8

Twenty-First Century, 2000–Present

Idle No More, 2012

Alan Lechusza Aquallo

Chronology

October 18, 2012		The Canadian Federal Government sidelines Bill C-45, its omnibus budget implementation bill. The bill contains measures that would alter key provisions of the Indian Act, removing protections for forests and waterways, notably the Navigable Waters Protection Act of 1882. Many environmentalists and First Nation groups object.
November 10, 2012		Jessica Gordon, Sylvia McAdams, Sheelah McLean, and Nina Wilson organize a conference at 20 Station West in Saskatoon, calling it “Idle No More.” The women set up a Facebook page and website delineating their opposition to the provisions of Bill C-45 and the administration of Prime Minister Stephen Harper and Governor-General David Johnston.
November 17, 2012		Parallel events are held across Canada in Regina, Prince Albert, North Battleford, Saskatchewan, and Winnipeg.
December 10, 2012		A National Day of Action initiates a series of rallies, protests, and teach-ins in the various cities. Attawapiskat Chief Theresa Spence declares at a National Day of Action event in Ottawa that she will start a hunger strike December 11 to garner a meeting with Stephen Harper and David Johnston.
December 11, 2012		Chief Theresa Spence begins a hunger strike that lasts 43 days.
December 14, 2012		Bill C-45 passes, becoming law.
December 17, 2012		Protesters in Regina descend upon a shopping mall for a flash-mob style protest. A group of First Nation dancers perform a round dance at Cornwall Centre that Monday evening. Further round dances take place in London, England, Prague, Czech Republic, New York, New York, and Mall of America in Minnesota.
December 21, 2012		The Idle No More movement presents a national day of protest. More than 1,000 protesters march to Parliament Hill after meeting with Theresa Spence, who is on a hunger strike. National Assembly of First Nations Chief Shawn Atleo addresses the crowd, calling for all Canadians to support the movement. Demonstrations of Spence’s cause take place in the United States.
December 30, 2012		Protesters block a major train line that runs between Toronto and Montreal, affecting thousands of passengers.
January 13, 2016		Professor and Assembly of First Nations co-leader Pamela Palmater holds interviews with the American media.
January 4, 2013		Prime Minister Stephen Harper agrees to meet with a commission of the Assembly of First Nations on January 11. Spence agrees to attend but will continue her hunger strike.
January 5, 2013		A court order shuts down a protesters blockade that was obstructing Canadian National Railway traffic between Moncton and Mirimachi.
January 6, 2013		Protesters block a Via Rail Canada Toronto-Montreal corridor, causing travel delays of up to two hours for more than 1,000 passengers.
January 7, 2013		Senator Patrick Brazeau, a former National Chief of the Congress for Aboriginal Peoples publicaly disapproves of the Idle No More movement’s methods. He offers to meet with Theresa Spence, but Spence refuses.
January 9, 2013		Spence announces that she will not attend the January 11 meeting with Stephen Harper and the First Nations delegation after Governor-General David Johnston declines to attend.
January 10, 2013		Controversy over who will attend the meeting, and where it will be held, places the actual meeting in jeopardy. The confusion further causes a strain on the relationship between the federal government and the First Nations.
January 11, 2013		The meeting between Stephen Harper and the First Nations commences. The meeting itself, however, is trumped by ongoing protests outside of the prime minister’s office building. Consequently, the attempt to use this meeting as a facilitator for multi-level change is a failure.
January 13, 2013		Three prominent Canadians—Maude Marlow, Naomi Klein, and Sarah Slean return their Diamond Jubilee Medals in solidarity with Theresa Spence.
January 16, 2013		A group of Cree children commence a 1,600 kilometer walk from Whapmagoostui, Quebec to Parliament Hill.
January 17, 2013		Former Canadian Prime Minister Paul Martin, who was influential in the Kelowna Accords of 2005, a series of agreements between the governor of Canada and the five aboriginal societies in Canada, states that the federal government has no understanding of aboriginal issues.
January 24, 2013		Theresa Spence ends her hunger strike after a meeting with the New Democratic Party leader Tom Mulcair and Liberal leader Bob Rae, who signed her declaration of commitments.
February 27, 2013		Idle No More supporters confront conservative pundit Tom Flanagan about changes to the Indian Act.
June 21, 2013		Movement supporters mark National Aboriginal Day with events including a march on Parliament Hill.
October 7, 2013		The Idle No More movement organizes a nationwide Day of Action.

Introduction

It’s an assimilatory agenda. That’s the whole basis for assimilation and colonial policies, and none of that has changed over time. They [Canadian government] have a whole suite of legislation ever since they’ve been in [power] that has been very nearly unanimously opposed—certainly by First Nations groups anyway … [a]nd they all have a very, very similar theme, focusing on individual rights, disbanding communal rights, and focusing what will benefit Canadians, as opposed to what will benefit First Nations.” —Pam Palmeter, First Nations Activist (Poynter 2013)

History and Outline of the Idle No More Movement

The Idle No More movement has often been called “Canada’s indigenous ‘Occupy’ movement”—equating this indigenous activist movement with the Occupy Wall Street (OWS) movement in the United States (2012)—by many news media sources since it began in the latter part of 2011. However, this indigenous movement is different from the OWS movement in that it involves peoples with shared histories, experiences, goals, and aspirations. As defined by Pam Palmeter, “Indigenous [p]eoples are all related, we all care about each other’s futures and we share the same responsibility to protect our rights, cultures and identities for our seventh generation. This movement [Idle No More] has a special spiritual significance in that this was prophesied—that the seventh generation would rise and restore the strength of our Nations, bring balance and see that justice was restored to our [p]eoples” (Jan. 2013).

