Walking the Tightrope with Sarah Deer
Indigenous women and girls face some of the highest rates of violence in the United States—and often fall through the cracks of the federal and tribal justice systems. We talk to tribal law and victims’ rights expert Sarah Deer about her work to change that—while pushing back against mass incarceration.
Sarah Deer is a lawyer, professor, Muscogee (Creek) tribe member, MacArthur fellow, and an expert in tribal law and victim’s rights. She’s best known for her work on the reauthorization of the Violence Against Women act in 2013, but she’s dedicated her entire career to ending violence against Native women. We talked to her just after she was inducted in the National Women’s Hall of Fame this fall—and we had so much we wanted to know. Heads up: As you might guess, this episode talks extensively about sexual violence and child sexual abuse. Take care of yourselves when you listen.
If we can center the voices of Native women, and frankly women of color generally—center them rather than marginalize us—we can start to craft solutions that are going to help everyone. I mean, I think if we can solve rape in Indian Country, we can solve rape anywhere.—Sarah Deer, tribal law and victim’s rights expert and 2019 National Women’s Hall of Fame inductee | Photo by Natalie Sinisgalli
We talk about:
- What it’s like to operate from inside a system that was not designed to serve you
- How Sarah’s work played a direct role in the 2010 Tribal Law and Order Act
- Why the 2019 VAWA reauthorization is still stalled in Congress
- How Sarah makes sense of the tension between fighting mass incarceration and working with the legal system
Plus: How to decide which tradeoffs to make, what we can do to work within unjust systems without becoming part of those systems, and why there’s nothing empowering about having more women running fracking companies or payday lending schemes.
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SWB: Hey everyone. I’m Sara.
Katel LeDû: And I’m Katel.
SWB: And this is Strong Feelings, a podcast about work, friendship, and feminism, and what happens when you bring them all together.
KL: Today’s guest is Sarah Deer. She’s an expert on tribal law and violence against women, and one of this year’s inductees into the National Women’s Hall of Fame. She’s particularly known for her work on the reauthorization of the Violence Against Women Act in 2013, but her whole legal career has been dedicated to this issue of violence against Native women. So as you might guess, this episode is going to talk a lot about sexual violence and we just wanted to note that up front.
SWB: Mmmhmmm. You know, this interview was really interesting to me, because we got to dig into something that I’ve been thinking a lot about, which is: how do we work inside of a system that’s really problematic without becoming part of that system? In Sarah’s case, she talks about the criminal justice system and we talk about what it looks like to pursue legal charges against abusers and assaulters in the context of a system where mass incarceration is a big problem, and she’s thought a lot about that. But I think that this question comes up in all kinds of capacities, because it feels like there’s not a whole lot you can do in this world without making some kinds of tradeoffs. And so I think we need to come to terms with that.
KL: Yeah, right. I mean, we just talked to Gloria Allred, and I think she has a career full of tradeoffs. You know, on one hand she’s helping victims move on with their lives, and in a really specific way—taking money in a private settlement and not having to relive and perform their trauma. I can see how that’s worth a lot. But then private settlements don’t do much toward the quote-unquote “greater good” of exposing men and holding them accountable. But. On the other hand, why is it the victim’s job to be part of the process of holding men accountable?
SWB: Yeah, I think that’s an area where there are just a really big tradeoffs between working within the system as it stands versus trying to change it. And I can see how you can end up on different sides of that. Like I can understand why, for example, a journalist would look at private settlements as a big problem because journalists tend to value information, they tend to value transparency—like, they want to know everything, and they want everybody to know everything. Makes sense. And then from a victim’s perspective, I can see how it might really depend on what your needs are at a given time or what risks you can afford to take. And you know, it’s very, very risky to go public with something, and it’s pretty much impossible to hold men accountable without women’s stories having to also come out with them and then that’s a huge thing for them.
SWB: And you know, I think wherever you end up on that sort of morally or ethically, I do think it matters to recognize those tradeoffs and to really say, okay, am I just accepting this screwed up system because it’s easier, or am I actually resisting it? Like, what am I doing to change it?
KL: Yeah. And I think it can also feel like it’s really hard to know what the difference looks like.
SWB: Mmm. I think a lot about this, when I think about my work at a rape crisis center in college. So they had sexual assault advocates there who would assist survivors through the legal system, and that meant that they worked with law enforcement a lot, and they were doing things like filing charges a lot. And that was really the first time I encountered people who were calling out sort of the problems with policing. And I remember one of the advocates being so frustrated when she had to work with the police, because she felt like encouraging more sort of police interaction with the communities was not necessarily helping them. And at the same time that was a part of her job because she was there to advocate for victims, and when victims want to file police reports—
KL: That’s how you do it.
SWB: —that’s how you do it! Right. But for me personally, I worked with the education program so I didn’t have to do some of the hardest tradeoffs, but I did engage in a lot of what I would call like hyper-controlled subversion.
KL: Wow, okay. What, what do you mean by that?
SWB: Okay. So our primary goal was to talk to kids about sexual abuse, and that meant that we needed to get into schools. That was the best place to do that. And so sexual abuse is so prevalent and personally as a survivor of childhood sexual abuse, I know what it’s like to keep that secret, to not be able to talk about it. And I know the way that trauma compounds over time. So the earlier we could talk to kids, the better. That was the goal, right?
