BY MARK RIFKIN
Associate professor of English at the University of North Carolina
During the past few months, the U.S. Senate and House of Representatives both have passed bills reauthorizing the Violence Against Women Act (VAWA). The law originally was adopted in 1994 and was last reauthorized in 2005, and in its various iterations, it has, among other things, created categories for interstate domestic violence, dating violence, and stalking in federal law as well as providing funding (for which periodic reauthorization is needed) for the prevention and prosecution of violent crimes against women. While also differing on issues related to immigrants and women in same-sex relationships, the House and Senate versions of the current VAWA take dissimilar approaches to the question of how to protect Native women against assault and domestic violence. Specifically, the Senate version allows for tribes to have limited criminal jurisdiction in cases involving dating and domestic violence over the non-Indian “romantic” and “intimate partners” of women living in Indian country as well as enabling tribal governments to issue and enforce protection orders. These provisions are absent in the House bill, which instead requires that Native women seek protection from federal courts.
The Republican resistance to this section in the Senate bill (S. 1925), and the effort to have it removed from the legislation, offers some sense of why it was not included in the House bill (H.R. 4970). In a speech on the Senate floor, Senator John Kyl (R-AZ) described these provisions as “blatantly unconstitutional,” adding that the section “breaks with 200 years of American legal tradition that tribes cannot exercise criminal jurisdiction over non-Indians.” He goes on to say, “All tribes require either Indian ancestry or a specific quantum of Indian blood in order to be a tribal member. Even a person who has lived his entire life on the reservation cannot be a tribal member if he does not have Indian blood.” In a similar vein, Senator Chuck Grassley (R- IA) argued, “Constitutional problems are made worse because the bill gives tribes criminal jurisdiction as part of their claimed inherent sovereignty.”
Determining Native sovereignty
These comments speak to a much larger problem within contemporary federal Indian policy, namely the issue of precisely how to determine the contours and content of Native sovereignty. Kyl suggests that tribal authority can be defined by reference to Indianness, the reproductive transmission of an otherwise undefined racial substance via “ancestry” or the passage of “blood.” To attempt to extend the jurisdiction of Native nations further, to include those who are “non-Indian,” then, would unconstitutionally subject them to the rule of a racialized enclave to which they can never belong.
However, if one reads against the grain here, a series of other questions emerge. Why does “American legal tradition” have any relevance in determining the character of jurisdiction exercised by Native nations on their lands? Given that “tribes” are Indigenous peoples whom the U.S. incorporated into its “domestic” space without their consent and against their will, why would their governance be subject to the U.S. Constitution? Moreover, from where did the requirement that tribal membership be defined by “Indian blood” come? In other words, the opposition to the “Indian” provisions of the Senate bill seems to depend on treating Native political authority as self-evidently equivalent to Indian identity, presuming the U.S. has the right to regulate the jurisdiction of Native polities, and claiming that the racial limits of Indigenous governance are constitutionally mandated.
This line of argument, and the logically incoherent if politically powerful assumptions on which it rests, can be traced back to the U.S. Supreme Court decision in Oliphant v. Suquamish (1978), in which the court found that tribes cannot exert criminal jurisdiction over “non-Indians.” The justices conclude that the exercise of such authority by Native nations would be “inconsistent with their status,” adding: “Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty.” The “status” at issue entails being inserted into the jurisdiction of a nation-state created by foreigners and imposed over already existing polities — a process otherwise known as settler colonialism. The presence of Indigenous peoples troubles the U.S. assertion of its right to exercise “overriding sovereignty” on the land the government claims as domestic space.
The legal and ethical conundrum of legitimizing the existence of the U.S. as a settler-state in the face of competing and prior claims to sovereignty by Native nations gets managed in the decision through the figure of the “Indian.” Put another way, if “tribes” can exert full legal authority over everyone within their territories, what distinguishes them from the U.S. government? Invoking Indianness as the means of delimiting the scope and character of Native sovereignty displaces this nagging question, instead defining Indigenous peoples as a racial population living on, in the decision’s terms, “territory assigned” to them due to their “dependence … on the United States.”
The “American legal tradition”
Maintaining the distinction between Indians and non-Indians as the central axis by which to define the limits of Native sovereignty substitutes the reproductive transmission of racialized substance – having “Indian blood” or “Indian ancestry” – for the geopolitical dynamic of Indigenous peoples continuing to exist on territory forcibly incorporated into/as the settler-state. In this frame, “Indians” are a special kind of group within the overall structure of U.S. constitutionalism, as opposed to Indigenous polities whose status as such precedes and exceeds the U.S. Constitution. The political anxieties generated by Native peoples’ continued survival emerges perhaps most directly in the VAWA debate in hesitations around the “claimed inherent sovereignty” of tribal nations. While the assertion that Native peoples have not exercised criminal jurisdiction over non-Indians at any point in the past two-hundred years is simply inaccurate, it bespeaks a worry that acknowledging the legitimacy of such power puts in jeopardy central aspects of the “American legal tradition” — that the right claimed by the U.S. to exercise “overriding sovereignty” over the territory said to compose the nation may be put in doubt. Turning the matter of the bounds of Native governmental authority into the question of who counts as “Indian” transposes the issue into a different register, one that makes Native sovereignty dependent upon biological difference and a heteronormative logic of reproduction.