The Idle No More movement and its supporters march near the Ambassador Bridge in Windsor, Canada, on the National Day of Action. Idle No More was founded by First Nations women in Canada in 2012 and has inspired numerous protests throughout North America. (age fotostock/Alamy Stock Photo)

The founders of the movement, however, decided upon this slogan as a motivational tool in order to advocate for First Nations rights in light of 2011 legislation passed, specifically Bill C-45, by the Administration of Prime Minister Stephen Harper and Governor-General David Johnston, which sought to greatly limit indigenous, aboriginal, and First Nations sovereignty within Canada. The mission statement for this movement reads, “Idle No More call on all people to join in a revolution which honors and fulfills indigenous sovereignty which protects the land and water” (CBC, 2013). The first public reference of the Idle No More campaign came from a tweet on November 4, 2011, by Jessica Gordon which stated, “@shawnatleo wuts being done w #billc45 evry1 wasting time talking about Gwen Stefani wth!? #indianact #wheresthedemocracy #IdleNoMore” (CBC, 2013).

The first organized public responses toward the Harper administration and the second omnibus Bill C-45, took place in November 2012 with a “teach-in” by the four founding women in regards to the bill, a “day of action” on December 10, 2012, and a flash-mob round dance on December 17, 2012, which took place at the Cornwall Centre in Regina, Canada. A video of this event was published on YouTube and went viral overnight, solidifying the Idle No More movement (CBC, 2014). Following the success of the first “day of action,” a second one was established on January 28, 2013. Further actions in response to the Harper administration and the second omnibus Bill C-45 included a protest by First Nations/indigenous chiefs during the Assembly of First Nations (AFN), a six-week hunger strike by the Chief of the Attawapiskat Chief Theresa Spence, and further flash-mob round dances, which expanded well beyond the Canadian borders, including London, England, Prague, Czech Republic, New York, New York, and the Mall of America in Minnesota.

First Nations Peoples nationally are organized within the Assembly of First Nations (AFN), made up of elected band chiefs from across Canada. There are also traditional governing bodies with hereditary chiefs in the First Nations communities, which are often not acknowledged by the Canadian government, who remain central to indigenous struggles and advocate for the rights of First Nations self-government and sovereignty. It is important to recall that First Nations consider themselves to be sovereign peoples who have historically entered into agreements, or treaties, with Canada and the British Crown. Through such treaty relationships, First Nations land is recognized and cannot be taken without indigenous consent, thereby establishing the current course of relationship between the Canadian government and its responsibilities to the First Nations. This relationship is outlined within the Indian Act, where the Canadian federal government has a controlling majority of as much as 75 percent of the fiduciary ties between the First Nations and the Crown (2013), while individual provinces—which are largely impoverished with limited self-sustaining resources—are left to bear the responsibility of providing for such vital resources as health and education. This discrepancy yields a complicated patchwork of governance and responsibilities that is viewed by many First Nations as a means to limit their approach to full and complete sovereignty.

Idle No More (http://idlenomore.ca)—which maintains the Twitter hashtag, #idlenomore—is an informal First Nations-led movement that came from online conversations among four women—Jessica Gordon, Sheelah McLean, Sylvia McAdam, and Nina Wilson—in Saskatchewan, Canada, who were concerned about the implications of the Bill C-45, introduced in Ottawa, Canada, on October 18, 2012. Bill C-45—also known as the second omnibus budget bill—is a sweeping piece of budget legislation that critics state would set into peril the protection of thousands of Canadian streams and lakes—including those on First Nations territories and reserves—and amends the Canadian Indian Act without consulting First Nations, therefore working toward the erosion of indigenous sovereignty. Bill C-45 was passed into law on December 14, 2012, and is now commonly known as the Jobs and Growth Act, 2012. This act changes the legislation contained within 64 acts or regulations. The Idle No More movement has focused upon three provisions within this act as foundational to the socio-political campaign for First Nations equity and social justice: The Indian Act, Navigation Protection Act (formerly known as Navigable Waters Protection Act), and Environmental Assessment Act.

Each change within Bill C-45 would present the following: The Indian Act—First Nations communities, with the passing of Bill C-45, are able to leave designated reserve lands if a majority attending a meeting called for such a purpose to vote to do so, regardless of the number of attendees. Previously, approval for such action required the support of a majority of eligible voters from the tribe in question. The Canadian Aboriginal Affairs Minster can call such a meeting to consider surrendering band/tribal territory. The Minster may, likewise, choose to ignore a resolution from the band/tribal council presented in opposition to this decision at a meeting. The Idle No More movement claims that such changes will now allow for easier opening of treaty lands and territory to those outside of the band/tribe.

Changes within the Navigation Protection Act allow major pipeline and powerline project advocates to operate without direct legislation oversight, therefore providing open access to navigable waters without defining any potential damage to the waterways, even those that cross reserves. The Idle No More movement claims that such an amendment will remove the protection for 99.9 percent of lakes and rivers within Canada.

The Environmental Assessment Act was previously overhauled within the first omnibus budget bill, whereas the second omnibus bill, Bill C-45, reduces further the number of projects that would require assessment under older provisions. The Idle No More movement objects to such fast-track approval process without due and just review.

Notable Figures Involved in Idle No More

Chief Theresa Spence of the Attawapiskat First Nation in northern Ontario became a strong visible image of the Idle No More movement with her six-week liquid diet hunger strike starting on December 11, 2012, as a measure to organize a meeting between Prime Minister Stephen Harper and Governor General David Johnston to discuss legislation and treaties authorized by Her Majesty the Queen as applied to First Nations Peoples. Prime Minister Harper first announced the meeting sought by Chief Spence to take place on January 4, 2013, which would then be followed further at the Crown-First Nations Gathering on January 24, 2012. The actual meeting between the AFN and the Harper administration took place on January 11, 2013.

Elder of the Cross Lake First Nation in Manitoba, Raymond Robinson, began a similar hunger strike on December 12, 2012, demanding that Ottawa repeal parts of its budget-implemented bill that removed environmental regulations, changed fisheries rules, and, amended the Indian Act, all without consulting First Nations Peoples. Ray Robinson’s hunger strike concluded along with Chief Theresa Spence.

The elected Grand Chief of the Assembly of Manitoba Chiefs (2011), Chief Derek Nepinak, is a well-respected leader who became that face of the chiefs who were opposed to the January 11, 2012, meeting between the AFN and Prime Minister Harper. As of the time of writing, Chief Nepinak is overseeing discussions between Manitoba and some Ontario, Saskatchewan, and Alberta tribes as to whether to withdraw from or amend their relationship with the AFN.

The National Chief of the AFN, Chief Shawn Atleo, became the mediator between the chiefs across Canada and the Harper administration.

Sylvia McAdam, Sheelah McLean, Jess Gordon, and Nina Wilson are the four women from Saskatchewan, Canada, who organized the first “teach-ins” regarding the second omnibus Bill C-45, which then generated the Idle No More movement.

Further Reading

Brean, Joseph. “Separate and Equal Nations: The Academic Theory behind Idle No More.” January 12, 2013. National Post. Accessed April 13, 2015. http://news.nationalpost.com/news/canada/separate-and-equal-nations-the-academic-theory-behind-idle-no-more

Canadian Press, The. “Idle No More: First Nations activist movement grows across Canada.” Maclean’s. December 16, 2012. Accessed April 6, 2015. http://www.macleans.ca/general/idle-no-more-first-nations-activist-movement-grows-across-canada/

Hopper, Tristin. “In the beginning: A look at the causes behind Idle No More.” National Post. January 5, 2013. Accessed April 10, 2015. http://news.nationalpost.com/news/canada/in-the-beginning-a-look-at-the-causes-behind-idle-no-more

“Idle No More Day of Action held as parliament resumes.” huffingtonpost.ca. January 28, 2013. Accessed March 6, 2015. http://www.huffingtonpost.ca/2013/01/28/idle-no-more-day-of-action_n_2566874.html

“Idle No More Protest Closes Cornwall Bridge to U.S.” Huffingtonpost.ca. Accessed March 6, 2015. http://www.huffingtonpost.ca/2013/01/05/idle-no-more-cornwall_n_2415777.html

“Idle No More Sees Multiple Flash Mobs and Round Dances Today.” Indian Country Today Media Network. December 29, 2012. Accessed May 9, 2015. http://indiancountrytodaymedianetwork.com/2012/12/29/idle-no-more-sees-multiple-flash-mobs-and-round-dances-today-146630

Jarvis, Brooke. “Idle No More: Native-Led Protest Movement Takes on Canadian Government.” Rolling Stone, February 4, 2013. Accessed February 8, 2016. http://www.rollingstone.com/politics/news/idle-no-more-native-led-protest-movement-takes-on-canadian-government-20130204

Laboucan, Keith (reporter) (December 18, 2012). “Driftpile Cree Nation launched Idle No More Alberta highway blockade” (News story). Canada: Aboriginal Peoples Television Network. http://aptn.ca/news/2012/12/18/driftpile-cree-nation-launched-idle-no-more-alberta-highway-blockade/

Poynter, Bilbo. “Idle No More: Canada’s Indigenous ‘Occupy’ Movement.” The Christian Science Monitor, January 10, 2013. Accessed February 8, 2016. http://www.csmonitor.com/World/Americas/2013/0110/Idle-No-More-Canada-s-indigenous-Occupy-movement

Schultz, Kylie. “Idle No More: Canada’s Growing Indigenous Rights Movement, Fast Going Global.” January 5, 2012. theinternational.org. Retrieved April 6, 2015.

Violence Against Women Act Title IX: Safety for Indian Women, 2013

Anne Luna-Gordinier

Chronology

1790		Federal jurisdiction extends to non-Indians committing crimes against Indians in Indian Territory.
1817		The General Crimes Act expands federal jurisdiction over Indians and non-Indians committing crimes in Indian country, with the exception of crimes by Indians against Indians.
1885		The Major Crimes Act creates federal jurisdiction over seven (eventually 13) crimes committed by Indians in Indian country regardless of whether the victim is Indian or non-Indian. This is the first systematic intrusion by the federal government into the affairs of tribes.
1968		The Indian Civil Rights Act imposes most of the Bill of Rights on tribes for the exercise of jurisdiction, and limits sentences that may be imposed by tribal courts to a maximum of a $5,000 fine and one-year imprisonment for any crime.
1976		The White Buffalo Calf Woman Society is founded at the Rosebud Sioux Reservation. It is the first non-profit organization dedicated to advocacy on behalf of American Indian women victims of violence.
1978		The U.S. Commission on Civil Rights holds a forum entitled Consultation on Battered Women in Washington, D.C.
		The U.S. Supreme Court holds in Oliphant v. Suquamish Indian Tribe that tribes lack criminal jurisdiction over non-Indians.
1980		The White Buffalo Calf Woman Society establishes the first domestic violence shelter on an Indian reservation.
1981		The first annual Domestic Violence Awareness Week is celebrated.
1984		The U.S. Department of Justice (DOJ) Task Force on Family Violence is established and submits a report examining the scope and impact of domestic violence in America. The report provides recommendations to improve law enforcement, criminal justice, and community response to offenses previously considered “family matters.” Congress passes the Family Violence Prevention Services Act—the first time federal funds are designated for programs serving battered women and their children.
1985		The U.S. Surgeon General identifies domestic violence as a public health issue that cannot be addressed by the police alone.
1988		Congress amends the Victims of Crime Act, requiring state victim-compensation programs to make awards to victims of domestic violence.
1990		U.S. Senator Biden introduces the first Violence Against Women Act (VAWA). The Supreme Court holds that tribes do not have criminal jurisdiction over non-member Indians, in Duro v. Reina.
1991		Congress legislatively overturns Duro, affirming the inherent power of tribes to exercise power over all Indians.
1993		Senator Biden and the Senate Judiciary Committee conclude a three-year investigation into the causes and effects of violence against women.
1994		Senator Biden sponsors VAWA as part of the Violent Crime Control and Law Enforcement Act of 1994. On September 13, 1994, VAWA creates full faith and credit provisions requiring states and territories to enforce protection orders issued by other states, tribes, and territories.
1995		The Violence Against Women Grants Office (VAWGO) is created at the U.S. Department of Justice to implement grants programs for victims’ services and provides police- and court-sensitivity training. VAWGO makes the first VAWA grants to tribes under the STOP Violence Against Indian Women (STOP VAIW) Program. President Clinton appoints Bonnie Campbell to head the U.S. Department of Justice’s new Violence Against Women Policy Office (VAWO).
2002		VAWO changes its name to the Office on Violence Against Women (OVW). Legislation makes OVW a permanent part of the Department of Justice with a presidentially appointed, Senate-confirmed director.
2006		President George W. Bush signs VAWA 2005 into law on January 5, 2006. It authorizes numerous new programs, with an increased emphasis on violence against Indian women, sexual assault, and youth victims. The first OVW Tribal Consultation convenes with DOJ officials and tribal leaders in Prior Lake, MN.
2007		OVW makes its first awards under the Grants to Indian Tribal Governments program, a more comprehensive tribal program than was authorized by VAWA 2005, which replaces the STOP VAIW program.
2008		The Section 904 Violence Against Women in Indian Country Task Force holds its first meeting in Washington, D.C.
2010		President Barak Obama signs the Tribal Law and Order Act on July 29, 2010, to empower tribal governments to provide public safety and reduce violent crime in Indian country.
2013		President Obama reauthorizes VAWA on March 17, 2013. Title IX, Safety for Indian Women includes Section 904 extending concurrent tribal criminal jurisdiction over violations of protection orders and domestic violence crimes involving non-Indians.
2014		Three tribes begin pilot projects to expand their jurisdiction and implement Section 904 provisions on February 6, 2014: Pasqua Yaqui, Tulalip, and the Confederated tribes of the Umatilla Indian Reservation.
2015		As of March 7, 2015, all federally recognized tribes may exercise special domestic violence criminal jurisdiction without permission from the DOJ.

Enhancing Tribal Sovereignty through the Violence Against Women Act

Domestic violence is a complex problem that pervades all of American society. Across all racial groups, violence against women is primarily domestic violence: 64 percent of women who reported being raped, physically assaulted, and/or stalked since age 18 were victimized by a current or former husband, cohabiting partner, boyfriend, or date (Tjaden and Thoennes 2000, iv). At least 70 percent of the perpetrators of violent crimes against American Indians are non-Indians (Greenfeld and Smith 1999, vi). American Indian/Alaskan Native women experience violent victimization at a greater rate than any other racial group (Tjaden and Thoennes 2000, 22). This is particularly troubling because prior to colonization, domestic violence was uncommon in traditional Native cultures (Murray 1998, 5). Some explanation for this disconnection lies in the understanding that the imposition of hierarchical legal and social structures tied the hands of tribes to do what is right for their own people. This distressing problem can be resolved by empowering tribes to once again create and enforce culturally appropriate modes of resolution. The Violence Against Women Act (VAWA) may be a vehicle for this end. Once tribes set about creatively utilizing VAWA, they may develop a multitude of tactics not only to address domestic violence on the reservation, but also to further tribal sovereignty. The methods that are most likely to be successful are those rooted in tribal values and traditions. Tribes should incorporate these considerations into codes, protocols, training, and prevention programs, to ensure that they play an integral part in law enforcement. This will promote law and order on the reservation as well as help to further tribal sovereignty.

Criminal Justice and Violence Against Women

In general, domestic violence presents a complex problem for victims and the criminal justice system because the behavior may consist of a series of ongoing noncriminal and criminal acts. In the case of stalking, when these noncriminal acts are taken into account together, they put the victim in a permanent state of physical and mental onslaught (Stevenson 1997, 7). Stalking and domestic violence often further victimize a person by restricting their access to usual activities such as maintaining a job or sending their children to school. This cycle of control extends to poor utilization of law enforcement as well.

According to National Violence Against Women Survey (NVAW) survey, only 55 percent of women victims reported stalking to the police (Atwell 2002, 83). In addition to the victimization resulting from domestic violence and stalking, victims are further stressed by the rigors of the criminal justice system. Stalking, like “the gendered crimes of rape and domestic violence … depends on evidence of victim noncompliance with the defendant and evidence that the victim did not precipitate or encourage the defendant’s behavior” (Dunn 2002, 3). The actions and character of the victim are often a focus of scrutiny leading to further frustration with law enforcement (Dunn 2002, 2). This creates a barrier to resolution even while the primary victimization continues unabated.

Sidebar 1: A Statistical Dilemma: Violence against American Indian and Alaskan Native Women

American Indians and Alaska Natives are 2.5 times more likely to experience violent crimes, and at least two times more likely to experience rape or sexual assault crimes, compared to all other races.

Sixty-one percent of American Indian and Alaska Native women have been assaulted in their lifetimes, whereas 52 percent of African American women, 51 percent of white women, and 50 percent of Asian American women have been assaulted.

Thirty-four percent of American Indian and Alaska Native women will be raped in their lifetimes, compared to 19 percent of African American women, 18 percent of white women, and seven percent of Asian and Pacific Islander women.

Thirty-nine percent of American Indian and Alaska Native women will be subjected to violence by an intimate partner in their lifetimes, compared to 29 percent of African American women, 27 percent of white women, 21 percent of Hispanic women, and 10 percent of Asian women. (Futures Without Violence 2015)

Few tribes have the legal codes in place to address stalking and domestic violence adequately. Perhaps this is because their cultures were forced to change rapidly to accommodate new social ills that had been kept under control through traditional means. Rather than focusing on reactionary measures to domestic violence, tribal societies were more likely to focus on prevention from the beginning. This was enforced and perpetuated by community and familial accountability. This is not to say that remedies for persistent and irredeemable behavior did not exist, however. Varying approaches to domestic regulation reflected the traditions, religious beliefs, and governmental structures of each society (Murray 1998, 8). Regardless of the approach, it is certain that tribal nations and families once successfully regulated issues of violence in their own culturally specific ways (Murray 1998, 5).

History of Federal Indian Policy

Integral to addressing the issues around violence against Indian women is an understanding of the complex legal issues surrounding tribal jurisdiction. Tribes once exerted full sovereignty over their land, government, and people, however, their powers have been whittled away over time. The history of federal Indian policy has hampered tribes from exercising control over their reservations in culturally compatible ways.

The Self-Determination era has led to renewed control over reservation resources and governance. However, the United States Supreme Court’s Indian Country criminal and civil jurisdictional model radically cut back on the rights of tribes to regulate activities by non-Indians on the reservation. Treaties are no longer a respected basis for tribal sovereignty in the United States. Most areas of tribal life, including law enforcement, economic development, and governance, are affected by these decisions. In order for tribes to resolve these problems, they have had to seek new avenues for resolution.

Tribal control over reservation law and order is imperative for tribal sovereignty, and it is one of the few areas where tribal jurisdiction has been upheld. In order to succeed, tribes must balance the goals of tribal sovereignty with state and federal needs for accountability in an increasingly hostile legal environment. Only with time, education, regained political power, and respect for traditional cultures can tribes re-envision themselves successfully.

Shifting Federal Policy

In his attempt to clarify federal Indian law, Professor Felix Cohen addressed the position of tribal power within the American system of governance. Cohen concluded that the course of judicial decision followed three basic principles. First, prior to European contact, a tribe possessed “all the powers of any sovereign state” (Cohen 1982, 51). Second, the European process of “conquest” makes the tribe subject to the legislative power of the United States and, essentially, destroys the external powers of sovereignty of the tribe (Cohen 1982, 52). Finally, tribes retained internal sovereignty “subject to qualification by treaties and by express legislation of Congress” (Ibid). In this way, tribal powers generally were not “delegated powers granted by express acts of Congress” but instead are inherent powers of limited sovereignty that has not been extinguished (Ibid). In addition, provisions of Indian treaties that might undercut tribal authority were also read narrowly, based on some key assumptions: the treaty transaction was a cession of rights by the tribe rather than a granting of rights by the United States. These cessions, along with all other treaty provisions, were to be interpreted as the Indians would have understood them.

In many areas, tribes have been shackled by federal government bureaucracies. However, new avenues for cooperation have allowed tribes to take over control of many of their resources. The Indian Self-Determination and Education Assistance Act of 1975 gave tribes the authority to contract for and receive grants from the direct operation of Department of Interior and Health and Human Services programs serving their tribal members. Under the Act, tribal programs are funded by the federal government, but the programs are planned and administered by the tribes themselves. Some tribes have implemented reforms that bypass the Bureau of Indian Affairs (BIA), streamline tribal committees, and increase accountability.

One extremely important aspect of federal Indian law is that while policy has shifted, many of the statutes passed in each policy era were never overturned. Courts regularly have to interpret statutes based on congressional intent, even when a later Congress has expressly ended that policy and enacted new legislation. This puts courts in the powerful position of choosing how to direct Indian policy from a checkered past. This runs to the detriment of tribes, so tribes have sought other avenues to address their concerns.

An End to Criminal Jurisdiction Over Non-Indians

Oliphant v. Suquamish was decided against a backdrop of 150 years of federal criminal legislation that assumed an absence of tribal governmental authority to punish non-Indians who violated tribal laws (435 U.S. 191 (1978)). The case turned on whether the federal jurisdiction was exclusive or whether the tribal court had concurrent jurisdiction. The issue was important because if a tribe did not have authority, it would not be able to exercise criminal sanctions against non-Indian offenders. Tribal members seeking justice would have to petition the U.S. attorney, often located hundreds of miles away, to prosecute even minor offenses in federal court.

The Supreme Court held that “Indians do not have criminal jurisdiction over non-Indians absent affirmative delegation of such power by Congress.” No treaty cession or congressional abrogation supported this conclusion. Instead, the Court fell back upon the theory of diminished tribal authority prohibiting tribes from exercising powers “inconsistent with their status” as domestic dependent nations.

Even though the Court found no statute or treaty provision that removed the Suquamish tribe’s criminal jurisdiction over non-Indians, the Court held that by “implication” the Suquamish tribe’s judiciary had no such jurisdiction. It even went so far as to hold that as a whole, “Indian tribes do not have inherent jurisdiction to try and punish non-Indians.”

Sidebar 2: Significant Cases and Legislation Affecting Criminal Jurisdiction in Indian Country Following Oliphant v. Suquamish Indian Tribe

In U.S. v. Mazurie, the U.S. Supreme Court found that tribes have independent authority over matters that affect their internal and social relations. Tribes may pass laws with criminal implications that are enforceable through criminal prosecution in federal court. Mazurie did not expand tribal criminal jurisdiction via enforcement through tribal courts.

In Duro v. Reina, the Court stated that tribes retained the level of sovereignty needed to control their internal relations, preserve their customs, and social order. The Court attempted to unify the precedents by articulating a theory of consent to government. Voluntary tribal membership and the right of participation in tribal government justify tribal criminal jurisdiction over members. This ruling removed tribal jurisdiction over non-member Indians on the reservation.

The Duro decision created a jurisdictional gap in Indian country because states lacked criminal jurisdiction in Indian Country, and the federal government usually only prosecuted crimes under the Major Crimes Act due to funding constraints. Congress responded in 1991 by amending the Indian Civil Rights Act to (1) recognize and affirm the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians, and (2) explicitly expand the definition to include any person defined as an Indian under the Major Crimes Act to be within the criminal jurisdiction of tribal courts.

National Farmers Union Insurance Companies v. Crow Tribe of Indians asserted that the basis of federal jurisdiction to assess tribal court authority is neither constitutional nor statutory in nature, but is grounded in federal common law. Tribal court authority was limited to those crimes occurring on reservation lands.

Congress passed the Tribal Law and Order Act (TLOA) in 2010. Its purpose is to empower tribal governments to provide public safety and reduce violent crime in Indian country. As of 2016, only ten of eligible tribes were exercising TLOA’s new sentencing authority, and 15 were close to implementation. Most tribes reported challenges due to funding limitations, and it is still unclear how TLOA will affect the criminal prosecution of non-Indians in Indian Country.

Congressional Solutions to Gaps in Criminal Jurisdiction

Congress responded to concerns about gaps in jurisdiction by amending the Indian Civil Rights Act to (1) recognize and affirm the inherent power of Indian tribes to exercise criminal jurisdiction over all Indians, and (2) explicitly expand the definition to include any person defined as an Indian under the Major Crimes Act (18 U.S.C.A. §1153) to be within the criminal jurisdiction of tribal courts.

The Court decided that cases that conflict with this are exceptions to this general rule. The first exception is consensual relationships, such as marriage, contracts, licensing, or leases, which are subject to tribal jurisdiction. This exception does not include unmarried couples where one partner is non-Indian. Living within reservation boundaries does not constitute a consensual relationship. Oliphant could have robbed tribes of the right to try non-Indian stalkers and perpetrators of violence in tribal courts. The second exception is when tribes need to protect the political integrity, economic security, health, and welfare of the tribe. One could logically extend regulation of violent acts perpetrated by non-Indians against tribal members under the second exception.

The Violence Against Women Act

In 1994, U.S. Senator Joseph Biden sponsored the Violence Against Women Act (VAWA 1994) as part of the Violent Crime Control and Law Enforcement Act (42 U.S.C. 13701 (1994)). Signed into law on September 13, 1994, it requires a coordinated community response to domestic violence, sexual assault and stalking crimes, encouraging jurisdictions to engage multiple players to share experience and information to improve community-defined responses. VAWA 1994 also established grant programs through the Centers for Disease Control and Prevention, Department of Justice, and the Department of Health and Human Services. Specifically for Indian Country, VAWA 1994 included funding for a DOJ Services Training Officers Prosecutors Violence Against Indian Women (STOP VAIW) discretionary program. VAWA 1994 also created Tribes as States (TAS) status for creating and enforcing domestic violence and related codes. The program includes funds for training and technical assistance for tribal and state judges dealing with stalking and domestic violence cases (Stevenson 1997, 8). Of fundamental importance to Indian country, the statute requires every tribe and state to give full faith and credit to protective orders issued by other tribes and states (Ibid).

On October 28, 2000, President Bill Clinton signed the Violence Against Women Act of 2000 (VAWA 2000) into law under Division B of the Victims of Trafficking and Violence Protection Act of 2000. VAWA 2000 reauthorized essential programs, established new programs and strengthened federal laws. Critical to tribes, VAWA 2000 funded grants to tribal coalitions and expanded interstate stalking laws to include cyberstalking and added entering and leaving Indian Country to the interstate domestic violence and stalking crimes created by VAWA 1994.

The Violence Against Women Act of 2005 (VAWA 2005) was signed into law by President George W. Bush on January 5, 2006. VAWA 2005 authorized new programs and emphasized violence against Indian women, including culturally and linguistically specific services. The first DOJ Office on Violence Against Women (OVW) Tribal Consultation was convened at Prior Lake, MN with DOJ officials and tribal leaders. In 2007, the OVW made the first awards under the Grants for Tribal Governments program, which was more comprehensive than the original STOP VAIW program.

In 2008, the Section 904 Violence Against Women in Indian Country Task Force held its first meeting in Washington, D.C. On March 17, 2013, VAWA (VAWA 2013) was reauthorized with Title IX, Safety for Indian Women, including Section 904 extending concurrent tribal criminal jurisdiction over violations of protection orders and domestic violence crimes involving non-Indians. Three tribes were chosen for pilot projects to expand their jurisdiction and implement Section 904 provisions: Pasqua Yaqui, Tulalip, and Confederated tribes of the Umatilla Indian Reservation.

Support for Section 904 was strong, and numerous Native groups lobbied for the bill. Conservative lawmakers raised concerns that Section 904 might infringe defendants’ constitutional rights. As a result, the final version of Section 904 was written narrowly. It only covers violations of protective orders or domestic violence that occur on federally recognized tribal land. To be prosecuted, the perpetrator must live or work on the reservation, have an intimate relationship with a tribal member, or have a substantial tie to the tribe. In cases where the defendant might be imprisoned, Section 904 adds civil rights protections for tribal courts. It requires tribes to offer judges with legal training, public defenders, a guarantee of effective assistance of counsel, and juries drawn from a cross section of the community at the tribe’s expense.

The special domestic violence jurisdiction and civil rights provisions have been explored as part of the DOJ’s pilot project since February 20, 2014. These experiences have exposed some jurisdictional gaps. The major hurdle is the inability to bring charges for crimes often occurring along with domestic violence, such as child abuse, sexual assault, substance abuse, property destruction, threats, and stalking. It is problematic to prosecute domestic violence and leave other charges to federal or state authorities. As a result, tribal prosecutors may find themselves deciding whether to prosecute only some of the crimes or to let go of jurisdiction and refer cases to other agencies.

As of March 7, 2015, all federally recognized tribes may exercise jurisdiction without permission from the DOJ. VAWA 2013 aims to recognize “the inherent powers of [a participating] tribe … to exercise special domestic violence criminal jurisdiction over all persons” (VAWA 2013). However, another provision requires tribes to give defendants “all other rights whose protection is necessary under the Constitution of the United States” (VAWA 2013). This could be interpreted as requiring tribes to provide defendants with the constitutional rights they would have in federal or state courts, even though tribes are not subject to the Constitution.

Even without a constitutional challenge, many tribes may not have the funding necessary to exercise VAWA jurisdiction. Tribes are eligible for federal funds, but they must compete for the grants, which takes a lot of work. Grants must be renewed regularly, require many administrative hours, and can be used only for specific activities. VAWA 2013 called for up to $5 million in grants for tribes implementing Section 904. Congress finally authorized $2.5 million in funds for the special domestic violence criminal jurisdiction program in 2016.

As a result, it has been difficult for tribes to develop and maintain the justice system infrastructure necessary for Section 904 jurisdiction. There is also concern that adopting Section 904 will undermine culturally specific court systems. The civil rights provisions of VAWA 2013 may even encourage some tribal justice systems to adopt a mainstream model.

Exercising Tribal Sovereignty to End Domestic Violence

One of the few areas where tribal sovereignty has been upheld is with VAWA. Divisions of the federal government have saved money and work hours by establishing government-to-government relationships with tribes so they can take over the administration of their own reservations. Tribes that do not establish these kinds of relationships with federal agencies will find it hard to maintain regulatory or legislative authority in the face of state challenges. Tribes must assert their jurisdiction wherever they can in order to prevent further destruction of their sovereignty.

The solutions to these problems are not simple. Tribes are faced with the awesome challenge of developing approaches to deal with constant change in the political and judicial climate. They should take over as many of the aspects of reservation management as they can. The easiest way is to start with areas where they have been granted TAS status. This enables tribes to demonstrate that they are competent in numerous areas of policy and regulatory development. Tribes should also focus on coalition building in order to rally support for new legislation supporting tribal sovereignty. One of the best ways for tribes to retain control over their reservations is to work within the framework of already-approved forms of jurisdiction while not limiting themselves to those areas.

Tribes would do well to create codes that integrate local, cultural, and multidisciplinary responses to violence before they attempt to adopt and implement them. They must develop formal criminal justice protocol to appropriately and effectively respond to violent crimes. They should form dedicated teams of police officers, prosecutors, court personnel, and parole and probation officers from existing domestic violence units. These teams should be trained to consistently investigate, monitor, arrest, and aggressively prosecute offenders. In addition, these teams need training in the use of federal interstate stalking and domestic violence laws as defined by VAWA. Tribes must also consider aggressively seeking multiple funding sources, since they generally lack sufficient financial resources for enforcement. Although Section 904 is a step in the right direction, multiple barriers still prevent Native victims of violence in Indian Country from seeking the safety and justice they deserve.

Once tribes set about creatively utilizing VAWA, they may develop a multitude of tactics not only to address domestic violence on the reservation, but also to further tribal sovereignty. The methods that are most likely to be successful are those rooted in tribal values and traditions. By designing, developing, and implementing their own culturally appropriate legal codes to address violent crimes against women, tribal governments not only will be able to protect their citizens, empower victims of violence and hold perpetrators accountable, they will also further their sovereignty.

Biographies of Notable Figures

Matilda (Tillie) Black Bear (Sicangu Lakota Nation/Rosebud Sioux tribe) is a nationally renowned victim’s advocate often called the Grandmother of the Battered Women’s Movement. Tillie was born in 1946 in St. Francis, South Dakota, to Dorothy Mousseaux and her biological father, James Black Bear. Her stepfather was Francis Crane. She was the third child of eleven with eight of her siblings born at home. Tillie is the mother three daughters, a grandmother of thirteen, and a survivor of domestic violence.

Tillie grew up speaking Lakota and learned traditional ways from her family. Her family was one of the first to bring the Sundance back to Rosebud reservation in 1960. They travelled to Washington, D.C., to get permission to practice their traditional spirituality openly. Tillie came from that rich tradition of resistance, which she credits with helping her achieve so much.

Tillie attended boarding school and graduated from St. Francis High School in 1965. She spent her first two years after high school attending the College of St. Mary’s in Omaha, Nebraska. She went on to earn her Bachelor of Science in Sociology in 1971 from Northern State University in Aberdeen, South Dakota. She received a Master of the Arts in counseling from the University of South Dakota in 1974. She also completed course work for her PhD but did not complete her dissertation.

Over the years, Tillie worked as a therapist, certified school counselor, administrator, and comptroller. Tillie was director of student services from 1974 to 1977, a member of the Board of Regents from 1975–1976, and an instructor in the human services department at Sinte Gleska University in Mission, South Dakota. She also served on the St. Francis Indian School Board of Directors in St. Francis, South Dakota, and as a director of the Rosebud Sioux tribe’s education department.

Tillie was a staunch advocate, inspirational voice, and respected leader of the battered women’s movement since its beginnings. In 1976, Tillie organized her home community on the Rosebud reservation, serving as a founding mother to the White Buffalo Calf Woman Society (WBCWS). Formed to provide advocacy for battered American Indian women and their children, WBCWS was named for the deity who brought the Lakota the sacred pipe and who serves as a guide for proper conduct. Tillie partnered with the attorney general of the Rosebud Sioux tribe to implement a Tribal Council policy requiring mandatory arrest of perpetrators of violence against women and children. She worked to reclaim the sacredness of tribal women all over Turtle Island.

In 1978, Tillie began her national movement building by testifying at the first U.S. Commission on Civil Rights hearings on wife beating. The same year, Tillie acted as a founding mother of the National Coalition Against Domestic Violence (NCADV). She was also the first woman of color to chair NCADV. Tillie also led in building the South Dakota Coalition Against Domestic and Sexual Violence, where she sat on the board of directors.

In 1980, the WBCWS established the first Native women’s shelter in the United States. Tillie maintained a guiding presence for the organization over the years. She served as executive director from 1987 to 1991 and returned to that position in 1996 for a total of fourteen years.

Tillie served on the advisory board of National Sexual Assault Resource Center, Pennsylvania and was a member of the professional advisory board of the National Domestic Violence Hotline in Austin, Texas. She was a council member for Clan Star National Technical Resource Center for VAWA Tribal Coalition grantees through the United States Department of Justice (DOJ).

For the next three decades, Tillie’s leadership continued to indigenize federal legislation such as the Violence Against Women Act and the Family Violence Protection & Services Act. In 1995, after the passage of VAWA, Tillie met with the DOJ to ensure that VAWA included Indian tribes. In 2000, Tillie helped shape the VAWA tribal coalition program. In 2003, she led a Wiping of the Tears Ceremony at the Hart Senate Office Building to launch the struggle for the VAWA 2005 Safety for Indian Women Act. As part of the NCAI Task Force, Tillie met with the United Nations Special Rapporteur Rashida Manjoo in 2011 as a pathway to the VAWA 2013 victory, restoring criminal jurisdiction over non-Indians to Indian tribes. Also in 2013, Tillie again provided leadership to found the National Indigenous Women’s Resource Center. Tillie also taught courses on cross-cultural ministry at Catholic Theological Union through Shalom Ministries out of Chicago for thirteen years.

Tillie’s many awards and achievements include being honored twice by DOJ for her work with crime victims. She was named an Outstanding Young Woman in America in 1973 and 1977. She was a President Bush Points of Light Honoree in 1988. In 1989, her work at WBCWS was recognized with an award from DOJ’s Victims of Crime Office. At the 1999 Millennium Conference on Domestic Violence in Chicago, Tillie was one of 10 individuals recognized as founders of the domestic violence movement in the United States In 2000, she received the Eleanor Roosevelt Human Rights Award from President Clinton.

In May 2003, Tillie was a recipient of the first annual LifeTime Achievement Award from LifeTime Television. She was also chosen as one of the recipients of the 21 Leaders for the 21st Century award by Women’s ENews in 2004. In 2005, she received an award from the National Organization for Women. Tillie later received a 2009 Visionary Voice Award presented by the National Sexual Violence Resource Center. In 2014, she was also honored by the Native Women’s Society of the Great Plains for her commitment and her contributions to the safety of women.

After a full and rewarding life, Tillie Black Bear walked on July 19, 2014. Her understanding of social change, organizing, and movement building continues to inspire advocates and policy makers to forge connections between shelter doors and Capitol Hill to end violence against women.

Eileen Luna-Firebaugh (Choctaw/Cherokee) is one of the most influential women in the field of American Indian law. She was born in 1945 in the Charlestown neighborhood of Boston, Massachusetts where she received her early public school education. She is the eldest of five children born to Glen and Mary Luna. Her family moved to Southern California on a relocation package in 1954. Like many relocatees, Glen struggled with alcoholism and related domestic violence. Glen left the family to fend for themselves on welfare when Luna-Firebaugh was 15. While attending high school in Imperial Beach California, Luna-Firebaugh worked as a babysitter to help support her family.

While on a full scholarship at the University of San Diego, Luna-Firebaugh became a political activist. As her activism cost Eileen her scholarship, she transferred to San Diego State University. There she helped establish one of the first women’s studies departments in the United States, and she became active in one of the first Indian clubs. Her political involvement also included the free speech movement, the anti-war movement and extensive labor organizing. Luna-Firebaugh married Riley Gordinier in 1966. In 1969, while pregnant with her son Jeremy, her mother Mary passed, and Luna-Firebaugh and her husband took in her youngest two siblings and raised them.

After graduating from San Diego State, she immersed herself in union work and eventually attended the People’s College of Law in Los Angeles. In 1976, during her second year of law school, Luna-Firebaugh had her daughter, Anne. She worked full time for the United Farm workers and later the Social Services Union.

In 1980, after receiving her J.D., and fueled by her background in social justice, she moved to Berkeley with her family to serve as the Executive Director of the Berkeley Police Review Commission (PRC). The PRC hears individual complaints and makes policy recommendations to ensure that Berkeley police officers act in a manner conforming to community standards.

In 1981, Luna-Firebaugh divorced her first husband. Subsequently, she met her second partner, Jon Read, a landscape architect, newspaper columnist, and social justice agitator. During this time, Luna-Firebaugh started the free legal clinic at Intertribal Friendship House (IFH) in Oakland. IFH serves as urban Indian homeland for American Indians in the Bay Area. From 1983 to 1994, she served on the executive board and later as the head.

In 1990, Luna-Firebaugh became the director of the Office of Civilian Complaint in San Francisco. In 1993, she began commuting to San Diego, where she launched the Citizen’s Law Enforcement Review Board, the first countywide police review office in the country. The CLERB was the first civilian oversight agency to have jurisdiction over jails and probation officers. From 1992 to 1995, Luna-Firebaugh taught American Indian Studies classes at Palomar college, a community college serving the Native American community in northern San Diego County.

In 1995 she attended the Kennedy School of Government at Harvard University for a Master of Public Administration (MPA) program. After completing her MPA, Luna-Firebaugh became an assistant professor of Federal Indian Law and Policy in the American Indian Studies Program at the University of Arizona in Tucson. In 2000, Luna-Firebaugh and her partner, Read, separated.

In 2001, Luna-Firebaugh married her high school sweetheart, Dennis Firebaugh. Luna-Firebaugh soon became an associate professor and the Associate Chair of the American Indian Studies Program. Her publications focus on the development of international indigenous and tribal justice systems, tribal police, evaluation of human service programs on Indian lands, and juvenile community policing. She works on an international and tribal research project focused on the criminal justice barriers to higher education for American Indian juveniles and has undertaken an 18-month project for the U.S. Bureau of Justice Statistics to review all their materials referencing American Indians and criminal justice for consistency.

Luna-Firebaugh is the author of Tribal Policing: Asserting Sovereignty, Seeking Justice, published by the University of Arizona Press. She is a member of the faculty of the National Tribal Trial College, funded by the U.S. Department of Justice. In that capacity, she is a trainer of tribal judges, police, and prosecutors. Luna-Firebaugh is a member of the Advisory Board for the Southwest Center on Law and Policy, funded by the U.S. Department of Justice, and of the Western Social Sciences Association, where she served on the executive board. She is a former associate justice of the Colorado River Indian Tribal Appellate Court, former member of the Advisory Board for the National Center for Responsible Gambling, and former member of the Advisory Board for the Harvard Medical School Division on Diversions Project on Pathological Gambling.

Luna-Firebaugh is a consultant to cities throughout the United States and to international governments seeking to reorganize their police complaint systems. She has worked with the Harvard Project on American Indian Economic Development, and tribal-level project coordinators, to evaluate the CIRCLE initiative (Comprehensive Indian Resources for Community and Law Enforcement). This U.S. Office of Justice Programs initiative provided three demonstration tribes (Northern Cheyenne tribe, Oglala Sioux tribe and Pueblo of Zuni) with the opportunity and resources needed to realign law enforcement and justice programs with tribal values and priorities. CIRCLE funded youth, victim services, law enforcement, domestic violence, tribal courts, and corrections programs. Equally important, it encouraged Indian nations to develop a linked, comprehensive strategy for using these funds.

Luna-Firebaugh was the principal investigator on a major, multi-year grant on reducing violence against women funded by the National Institute of Justice, which included over 130 tribal government programs. She was also the principal investigator for a National Institute of Health study of Australian Aboriginal family violence programs, conducted throughout Eastern and Southern Australia. In 2010, she served as a consultant for the United Nations Commission on Human Rights in Africa, the Soros Open Society Institute, and the Nigerian Police Services commission.

Luna-Firebaugh was recently awarded the Toihuarera Fellowship for research of Maori Programs aimed at developing juvenile diversion programs. In that capacity, she was a visiting professor at Victoria College of Law in Wellington, New Zealand, and was named a justice of the Rangatahi (juvenile) court.

DOCUMENT EXCERPTS

Service Provision and Funding Constraints in Indian Country, Carmen O’Leary (2011)

In 2011, