Decolonizing Rape Law: A Native Feminist Synthesis of Safety and Sovereignty

Abstract

Decolonizing Rape LawA Native Feminist Synthesis of Safety and Sovereignty Sarah Deer (bio) A former secretary-treasurer of the Comanche Nation was convicted in Lawton on two counts of first-degree rape and sentenced to 20 years in prison, the prosecutor said. Melvin Ray Kerchee, 57, was found guilty Tuesday of raping two girls in 2002. They were 10 and 13 years old at the time. . . . The girls—now 13 and 15 years old—testified they were raped in the summer of 2002.1 Ramaris Paul Anagal, 32, of Chinle, Ariz., was sentenced here today to 25 years in prison for three counts of Aggravated Sexual Abuse and one count of Assault Resulting in Serious Bodily Injury. Anagal raped a female companion while forcing her to perform sex acts on his then girlfriend who was also traveling with them. Anagal pretended to have a gun during the ordeal. The girlfriend testified that she knew there was no gun but pretended to have one because she was afraid of Anagal. Both victims testified that Anagal told his girlfriend to shoot the friend.2 [End Page 149] The above described cases are but two examples of an ever-increasing epidemic of sexual violence committed against Native women and girls. In these cases, the Native defendants were convicted and received sentences of twenty years and twenty-five years, respectively. Each was prosecuted by a foreign government (the United States, not the respective tribal nations). The question I raise is—should the tribal government itself respond to such crimes? If yes, how—and what might a Native feminist analysis have to offer in addressing this crisis? Many people will argue that such crimes are too serious to be handled by contemporary tribal justice systems.3 Given the numerous legal and financial limitations faced by tribal court systems, they might say, tribal governments must simply rely on the federal (or state) system to prosecute and sentence such rapists. However, this over-reliance on foreign governmental systems has often been to the detriment of Native women. Today, Native women suffer the highest per capita rates of sexual violence in the United States.4 Conservative estimates suggest that more than one of three Native women in America will be raped during their lifetime.5 Rape was once extremely rare in tribal communities.6 Arguably, the imposition of colonial systems of power and control has resulted in Native women being the most victimized group of people in the United States.7 Moreover, statistics indicate that most perpetrators of rape against Native women are white.8 As a result of a 1978 U.S. Supreme Court decision, tribal governments have been denied their authority to criminally prosecute non-Indian perpetrators.9 Rape and sexual violence are deeply embedded in the colonial mindset.10 Rape is more than a metaphor for colonization—it is part and parcel of colonization. Paula Gunn Allen notes that “. . . for many people the oppression and abuse of women is indistinguishable from fundamental Western concepts of social order.”11 Sexual assault mimics the worst traits of colonization in its attack on the body, invasion of physical boundaries, and disregard for humanity. A survivor of sexual assault may experience many of the same symptoms—self-blame, loss of identity, and long-term depression and despair—as a people surviving colonization. The perpetrators of sexual assault and colonization thrive on power and control over their victims. The U.S. government, as a perpetrator of colonization, has attempted to assert long-lasting control over land and people—usurping governments, spirituality, and identity. Paradoxically, today authority over most sexual assaults on Indian reservations falls under the auspices of the federal government.12 Unlike most rapes in the United States, which are prosecuted by the state court systems, rape of Native women on Indian reservations falls within the [End Page 150] purview of the U.S. Attorney’s Offices throughout the nation. However, as noted by Indian legal scholar Kevin K. Washburn, “the system designed to address criminal justice and public safety in Indian country simply does not work.”13 Depending on an outside government, especially a government established and created by the colonizers (the historical perpetrators of rape), is...