by Gregory Doukas
Sarah Deer is a professor of law at William Mitchell College in Minnesota and a proud Mvskoke woman. Her life as a political activist is led without a microphone in hand. Instead, Professor Deer acts as a fierce representative seeking justice for those Native women who are the survivors of sexual violence. She does so by negotiating the problems of indigenous political struggle from inside the colonial legal system.
Rather than put her legal training to use in the familiar ways of working for legal firms or agencies, Professor Deer opted for something different. She chose not to open up her own law firm or even become a prosecutor. In addition to teaching law and writing books, Professor Deer expresses her political voice in two ways. First, she speaks as counsel and advocate for Native women party to litigation or other courtroom proceedings in the wake of their having experienced the spiritual trauma of sexual violence. Second, she engages the struggle to decolonize law and justice by pushing tirelessly for federal Indian law reform.
Deer helped to pass both the Tribal Law and Order Act (2010) as well as the Violence Against Women Act Reauthorization (2013). Deer’s career as a scholar is also decorated with accolades. She is the 2014 recipient of the MacArthur fellowship and author of many articles and books, most recently The Beginning and End of Rape: Confronting Sexual Violence in Native America (2017).
Professor Deer’s scholar-activism flows first and foremost from her training as a lawyer. As a political theorist, however, I was struck by her book on rape because it raises problems indispensable to indigenous political thought and political theory more generally. These include the meaning of justice as well as its relationship to the sovereignty of Native political systems.
Professor Sarah Deer is neither a typical lawyer nor a typical political activist. In addition to the excellence so evident on its face, her life’s work embodies the best of what it could mean to be a scholar-activist. It flows from a critical engagement with reality, a sober diagnosis of its problems, and a drive to work toward political solutions while simultaneously retaining cognizance of the fact that her project is bigger than she is. Professor Deer challenges my own work to think deeper in offering a conception of justice that includes its elemental role in public institution building. At the end of the day, not only Native women but also Native communities in general are well-served with Sarah Deer on the front lines.
The following is an edited transcript of my conversation with Professor Deer:
Doukas: How and why did you want to pursue a career in law? What about participating in the criminal justice or legal system appealed to you? Have your views about the justice system or the role of lawyers changed over the course of your career? While working as an advocate for First Nation women, have you encountered any roadblocks, or anything at all, prompting you to question whether your efforts and talents could be put to better use elsewhere?
Deer: I was raised by a state court judge (my father) who always encouraged me to go to law school. In high school I was involved in competitive debate and forensics, where I honed argument skills and developed a love for public speaking. However, when I went to college, I wanted to try something different. Perhaps as a rebellious daughter I was resisting simply following in my father’s footsteps, so I initially decided to major in Theater/Speech, thinking about being a high school debate coach. However, when I began working as a volunteer rape crisis counselor at age 20, I started attending sexual assault jury trials. I was intrigued by the skills of the prosecutors and started thinking again about law school. I thought I could do a good job as a prosecutor. I ended up majoring in philosophy and women’s studies, starting law school after I finished my undergraduate degree.
I never ended up being a prosecutor, although that was the primary focus of my legal training. I never pursued a traditional legal practice either. My first job out of law school was as a bureaucrat—working for the United States Department of Justice. Following that job, I worked for a Native-owned and operated non-profit organization that focuses on helping tribal nations respond to violent crime. In 2008, I started teaching full-time.
Certainly, my perspective on the practice of law has changed over the years. I consider myself a liberal/progressive, and I came to understand that many (but certainly not all) prosecutors come from the other side of the political spectrum. While I am interested in social justice, that does not always come from the courtroom.
I have never really second-guessed my interest and desire in putting my law degree to work helping Native women. While the work is tedious and frustrating at times, I am grateful that my legal training has been useful in thinking through solutions at both the tribal and the national level. I also think it is important to acknowledge that although I am Native myself, I do have a great deal of privilege in the world. For example, I was raised in an upper/middle-class home where I had every opportunity I wanted. I also am light-skinned, carrying white privilege in the world. This makes the work, in many ways, “easier” for me. For that reason, I try to always remain cognizant of the need to amplify the most marginalized voices from Indian country.
