Native men — whether through tribal or federal law, but the latter in particular — as problematic.

It is unlikely that anyone would disagree with Deer’s central premise that tribal self-determination is meaningless unless the issue of rape is addressed. As a seasoned advocate for survivors, she understands the need for grassroots activism and recognizes that her proposals are only steps in the struggle to dismantle a rape culture centuries in the making.

Her work has already been instrumental in the reforms to federal law, and the theoretical framework that she has developed for an indigenous feminist approach to tribal rape law might serve as a model to non-Native jurisdictions in the United States and elsewhere.

July-August 2016, ATC 183