The concept of having a “quantum” of Indianness became institutionalized in the late-nineteenth and early-twentieth-century censuses of Native groups conducted by the federal government, and such designations became an administrative tool of federal Indian policy starting in the 1910s as the basis for decisions about “competence” to own land, determinations made as part of the allotment program that sought to break up Native landholding and eliminate Native sovereignty. The current efforts to determine the contours and limits of Native governance by invoking the apparently biologically self-evident figure of the Indian, therefore, have a long history as part of attempts to dismantle Native peoplehood and to bring Native lands into the regular jurisdiction of the U.S. While such a detribalizing initiative is not directly at play in public conversations over the VAWA, that debate highlights the entrenchment and stakes of the logic of Indianness codified in the Oliphant decision and potentially modified by the Senate version of the bill.
However, even though this version does offer possibilities for tribal jurisdiction over “non-Indians” unavailable in the House bill, it does not escape the orbit of the racializing reproductive assumptions guiding the arguments made by the Senate bill’s detractors. The bill notes that the persons that would be prosecutable under this act must be “in a social relationship of a romantic or intimate nature” with the alleged victim or “a current or former spouse or intimate partner.” While such categories do not fit exactly the contours of the nuclear family unit, especially since the bill pertains to “dating” as well as “domestic” violence, the model here still appears to be that of marital pairing, extended backward to courting and forward through divorce. This delimitation of the potential authority exerted over “non-Indians,” then, seems to take couplehood as the axiomatic frame. Why, though, would romantic partnering provide the prism for thinking about how legally to redress violence against Native women by non-natives?
Understanding Native sovereignty
The key to answering this question may lie in the repeated description of the powers of Native governments under this proposed act as “special domestic violence criminal jurisdiction.” What makes it “special” is that the bill offers forms of authority “that a participating tribe may exercise under this section but could not otherwise exercise.” In other words, this bill does not displace the Oliphant decision and its logic of the necessary subordination of Native nations to, and “dependence” on, the “overriding sovereignty” of the U.S., instead creating a limited exception for kinds of violence that can be understood in relation to the nuclear family unit. In this way, the bill preserves the presumptively reproductive distinction between “non-Indian” and “Indian” (a term which itself is nowhere defined in the bill) while allowing for cases in which the former enter into the romantic-familial orbit of the reproduction of Indianness. Thus, the Senate version of the VAWA exceeds the letter of Oliphant while still retaining the spirit of understanding Native sovereignty as control over the genealogical/reproductive process of transmitting Indianness.
That orientation in the bill further can be seen in the repetition of the phrase “the Indian country of that Indian tribe.” The purpose of this somewhat odd and seemingly redundant formulation seems, rather controversially, to insist that those places within a reservation’s geographical boundaries that are owned by non-Indians (due to the history of allotment) fall outside tribal jurisdiction. The exception to the implicit exemption of non-Indians from Native sovereignty is when they somehow can be tied to Indianness via marriage or “intimate” romantic relations – a familial or proto-familial connection that does not fundamentally trouble the imagination of Indianness as procreatively conveyed racial substance.
More than signaling a particular Republican reluctance to expand tribal jurisdiction, the debate over the VAWA reveals the lineaments, and limits, of the ostensible U.S. commitment to recognizing Native sovereignty. Despite the fact that since 1970 federal Indian policy supposedly has taken place in the “era of self-determination,” the U.S. continues to insist on the legitimacy of its “overriding sovereignty” over Native nations since they occupy territory within its “domestic” space. The intractable and unresolvable problem of legitimizing such exertion of authority over Indigenous peoples consistently is displaced by substituting questions of “ancestry” and “blood” for engagement with the ongoing geopolitical violence of settler colonial rule – the creation of a nation-state over top of already existing polities who did not consent to such enforced incorporation and belonging. In that transposition, racialized bodies are made to substitute for the full measure of peoplehood as defined and protected under international law. Instead of asking should tribal governments be able to exert jurisdiction over “non-Indians,” a better question would be, what would an acknowledgment of Native self-determination look like if completely unbound from the U.S.-instigated process of authorizing, regulating, and reproducing Indianness?
Mark Rifkin is associate professor of English at the University of North Carolina at Greensboro. He is author of The Erotics of Sovereignty: Queer Native Writing in the Era of Self-Determination.
“Mark Rifkin’s ability to productively articulate the connections between straightness and empire alone marks him as one of the most significant scholars in American Indian Studies. In this book, Rifkin thoughtfully prods us to think about how queer Native writers are literally ‘reimagining’ Indianness outside of those oppressive norms in a way that nuances our understanding of how Native peoples practice sovereignty in everyday life, despite the continued influence of imperialism inside tribal politics.”
—Malea Powell, Michigan State University
This post was published in partnership with First Peoples: New Directions in Indigenous Studies.