In The Beginning and End of Rape you discuss how European and Anglo-American notions of law are colonized. Specifically, you argue that oral legal traditions like those passed down within indigenous nations were not seen by European settlers in the New World as legitimate forms of law grounded in valid forms of political authority. At the same time, you do not argue against the validity of written forms of law. How would you explain what law actually is and what functions it is designed to fulfill? What is it about law that makes both oral and written traditions legally valid and politically authoritative? What do you see as the political strengths and limitations of each tradition?
Oral traditions have several advantages over written laws. Particularly in smaller communities, passing down traditional laws through oratory makes the laws more accessible to everyone in the community. When these traditions are reduced to writing, the value of rhythm, intonation, and melody is lost. The written laws, then, are confined to books to which the average person may not have access.
The reality of the contemporary world, however, has led many (but not all) tribal nations to focus on contemporary criminal justice systems with written laws and policies. There are some good reasons for doing so. For example, a written law and a court of record serve to establish “legitimacy” to the outside world. If tribal nations, for example, want to prosecute non-Natives, it would be difficult for the dominant society to accept that action if the non-Native does not have inside access to the oral traditions.
One aspect of tribal law that intrigues me is the ability to use oral traditions WITHIN the contemporary court structure. So, for example, there is a tribal nation in the Southwest that has a DVD library of video interviews with a wide range of elders in the community, who were interviewed about legal matters such as divorce, child custody, probate, etc. These interviews are a form of oral tradition. If a tribal court judge is trying to make a decision about a case, she can consult this video library to discern how a traditional/pre-colonial perspective on the dispute could be resolved in a way that is consistent with the cultural beliefs and values of the people. Consulting these DVD’s/tapes, and using council elders’ video testimony, are ways of ensuring that any indigenous principles which have not made their way into the statutes, for any number of reasons, could now be employed by judges as guiding principles in deciding cases.
Other tribal nations have rules of evidence that allow for the introduction of “expert” testimony from a culture-bearer who can articulate the legal principles underlying a dispute in the community.
I do not necessarily see oral versus written traditions as being mutually exclusive. Some of the more interesting developments in tribal jurisprudence today involve the blending of contemporary court structures with substantive traditional law.
Your book demonstrates some of the problems occasioned by what you call “the most complex architecture” of legal jurisdiction. In light of your deciding to address these problems, I take the meaning of justice as one major theme of your book. Recently, however, some scholars, including political philosophers Lewis R. Gordon, Taiaiake Alfred, and others, have argued that justice is not enough for freedom and peace—that more may be required. What does justice mean to you and what, if anything, constitutes the “beyond” of justice?
It seems to me there is the formal justice that one would seek through the American legal system, which contains many components. There are the courtrooms and there is the legislation, congress. But there are many “sovereignty purists,” you could call them—I don’t mean that in any derogatory sense—who are people that are simply not interested in engaging with the colonial legal system. They do not see that avenue as a viable one. For them, to go to the colonizer and ask for justice seems counterintuitive. Perhaps the reason I differ a little bit from them is because I am a lawyer. I was trained in the law and that is where I am most comfortable.
I am, however, also very interested in decolonizing federal Indian law, which is under the auspices of the federal government. If we wanted to overturn, for example, a poor decision made by the Supreme Court, the only real mechanism for doing that is to go to the Supreme Court or Congress, and actually seek remedy there. I think what a lot of folks want to focus on is to seek out and find alternative pathways toward solutions. People are asking what we could do in our own communities rather than wait and ask for the blessing of the federal government. I do still see that as a form of justice. Perhaps the distinction is instead between the traditional American legal system’s “justice” and other forms of social liberation.
The difficult thing about these sorts of traditional values or systems which may still be in use in some shape or form is that, excluding what is developed in academic literature, they are really not accessible to an outsider. You have to be in that community and have the need for that process or system. For many of these systems, there is no written record. Navajo peacemaking is predicated on traditional concepts of balance and respect, for example, which do seem like universal concepts. But, if you were Navajo—and if you understood and grew up with the language, or even studied it carefully—I might find that your thinking about balance, harmony, or even justice has a specific spiritual or cultural component that me as a Mvskoke woman does not have access to. It is really difficult to find these indigenous concepts. Trying to assess whether they are even working well within a given legal system could amount to yet another level of inquiry and intrusion.
Another problem your work identifies is the utter lack of faith on the part of First Nation women regarding the possibilities of conflict resolution and healing vis-à-vis formal legal channels and political institutions. How do you restore this faith while simultaneously working to build the power and efficacy of indigenous jurisdiction and jurisprudence?
I think that Native victims of violence have developed mistrust with both Anglo and tribal institutions. While the instinct might be to say that tribal systems are better equipped to provide justice to Native victims, that assumption may not be correct if the tribal system has taken on the worst traits and trappings of the Anglo-American system. I think what many Native women want is a tribal system that is BETTER than the state or federal systems. It makes sense that someone would want their own government to protect them rather than a foreign government, particularly a colonizer government’s legal system.
You argue that sexual violence constitutes not only a physical but also a spiritual violation, identifying rape with colonization more generally and the protections granted in legal personhood with protections over the human psyche or soul. Does the spiritual dimension of many indigenous cultures, typified in the value placed upon land and ancestral relationships, offer distinct resources for healing and restoration for First Nation women who survive sexual violence?
Absolutely—for many Native people, spirituality is the key mechanism for healing. The Anglo-American model of justice offers very little for victims of crime in terms of well-being. A case is a criminal matter between the state and the defendant, and the victim is “only” a witness. Therefore, the system can never really address the spiritual harms that victims experience. A tribal system may be better equipped to address the needs of victims. For example, I have heard that in some tribes, when there was a violent crime, the clan relatives of the perpetrator were required to ensure that the victim and her clan had the necessary material goods for a healing ceremony. Because healing for many tribal people involves ceremony, this puts a heavy burden on the victim. To make amends, a perpetrator (and his/her family) should bear this burden and provide whatever is needed in terms of medicine, wood, food, and the like.
Another problem that I have heard about is the lack of access to sacred sites. For many Native people, spiritual healing is tied to a physical landmark (lake, river, mountain, valley, etc.) If the tribe no longer has access to those specific sites, it can be difficult to develop a comprehensive spiritual healing.
In your chapter on building an indigenous jurisprudence of rape, you provide a powerful glimpse into the history of Native responses to rape. The examples you give are ones of radically re-empowering women who have experienced the trauma associated with sexual violence. My immediate question is: How do we formalize the lessons learned from these indigenous responses to rape into a workable, systematized jurisprudence?
The reality is, that we live in a world with written laws. While some tribal nations continue to operate with oral traditions “off the record,” other tribal nations want to have written laws. I think that is a sovereign decision.
I think the bigger problem is the adoption of Anglo-American substantive laws without critique. Rather than copy and paste federal or state laws (which is quite common), I am encouraging tribal nations to develop substantive laws that are based on the real contemporary needs of the community. This can include the codification of certain principles—and even stories—within the substantive law.
I don’t think all tribal nations want to re-invigorate exact copies of systems that existed 500+ years ago. There are many reasons that is impractical, and tribal nations deserve to evolve and change as much as any government does. Evolving, changing, adapting—these are not necessarily colonial ideals. The key for me is whether or not tribal nations are fully assimilating to the point where there is no distinction between tribal and state courts—or whether tribal nations are able to maintain traditional principles and values that have relevance today.
Broadly speaking, your work addresses the issue of sexual violence as a manifestation of colonized human relationships and interactions. The recent “Me Too” movement, however, has not made rape the center of its conversation. What do you see at its center? What is its fulcrum point? How do you see your work on sexual violence against Native women connecting or not connecting to the “Me Too” movement? In what ways, if any, can your work inform the movement or even be informed by it?
The Me Too movement is so fresh and current for me that I have not fully developed coherent thoughts about it just yet. I am still trying to get my head wrapped around what it means and how it is relevant to Native people.
I do want to write an essay entitled “In Defense of Gossip”—discussing an indigenous perspective on spreading rumors about dangerous men. Because tribal women have not been able to depend on the Anglo-American justice system to keep themselves safe, the ability to “gossip” and “spread rumors” has been the only way to truly address entrenched patriarchal structures that protects abusers. This is sort of the same thing as Me Too— calling out abusers in order to shame them and protect others. The word “gossip” has such negative connotations, but I want to reframe that and think about gossip as an attempt to keep communities safe.
One of the things we do have to keep in mind when we talk about Me Too is that all kinds of sexual crimes—or, more specifically, inappropriate behavior against women—are part of a continuum of disrespect toward women. The most extreme version of violence against women would be homicide. That would fall on one end of the spectrum. On the other extreme would be a comment, or some form of harassment, that does not involve touching. You have, then, these two extremes, which go from not even touching all the way to killing someone, that is, murdering a woman. The problem for a lot of people is where Me Too falls. What exactly are we talking about? Are we talking about comments and gestures, are we talking about touching—where does it start?
It is already clear that people have differing perspectives on where it starts. However, if we are talking about shame as a form of action, if we are talking about actually calling people out who have abused their power, the question for a lot of people is what is bad or dangerous enough to trigger such shaming. Again, these behaviors toward women and other minorities are on a continuum of disrespect, and it has been very difficult for people to come forward.
The idea is to create a climate where people understand they are not alone. One of the biggest weapons that sexual predators of all stripes use is humiliation and silence. That can be a more powerful weapon than anything else they might use. The Me Too movement is allowing people to realize they are not the only ones on the receiving end of such behavior, and that the humiliation they feel is not unique to them. At the same time, I also understand the pushback when people argue that if someone is being rude to you that does not amount to sexual harassment. So the really important thing for me to underscore is this continuum of disrespect toward women, which underlies most of this.
I recently spoke with some elders in my community about Facebook being used by some Native women who are feeling very threatened right now. You know, they could use Facebook to actually call perpetrators out. I had contacted some of my mentors who are older native women and I said that I am worried about these women getting sued or getting charged with slander. Is that a safe place for them to be? The response of the elders was that yes, perpetrators called out on Facebook could certainly try to sue, but the victims do not have any money. So, what value would they get out of it?
The fact is that we are talking about both Native and non-Native predators. It is very easy to look at the Oliphant v. Suquamish ruling and point the finger at white men. However, we really are talking about Native men as well—men who have been in the community for decades and have been committing these crimes for decades. So, the conclusion I reached with my mentors was that we should put something on Facebook. In fact, it is about damn time we did so. This way we could at least warn other people. The essay I hope to write might touch on the “pre-Facebook” version of this exact process, where women would communicate with one another at powwows or at sporting events and explain to one another that they needed to stay away from somebody. There should be no shame in trying to do that in one’s community, but such forms of political action are often couched as gossip and rumor spreading.
I cannot end this interview without asking you about the young woman known only as “Amanda.” You explain that many present-day Amandas likewise suffer both literal and metaphorical “forced walks.” How are Amanda stories absent from our mainstream consciousness in the U.S.?
I am a Mvskoke woman, so much of my understanding of heritage involves the Trail of Tears (we Mvskoke people call it the “Road of Suffering”)
I think “removal”—no matter where it happened, is often sanitized, even by sympathetic historians. The gendered nature of removal is rarely discussed.
Native people are simply invisible in the United States. With some exceptions, the average American knows nothing about Native people, or has complete misconceptions about the lives of Native people. Thus, the stories of the marginalized Native women who are victims of sexual exploitation simply is not part of the national discourse.
I struggle with the resolution of the problem of invisibility. On the one hand, we could spend a great deal of time educating non-Indians, with the hope that they will become aware, sympathetic, and that this in turn will lead to political solutions. Or, we could spend that time focusing on internal tribally-led solutions which are not predicated on white people “getting it.” I certainly think we have to do both, but it seems that with limited hours in a day, the better focus might be the latter.
This interview originally appeared in Critical Ethnic Studies (August 14, 2018). It appears here, with modest revisions, with the permission of that journal.
Gregory E. Doukas is a doctoral candidate in political theory at UCONN-Storrs where he studies racism, sexism, and capitalism in the North American context. Specifically, his research focuses on the production of social pathology within institutional and normative life. His dissertation will take up the question of how white communities and communities of color differ in conceptualizing and responding to abuse. Doukas currently teaches a course called “Families, Intimacy, and the Political State.” He is also a musician in the band 3Gs.
Thank you for this interview.