SWB: But school boards and parents were nervous around us and they’d get concerned that the topic was too adult for kids or quote, “too scary” in some people’s minds. They were like, “Oh, you’re talking about sex, and we don’t want our kids to know about sex.” And I mean, no, this was about abuse. This isn’t really about sex. Although we had to talk about that in some ways, but I don’t think this is something we can just write off as saying, “to adult,” right? Like you have to talk to kids if you want to help keep them safe. So we were always trying to get into elementary schools, and that was because we knew that by elementary school, kids were already encountering abusers in their lives. And so that might actually help them stay safe before they were abused or get help much sooner. But it was really hard. We got a lot of pushback. Our curriculum had been designed explicitly for first graders, like very explicitly every bit of the curriculum was designed by a woman with a PhD for first graders. But it was still very difficult, even though it was mostly around bodily autonomy, like, “your body is yours; if something makes you feel funny, you can tell an adult about it,” what it means to say “no,” touch that felt safe versus unsafe, that kind of stuff. And yet it was still really hard to get embedded in a school with that age group. Like that was still kind of too much. Too much, too much.
KL: Yeah. That sounds so challenging. And for me, this goes back to the fact that young people understand way more than we give them credit for. And you know, children in particular like young kids I think really want to be listened to and they appreciate being trusted that they know what feels good or bad to them.
SWB: Right. Like when we would talk about things like, you know, when a family member demands that you hug or kiss somebody or they want, they’ll say, “get in my lap” and if you don’t feel good about it that, you know, listen to your body.
SWB: Yeah. So ultimately though, what we ended up mostly doing was talking with sixth graders. That was the youngest we could really consistently get the approval to go in and talk with and we were really successful with that program. We had a lot of long-term relationships with different schools all over the county and we’d go in to talk to all of these different sixth grade classes. But still, I mean parents were very nervous or administrators were nervous, and we’d get a lot of questions. And what we had to do is basically deliver curriculum that was as direct and real and useful as possible, while also very carefully avoiding things that would be a flag for anybody who was reviewing it or that would maybe be perceived as going quote-unquote “too far,” or being too adult or whatever. Even though the reality is, the nature of sexual abuse is that adults are putting kids into situations that are too adult. That’s kind of what we had to talk about. So that’s really what I mean by controlled subversiveness, is that like, how do we get as much of this information to kids as possible? How do we push boundaries as much as possible, water it down as little as possible, but not get kicked out of these schools?
KL: Yeah, that’s a really, you know, that’s a challenging approach.
SWB: It was and I have zero regrets about making those tradeoffs, because ultimately that’s what it took to keep more kids safe and to get help for more kids. I mean every single school I went into there were kids who disclosed abuse that was already happening to them or that was happening to a friend, and they were often just itching to talk about it. Like they had never had anybody who had asked them, or who had made it seem safe to tell, or who had even just contextualized what was going on and said like, look, this is abuse, and you can tell us. Nobody had said that to them before. So I feel like it was so valuable that I was doing that work. And I also think our schools need to do a lot more, a lot sooner. I think our public education system is pretty screwed up. I think that these kids could have handled even more direct curriculum. All of those things. But I think that, the more kids get the information that I was able to give them, the more of them get help, fFewer of them are scared, more kids are learning about consent earlier on. And that all creates ripples that I don’t actually see. But I know that they’re out there. And there’s not really a downside, right? Like there’s not a downside in that context to working inside of the system and disrupting it as much as I could. Even though I would support another group who would, say, do something that was more radical in terms of education, and do it in a program that was outside of the schools. That’s awesome. That’s great. But it doesn’t take the place of meeting people where they are, and getting inside of schools was so crucial for that. So that’s what we did.
KL: Yeah. I mean it’s like you’re playing this really intricate game and trying to strike a balance. You’re pushing the boundaries to do the good because that’s your ultimate goal. And also trying to keep a certain amount of footing within the system so you can keep doing the work.
SWB: Right, getting booted out of the system because you’re just too much. Doesn’t change the system.
KL: Right. And this is not the same as working with school kids and educating them about sexual assault. But I think I struggled a lot with, you know, striking that balance, and also I didn’t see a lot of examples of how to strike the balance, When I was at National Geographic. You know, we’ve talked a little bit about it before, but it’s a problematic organization. You know, its roots are based in a lot of colonialism, as a scientific journal created by cis, het white men to explore other parts of the world. And that is a legacy that includes pretty deep patriarchal structures within the organization that were still very apparent when I was there. And I’m not saying there weren’t people who did look for ways to subvert the system or make small tweaks to try to change things, but even then it felt really safe.
SWB: Mmmm. Safe. Okay. Tell me about that. What does that mean?
KL: Like when a woman was promoted to chief marketing officer of one of the divisions I worked really closely with, all of the white male leadership fucking patted themselves on the back. And I mean, to me it was fairly transparent. This woman was the exact right type of woman. You know, someone they could take credit for lifting up through the ranks, it was so honorable—but also someone who is squarely aligned with that power structure and in some cases perpetuated it.
SWB: I think this is exactly why we have to push back against the kind of white feminism of the endless fucking women’s empowerment conferences that reduce gender equality work to “go get yours” as if a bunch of women getting into corner offices, but then doing the exact same shit that men have done to exploit workers and the planet forever is somehow good or solves the problem. Like, we do not need more women out there in charge of fracking companies and payday lending schemes.
KL: Uh. No thank you.
SWB: I have definitely worked with that woman. You know, like the one who’s like, “well I had to climb my way to the top while being underpaid and sexually harassed for two decades. So, it’s called paying your dues, and now you’re going to do it too.” You know? And when you see that behavior, I think you’re just seeing somebody who’s definitely become part of the unjust system. Like, Oh, so she had the boot on her neck and now she is the boot. Congratulations?
KL: It’s terrible.
SWB: Okay. So here’s my question. Do you feel like you were able to resist the system there, and how did you do that? Or in what ways did that work?
KL: I think it started to feel really overwhelming and corrosive for me. But what was even worse was that I saw it affecting my team. And I saw it eat away at their confidence and creativity and ultimately their own willingness and courage to want to change things. And when I was in the depths of that overwhelm, it was easy for me to focus on my team. You know, trying to shield them from toxic bullshit or create little pathways for them to thrive or just by being transparent about what was going on so they could make informed choices about their work and those felt like tactical things I could do. But it still never felt like enough.
SWB: Yeah. And I think that’s one of the hard parts is that most things don’t feel like enough. Right. Especially because no matter how much you do, how hard you push, you’re never really outside of the system. Like the macro systems, right? Like the systems of patriarchy or white supremacy or advanced capitalism, like those are all around us, those are the air we breathe.
KL: Yeah. You know, something that really stuck with me from Nancy Luna Jímenez’s workshop, who we had on the show earlier this year, is how she helps people acknowledge their roles within systems and she offers a moment to recognize like, okay, you may not have chosen to be in one or more of these systems, but you are and you’re benefiting from one or many of them.
SWB: Right? Like you were feeling the pain of those systems at National Geographic, but you were also gaining power by being a white woman mostly operating according to the rules.
KL: Yeah, that’s exactly right. And I know it seems obvious, but I think it can be a really big lightbulb for folks. You don’t have to create the system to benefit from it, and benefiting from it is also institutionalized. So I think once you recognize that the next step is to take responsibility and take action, you know where and when you can. And I think back then it felt like I was doing everything I could, but if I assessed it today, I’d question whether that was true. Something I’ve realized is that subverting any system often takes time and intention and practice and it happens really slowly, which I think can add to that overwhelming feeling—that feeling like you have to try to do everything. But there are a lot of small ways to work toward dismantling and decolonizing something. It doesn’t always have to be putting your life or livelihood on the line. I mean sometimes it does.
SWB: Right [laughter]. Yeah, I think there’s something about figuring out how much power you have in a given context. Like if you are in survival mode, your ability to dismantle the system will be lower.
SWB: And it can be valuable to get to a place where you have more stability and you can handle more risk and then start to really make a scene. Like when the most junior, queer, woman of color on the t stands up and says something, that’s a very, very, very big risk to take, you know? But I also think that it can be a dangerous approach to kind of look at it as like, “well, once I have more power, I’ll do something.” Because I think that power definitely changes people. It’s very easy to get comfortable, to enjoy the things that having power gives. So you conveniently kind of put off actually doing anything to change things. Or sometimes I think that it’s hard to see yourself as you currently are. You’re kind of always looking back on yourself a little bit. So you can end up amassing power and still seeing yourself in sort of that prior reality. Right? Like you see yourself as having less power than you than you really do.
KL: Yeah, absolutely. And like you said, it’s not just about making one choice at one point in time. I think you really have to start, if you haven’t already, and routinely ask yourself the questions of, “okay, is it time for me to step up?” And, “where is my risk tolerance in this situation?”
SWB: Mm. Yeah. I’ve been asking myself that a lot more the last few years. And I know that my risk tolerance has gone up a lot as I’ve done it, because, and I know it’s going up because I think I actually started to see some of the ramifications of it. Like there are things that I’m not invited to because I am too much for them. I’m too political or I’m too critical. I’m too willing to call bullshit. And not everybody wants that. Not every, you know, not every client or every conference or whatever is looking for that. And in my opinion, that is part of how I know that I’m where I need to be, because if I never felt like I was losing anything in the process, then that probably means that I’m being too easy on myself.
KL: I love that that you said that. All right. I mean, we could talk about this all day, but I think we should get to our interview with Sarah, because her work is what really inspired us to have this conversation. [short transition music plays]
Interview: Sarah Deer
SWB: Sarah Deer is a lawyer, professor, Muskogee (Creek) tribe member, MacArthur fellow, and an expert in tribal law and victims’ rights. She’s spent her career dedicated to ending violence against Native women, and as of this year, she’s a member of the National Women’s Hall of Fame. Sarah, welcome to Strong Feelings. We can’t wait to learn more from you.
Sarah Deer: Oh, thank you for having me.
KL: So first of all, congratulations on the induction into the National Women’s Hall of Fame. What a cool honor.
SD: Yeah, it really was. I was really surprised. And then you know, I got there and I realized that many of the inductees are 30 years older than me. So I felt like maybe I’m peaking too soon here. I don’t know.
SWB: Or you’ve just packed a lot in already and you’re going to continue on that trajectory.
SD: I hope so. I hope so. I hope this isn’t the end.
SWB: I don’t think it’s the end, but I do want to back up for a second here and ask for those listeners who aren’t familiar with your work yet, can you tell us a little bit about it? I mentioned you’re a lawyer and a professor and a MacArthur fellow, and I read that you’re also a tribal judge, and that’s a lot of different things—and I didn’t even mention everything. So can you just tell us a bit more about what your work focuses on?
SD: Well, no matter what you know, sort of hat I wear or what label you attach to me, I’m almost always going to be talking about violent crime on Indian reservations, whether I’m doing it as an attorney, as a professor, as an activist, or even as a judge. Those are my priority issues. And I’ve tried to expand my horizons a little bit, but it seems that I have enough with just that issue and it’s an all-consuming part of my career.
SWB: And so you work as a professor at the University of Kansas, right? And then you also do legal work working directly with victims of sexual violence and also a lot of different advocacy work, work on policy. How does that sort of play out in terms of your daily schedule? It sounds like a lot of different things.
SD: Well, I have to admit, I’m not an expert on juggling. I think I’ve been juggling just because it’s what presents in front of me. But you know, there are times where you just really do have to give yourself permission to take a day or two off. I find myself working through the weekends and that’s just not a healthy, sustainable way to live. So I’m working right now on that juggling and maybe putting one ball down every once in awhile.
SD: Yes. Well we are big fans of that. We’ve been talking a bit about that lately too about the pressure to hustle all the time and go, go, go. And the way that that can kind of lead you to burnout and in a profession where you’re dealing with so many vulnerable groups and so many difficult issues and so much sort of government inaction, I bet that it’s really easy to get into that place where you feel like you have to keep going all the time and then nobody can do that.
SD: And you know, I’ve also seen people say stop the glorification of busy, which I think is true for a lot of us in academic jobs. It’s like we’re always supposed to be adding more to our plate. And you know, I want to be here for students first. And that’s sort of my philosophy, but it’s difficult to balance all the obligations of being a professor.
SWB: How did you first get involved with the work to end sexual violence against women?
SD: Well, yeah, I’d have to date that back to 1993. I was 20 years old at the time and I had just transferred to the University of Kansas actually. But I decided that I was interested in working as an advocate for survivors. So at 20 years old, a junior in college, I went to the local rape crisis center. I applied to be a volunteer advocate. I was accepted and I started being on call within a few months. So I did six years of that work. So one of the things that we would do as advocates is we would go to court with survivors. And I started to kind of watch the theater of the courtroom, if you will. And I thought, well, you know, I think I could do that. I think I could be a prosecutor. I think I would be a sensitive, victim-centered prosecutor. And so that was why I decided to go to law school. The sort of long and short of it is I’ve never been a sex crimes prosecutor. So, you know, I started out with one idea and it sort of morphed once I got into law school.
SWB: Yeah, how did that end up morphing for you? What ended up drawing you away from the prosecutorial side?
SD: I think it’s just the job that I got after law school. I was on the track to be hired by a county to serve as an assistant district attorney, prosecuting cases. I probably wouldn’t have started out with sex crimes, but I would have worked my way up. But I got a call during the, actually, finals of my third year of law school from the Department of Justice offering me a position in the Violence Against Women office. And I’d actually forgotten that I applied for that job. And when the federal government moves on personnel actions, they move very slowly. So I had actually applied for that job back in like September of my third year, and it’s May and they’re calling me. And it was just an offer that was too big to pass up. And so I decided to go and be a bureaucrat for a few years.
SWB: And what did you find out in that process? Like what was it like working, as you say, as a bureaucrat, but working specifically on violence against women issues in the 90s?
SD: Well, it was the late nineties and early two thousands but it was, it was interesting. You know, I arrived in DC the day after the bar exam, and I was immediately thrust into this amazing world of women that had sort of crafted the Office on Violence Against Women. Of course, VAWA had only passed five years earlier. So we were still learning and growing. But what I loved the most about that job—and I kind of say bureaucrat tongue in cheek, but that’s really what I was—I had an opportunity to talk to all of the movers and shakers in the grassroots movement to end violence against women. And I don’t think there’s any other job that would’ve given me that kind of opportunity. So, I only lasted three years, but it was a full three years.
SWB: I’m also really curious, you know, going back to the conversation about being interested in tribal law and advocating for Indigenous communities, and I’ve seen you talk before about how many Indigenous people are what you call “sovereignty purists” who don’t want to engage with the colonial legal system. And you have sort of built a career operating from inside of it. And I’m curious if you could tell us a little bit about how you made that choice, and sort of how you think about being inside of that system while also critiquing that system.
SD: What I think is important for me and other people who do the work that I do is to keep our ears open and our eyes open to what the critics are saying. Once we shut them off, we can’t learn from them. And so I’ve been kind of put in my place a few times I think by people who do dislike the idea of engaging with the federal government to make change. I guess for me, my skillset sort of lies in the legal field. I mean I was trained in American law. It’s something I feel confident with. And so I engage with that system. For me also, and this is not to slight people who may feel differently about it, the reality is that the federal government controls us in many, many ways as Indigenous people. And if we want to get them off our backs, we’re going to have to do that through their system. I mean that’s the way I see it. And another another factor for me is, it goes back to those days working on a crisis hotline, right? So there are women and men and two-spirit and non-binary people all throughout Indian Country who are being brutalized, who are being subjected to some of the most horrific kinds of abuse that you can experience. And for me it’s an emergency situation. And that’s another reason that I choose to make compromises at times in the work that I do because I’m hoping that it will make a difference on the ground. I feel like sometimes if we wait for the perfect pure sovereignty world, we’re going to lose a lot of people in the meantime. So I keep my eye on people who disagree with me. I try to keep the lines of communication open. But in the end, my skillset and my instincts are what lead me to work within the system. For many of us that work in Indian Country, it’s, it’s that question of how much do we engage, how much do we pull back? And it’s always a delicate and it’s always walking a very fine line.
KL: So then in 2007 you coauthored an Amnesty International report that was incredibly info influential maze of injustice on the realities of sexual violence against Indigenous women in the US. And you noted, for example, that more than one in three American Indian and Alaska Native women will be raped in their lifetime, and that women on reservations were particularly vulnerable. What led you to authoring that report?
SD: Well, I didn’t know much about human rights, grassroots human rights, work, but they reached out to me. I had left the Department of Justice a few years prior to that, and I was really interested in continuing to work on violence against women without being in the federal government. And people started to know my work and what I was doing. And so Amnesty International USA actually reached out to me and I was working at the time for a nonprofit called the Tribal Law and Policy Institute and they were looking for a partner to do research on sexual violence in Indian Country. So by that time the statistics were out. I mean, the statistics were released back in ’99—it’s hard to believe it’s been 20 years—but nobody had really gone beyond the numbers, right? We just had this kind of dry, dehumanizing data. What Amnesty could bring to the table is to humanize that data and to humanize the stories. And so I was really excited to work with them and ended up—I actually was diagnosed with breast cancer in the middle of our research. So I ended up kind of transitioning to the writing of the project because I, I really couldn’t travel. Yeah. So that’s, that’s how it started. I had no idea, though, that it would have immediate impact. I kind of thought, again, not having worked with Amnesty on anything before, I kind of thought, “well, this is going to really wake up a lot of the advocacy organizations out there, you know, for battered women’s shelters and sort of mainstream feminist work, it’s going to enlarge their capacity to understand our issues.” But what happened is within 24, maybe 48, hours of the release of that report, we started getting calls from staffers on the Hill.
SWB: Oh wow.
SD: I mean, I was putting my suitcase up in the compartment above the airplane seats, and I started getting phone calls on my way home from DC, because we did a press conference and a release, a formal release in DC, and I traveled there against my oncologist’s wishes, but I don’t actually, I don’t think I ever told him. But yeah, so within a couple of days we were back on the Hill and we were talking to staffers about legislation. I had no idea it would be that fast.
KL: Wow. That’s amazing. So how did this ultimately lead up to the 2010 Tribal Law and Order Act? Can you tell us a little bit more about that act and what it changed?
SD: It changed a lot, but also not. I mean, there are provisions in the Tribal Law and Order Act that happened, implemented that have made some changes on the ground, but there’s still a lot of work to do. So basically what we were trying to get after the Amnesty report came out was we were doing—we had sort of two tracks of reform that we were looking at. The first track was to improve the federal government’s response, because what we found in our research is that many survivors who do come forward, and that’s a significant minority of survivors. We were not feeling like the federal justice system cared about them, or that the prosecutors or the FBI agents cared about them. And so we really wanted to make sure that until full sovereignty is returned to tribes, we need crime control. And so that was, that was sort of track one. But the more important track, track two, was to restore authority to tribal nations so that we can take on these crimes on our own terms. So it was sort of bifurcated between the two. And I think for me the more important part was the restoration of tribal authority. Now it was a minimal restoration. You see, prior to the Tribal Law and Order Act, the government limited a tribal court sentencing authority to maximum of one year per offense. And that would even apply in a murder case. Also rape cases and child sex abuse cases, the maximum penalty would be one year. So people kind of laugh because the Tribal Law and Order Act gave us three years per offense, which doesn’t seem like much of a step. But for a lot of survivors I think it would make the difference between coming forward and not coming forward. Three years is a different kind of world than one year. I think for me that was the more important piece. How do we, you know—fine, federal government, you need to shore up your stuff and get out here and help. But also we need to be pulling away and ultimately returning authority to tribes, because tribes are in the best position to support and make life safer for their citizens.
SWB: Now kind of going forward from there, something else you’re really well known for is playing a pretty instrumental role in the reauthorization of the Violence Against Women Act, VAWA, which you mentioned before, in 2013. And that was after there was this huge legislative battle that started in 2012, right? Again, that’s for legislation that had been reauthorized multiple times with bipartisan support. But it was different that time that you started working on it. And so I’m curious if you can talk about that story a little bit. How did you end up working on VAWA, and how did you eventually get that suddenly contentious bill reauthorized?
SD: Well, I ended up in academia by that point and there is a certain amount of freedom in academia. Even before I was tenured, I felt much more comfortable engaging with law reform. You see when you work for the federal government, you can’t do that. And then I was working for a nonprofit that received federal dollars, so I couldn’t do that. And so by the time I landed in academia back in 2008, actually I had more flexibility and I didn’t have to answer to the federal government anymore. So it was a position that for the first time really allowed me to openly engage with law reform. So I just know a lot of people that are on the Hill working on this issue, the National Task Force to End Violence Against Women, which is sort of the umbrella organization. And I started engaging with the idea that we needed to restore tribal authority over non-Indians because the Supreme Court ruled in 1978 that non-Indians are exempt from tribal jurisdiction. So we had to fix that. And that’s what we were trying to do in 2012, and it ended up just blowing up in our faces, and it took a long time to fix.
SWB: And one of the reasons you needed to fix that, just to be, to be clear for people, that’s because you would have white offenders of sexual violence on a reservation that were not then being prosecuted by the reservation and also not being prosecuted by any other jurisdiction, right? You were getting into these loopholes, or like a black hole, of jurisdiction.
SD: Right, exactly. So if you’re a non-Indian and you live on a reservation, or even if you just come into the reservation for work or something along those lines and you commit a violent crime, the tribe can’t do anything to stop you. They can’t arrest, they can’t prosecute. They have to depend on another government to come in and do that kind of crime control. And you’re right, the government, the federal government wasn’t doing it. The state governments weren’t doing it. And the tribes couldn’t do it. So we really were seeking a full fix of that problem. Which is interesting because the Supreme Court is usually the final say in what the law is. There’s a different kind of twist to it with Indian law: Indian law, Congress has the final say. So Congress can fix the mistakes that the Supreme Court makes, which is usually not possible. And so that’s why we went to Congress. Litigation had not born out any success or any improvement. So the next step was Congress.
SWB: And why was that so difficult to make progress on in Congress and why was it such a legislative battle?
SD: The controversy arose for three reasons. The first was the work I was doing with others, which was to address tribal jurisdiction. The second was to improve and enhance the ability to protect immigrant victims of domestic violence. And the third were more provisions that would ensure protection for LGBTQ survivors of sexual violence. And those three issues, because we—they were new, we were trying to push some new provisions—the Republican establishment just kind of, they couldn’t deal with those provisions. And so they started opposing the whole Violence Against Women Act because they didn’t want those provisions to be passed.
SWB: And what did it take for that to finally be passed? I mean, it was like a year of battling this out. And then how did it finally kind of come together?
SD: Well, we had the opposite problem in 2012 and 2013 the Senate had passed the law that the house was sitting on it. And now we have the kind of the flip of that. But it was actually a Republican Congress, a Congressman that actually convinced his colleagues to back off. He was the only Indian in Congress at the time. Tom Cole, he’s a Republican from Oklahoma, and he’s Chickasaw. And he supported the provisions for tribal jurisdiction from the beginning, but he was kinda quiet about it. At one point I talked to him, he said, “we haven’t totally war games-ed this out yet,” which I thought was an interesting choice of words. But you know, it was the last few days that Congress is going to be in session. The Republicans were still sitting on it. He really made a lot of calls at that last moment and said, “look, you know, I’m Native, I’m Indian. I’m the only member of Congress that can be held accountable by a tribe. Now come on.” And that convinced enough Republicans to reluctantly, very reluctantly, vote in favor of those provisions. But sometimes I think, the holdup was really about at the core of it, you know, anti-Indigenous racist ideology. You know, I heard things during the legislative battle like, “well, tribes can’t possibly be fair to outsiders.” Well, where does that come from? Where does that idea come from? I think sometimes these guys just watch way too many westerns growing up. And I say guys, because we only had, you know, Republicans that voted for the changes and it’s a minuscule change. So again, it was like a little baby step, like the one year to three years, this was, it only lifted the ban on jurisdiction, for cases of domestic violence. So domestic violence only. So crimes like child sex abuse or sexual assault on an adult, those are still not covered. And that’s what we’re working on now.
SWB: Wow. Yeah. And that, that just seems like such an example of the kind of everyday white supremacy, right? Of like, “Oh well a tribal court couldn’t possibly be fair to people who are outside the tribe.” But what a colonial court, a colonialist court, is fair to others. It’s such a common trope that you hear when whiteness is so centered.
SD: Yeah. I was talking to some grandmothers out in Indian Country one time and I was explaining to them what the issues were. And I mentioned, I said, you know that the Republicans opposed having tribes prosecute white men essentially and one raised her hand. And she said, well can we flip that for a second? Because my nephew got a pretty bad, bad deal from minor crime in white court. So it’d be cool if we could flip that around, but of course that would never happen. Right?
SWB: Yeah. Yeah. And I think you hear all kinds of those stories where, you know, whiteness is neutral. So I do want to ask more about the current moment with VAWA though, which you’ve alluded to a little bit. We’re at a time when VAWA reauthorization is once again stuck. And I’m curious if you can talk us through a little bit about what’s going on now and what the issues are that are at stake.
SD: It’s important to acknowledge up front that there are many, many feminists that are really pushing back on VAWA, because it really basically just strengthens the punitive criminal justice system, prison industrial complex, you know, the whole litany of neoliberal responses to women’s issues and queer issues, that kind of thing. And I continue to work on it despite that. I try to push back when I can and say, let’s pull back on the mandatory arrest and the high sentencing and, and, and some of those issues. But I’m still really committed to restoring jurisdiction to tribes. And it seems that VAWA is a good vehicle to do that. So I kind of, again, it’s my tightrope, sort of dancing around some really complicated issues. But what we’re trying to do now is ensure that tribes can prosecute other forms of violent crime committed by non-Indians. So we want to just—you know, I said a minute ago about child sexual abuse, rape child abuse in general—we’re trying to restore that authority to tribes. Because tribes never relinquished it voluntarily. It’s not like we showed up in Congress and said, “please take our rights away.” So it was all done unilaterally. And you know, one of the things that VAWA wants to do is to restore authority, so that tribes can stop depending on the federal government for crime control because it isn’t working. And the federal government’s criminal justice system is very harsh and punitive, and doesn’t offer rehabilitation for sex offenders. So we want to move eventually to full tribal authority over these crimes, but it’s going to take a really long time to get there. That’s just part of that journey, is the current iteration of VAWA.
SWB: Yeah. And I definitely want to ask a little bit more about sort of the carceral state and how we think about justice in it. But before I do that, I want to ask a bit more about tribal law, because we’ve talked about it a bunch, but I think most people listening probably don’t have any experience with tribal law and there’s many tribes across the country that may have different laws. And I’m curious if you can talk a little bit about what people should know about tribal law. Like, when you say something might happen in a tribal court, what does that mean and what does that tend to look like?
SD: Sure. Well, I’ll preface my explanation with the fact that there are over 570 federally recognized tribes in the United States. That’s a lot more than most people think. You know, they might think of 50 or 60 or 10. You know, I often ask this when I’m doing a public speaking engagement, “how many tribes do you think there are?” Every, every tribe has its own government. That’s what tribes are, they’re governments. And what I often try to do is add the modifier “tribal nation” because we are governments, and not just mere membership clubs or cultural groups, right? We are governments, and governments have sovereignty. So, you know, the government, every government on the planet has the ability to make laws and be governed by those laws. And tribes started out with the same thing. You know, the boats got here from Europe and we were governments, monitoring our own lives. And so sovereignty is a concept that we all sort of take for granted in other contexts. Like we don’t…I mean, I’m sitting in Kansas right now, I’m not really worried about Kansas sovereignty. You know, it’s not going away. Kansas is the government. They’re making laws and we’re governed by those laws. But when we moved to tribal nations, the of authority sovereignty has been limited from the outside by federal law. So the federal government has slowly chipped away at the ability of tribes to act as full governments. That’s what we’re trying to address. So tribes can prosecute tribes. Not all tribes do, but tribes, those governments have the ability and the right to prosecute people who commit crimes, except for non-Indians, in this case. And our governments can look very similar to what we might see in the state court system, but some tribes are doing things on their own terms in a traditional way. We call it often “peacemaking,” which is a different way of thinking about responding to crime. So it’s hard to sort of summarize, “here’s the sort of story of tribal courts.” Because we have so many, but that’s essentially what sovereignty means and what it means to be able to protect your own community.
SWB: Can you tell us more about peacemaking? I’m really interested in sort of this alternative model because I think for a lot of us who are thinking critically about the American justice system, it’s helpful to get some context of like, “what are the other ways that we might be making decisions about crime?”
SD: Well, peacemaking is really controversial when applied to violent crime. It’s, I guess, akin to what we might call mediation or restorative justice in the mainstream justice system. And a lot of people think it’s great idea, except for violent interpersonal crime. You know, it’d be great to, instead of arresting juveniles and throwing them in juvie, why don’t we have the community come surround this child with love and with support and compassion, right? Maybe that would be a better. I’m laughing because it seems so obvious, you know, that we would be able to do more to change that child’s life by bringing the community together and offering support rather than incarcerating a child. So I really do believe that peacemaking has its place. It depends on the tribes. So some tribes who have been operating with their traditional justice system uninterrupted, right? Since 1492 they’ve managed to hold onto it, and are still working in that world of restorative justice. But most tribal nations had been assimilated to a great extent and really operate with, you know, sort of the law-and-order model that we see in the mainstream legal system. And some do both. Some say, well, we’ll have our criminal justice system, right? But if a victim and a perpetrator want to bypass that experience and move into a mediation, restorative justice, peacemaking model we’ll allow that and we’ll make sure that can happen. So it looks somewhat like restorative justice, depending on the tribe. Some do it all in the traditional language. They have medicine people there to offer ceremony and it’s all really done within that community. I struggle with it when violent crime comes to the forefront though, because I worry about victim blaming. I worry about victim blaming in the mainstream justice system, don’t get me wrong. But I worry about it in restorative justice contexts too. And I think that I just haven’t heard of it working very well. I think I haven’t had an example. I mean I’m sure there are places where it’s working well, but they don’t necessarily broadcast it to the world. I struggle with it though because I worry that if we’re sitting in a circle and it’s informal and it’s sort of, “we’re all here to address problems in our community,” that it might come back to “”blame victims.
SWB: It seems like that’s something that comes back almost all the time. It’s so common to blame victims. Yeah.
SD: Yeah. Almost every system you can think of has the potential for victim blaming. And I just want to make sure we do our best to prevent that whatever system we’re using.
SWB: Yeah, and I do want to ask a little bit, you know, connected to this idea of restorative justice. There are a lot of people who have sort of talked about the concept of carceral feminism, right? So like feminism that is advocating for locking up rapists. And a lot of us having that gut reaction like, yeah, we should lock up the rapists. And then also we’re looking at a country, you know, looking at the United States, we’re looking at a country that has incarcerated a huge amount of people in incredibly, I would say incredibly violent ways and incredibly harmful ways, and are part of a group that has been historically marginalized and incarcerated at higher rates. And I’m curious sort of how do you try to make sense of that? You’ve mentioned that it’s a tightrope. You’ve mentioned that it’s hard. How do you kind of navigate those feelings and choices and tensions on a day-to-day basis?
SD: I want our communities to be safe. And the reality is that there are serial offenders that are devastating our communities, and some of them need to be removed. Now, maybe it’s not to federal prison. Maybe there’s a way that we can develop rehabilitation centers. But they need to be out of our communities. Because it’s not just the attacks that are the problem. It’s that continuing psychological trauma of seeing your perpetrator walk around your community free and perpetrating against other people, right? And I often will say that the prison industrial complex is a tyranny, but when you have no law enforcement, when you have nobody responding to the crimes, that’s also a form of tyranny—because you’re leaving people at the mercy of predators. And I know there has to be a way. There’s not going to be a perfect answer to this, but I feel like we have to balance our critique of over-incarceration with the reality that many rapists in Indian Country are never held accountable. So is there a happy medium? I don’t know. But I do think there are—and this might be a minority of offenders, and that’s important to note as well—that cannot live safely in our communities. They’re terrorizing people. And I don’t want to say, “lock them up, throw away the key,” but survivors are devastated. This is ruining lives. It’s causing suicides. So I have to figure out how to remove these people from communities without adding more fuel to the fire that we just lock up Brown people to solve problems. I’m not answering the question of how I do that. I’m just… for me, I’m just thinking of those crisis calls: “He’s raped me 10 times and I can’t stop him and nobody will do anything.” I mean, that’s tyranny too.
SWB: Yeah. And I think if there were an easy answer here, somebody would have come up with it already. And there isn’t. But what I appreciate is you kind of talking through that complexity, because I think that, you know, too many of us maybe haven’t really dealt with that complexity, or like kind of, we want to hold both of those thoughts in our head, but not at the same time. And so I appreciate kind of trying to tussle with all of the difficulty there.
KL: So you’ve been at the forefront of this work for a really long time now. You know, this intersection between Indigenous rights, tribal law and violence against women. What’s changed for Indigenous women and what hasn’t?
SD: Well, I think we’re stuck with some of the challenges we’ve already talked about: tribes really struggling with how to respond to crime. And it’s going to have to be, you know, individually. There’s not going to be one policy that’s going to work well for all tribes. I mean, you have some tribes that have, 200,000 citizens, and you have some that have 14, right? So the solution is going to look very different depending on where you are. One of the things that’s emerging right now is fascinating and that is the focus on missing and murdered Indigenous women. So it’s a movement that really I think started in Canada and it’s taken a little bit of time to ramp up here in the States. And that is that women, Native women, who are the most victimized population in terms of sexual assault and domestic violence, also have higher murder rates. We suffer from higher murder rates as well as missing cases—you know, missing persons cases. And so right now we’re starting to try to address, I guess the hashtag is #MMIW, missing and murdered Indigenous women. And some people are adding the necessary two-spirits, so, missing and murdered women and two-spirit people, to try to figure out, where are these people falling through the cracks? People go missing and they are reported by their family members, and there’s kind of a shrug, you know? “Well she’s transient, so we’re not going to look for her.” And that story is just beginning to emerge. But what’s fascinating to me is that it’s state legislators who are really quickly moving on this issue. It’s fascinating because some of them have not moved quickly on other issues involving Indigenous people, but they’re fascinated by this missing and murdered trend. And so that’s sort of what we’re working on now. And there’s a couple bills floating around Congress, too, that would try to address this crisis. But it’s sort of just a logical offshoot of the violent crime we already know is happening.
KL: Yeah. I’m really glad you brought that up. Because we’ve, we’ve talked a really little bit about that whole movement, and I’m hoping that the more we talk about it, that it brings attention to it. What do you wish non-Indigenous people were paying more attention to?
SD: To me it’s, let’s center the stories of Native women. Right now we’re off on the peripheral, we’re off on sort of the tangent. You have to be really interested in Native people to be conversant in our issues. But I really want to expand that circle. I feel like if we can center the voices of Native women, and frankly women of color generally, center them rather than marginalize us, we can start to craft solutions that are going to help everyone. I mean, I think if we can solve rape in Indian Country, we can solve rape anywhere. Right? And so that’s kind of what I hope people will say. Let’s not just bring in Sarah Deer to speak about tribal issues. Let’s bring her in because we all want to start doing tribal issues, and we need the insight to do so. So there’s, you know, organizations like the national Indigenous Women’s Resource Center that people can donate to. We always need money, right? But there are a lot of ways that just being in conversation with Native people will be helpful as we try to spread the word about what’s needed.
SWB: I love that, and I definitely want to get more aware myself on the Native groups that are sort of operating here in Philadelphia where we live. I think that’s something that it’s really easy to just not know about and taking on more of that responsibility is a pretty good call to action.
SWB: So we’re just about out of time and before we go, I want to ask for a piece of advice. So if there are listeners who find themselves, say working inside of a system that doesn’t always serve them, or maybe it wasn’t designed for them—which is probably quite a lot of us to be honest—do you have any advice on sort of how you can keep your head on straight when you’re operating within an unjust system and not lose hope or just sort of become part of the machinations of the system?
SD: Well, I mean, the advice my Indian law professor gave me when I was leaving for DC—and I was embarrassed to… my Indian law professor is very opposed to engaging with federal systems. And so when I finally like said, okay, kind of sheepishly, “I’m going to work for the man in Washington, DC,” he said, “well, the only way I’m going to let you get away with that is because I know you’ll be a mole.” [Laughter] And so, you know, you don’t want to rock the boat so much that you get fired, right? You can’t help anyone if you aren’t working, in that—if you lose your job, that gives you, it gives you opportunities to help. But you have to try to be subversive where you can. And so there were just, there’s just ways that you can continue to push a radical agenda and maybe sugarcoat it a little bit— make it seem more obvious, talk about it as though it’s a no-brainer—and hope that your casual discussion of radical concepts takes hold. I guess it’d be my best advice.
SWB: I love it. I like any advice that says “be subversive.”
KL: Exactly. Got to work it from the inside. Yes. Sarah, thank you so much for joining us and congrats again on the National Women’s Hall of Fame.
SD: Thank you.
KL: Where can listeners best hear more about your work? You can reach me at the University of Kansas. I’m easy to Google: Sarah with an H and Deer like the animal. And I try to keep my KU website up to date with my writings and some of my speaking engagements. And eventually there will be a website at sarahdeer.com, but it’s not quite ready for public consumption just yet.
SWB: Sarah, we’ve all been there.
KL: We know that feeling.
SWB: Thank you so much for being on today. Take care.
SD: All right. Thank you.
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KL: All right, Sara, I have a really on-brand fuck yeah for you.
SWB: It’s not about clogs again, is it?
KL: No. [laughter]
SWB: Okay. What do you got?
KL: Okay. I came across, in my Instagram feed, this gorgeous feelings chart that a woman named Chetna created and it’s just beautiful. And I just want to say fuck yeah to accessing more language to express how you feel. It’s beautiful. And what she says about it is that it incorporates “feels like grateful, dreadful, empathetic, defensive, compassionate, inadequate, and many more because they all may exist paradoxically within us.”
SWB: Ooh, I love this so much and you should definitely check it out. We’ll make sure to link it in the show notes, but it has just like dozens and dozens of feelings on it. And I like that it kind of takes something really simple like happy and breaks it down into other things like, are you playful? Are you delighted, are you excited? Et cetera, et cetera. Because it kind of helps you get like a closer sense of what’s really going on. And that reminds me of when we talked about coming up with better words to describe situations than “crazy,” which is really problematic from a mental health perspective.
SWB: And so you know we have terms like wild or absurd or ridiculous and that those words are actually more specific. They actually tell you more about the situation than calling something crazy. And so I think that this is a similar thing here where it’s like we often know when we’re feeling like sad or angry, but looking at this sort of reminds me of what the whole spectrum includes and it can help me name something more specific, which I think is really powerful because it can help you sort of unpack where the feeling is coming from, or sort of like what you want to do with that feeling, and that helps you process an emotion.
KL: Yeah, and I think like for me sometimes too, I think it’s this one very broad emotion, like angry for example. And really what I feel is dreadful or resentful about something very specific and I can kind of unpack it a little bit more.
SWB: Mmm. Mmmhmm. Well as usual, fuck yeah to feelings.
KL: Yes, indeed. [laughter].
SWB: That’s it for us this week. Strong Feelings is recorded in Philadelphia and produced by Steph Colburn from editaudio. Our theme music is Deprogrammed by Blowdryer. You can check them out at blowdryer.bandcamp.com. Thanks to Sarah Deer for being our guest today, and thank you for listening in. If you like our show, please, please, please leave us a rating wherever it is that you listen to podcasts. And you can get Strong Feelings in your inbox. Sign up for our newsletter. It’s at strongfeelings.co. Bye! [theme music plays for 15 seconds and fades out]
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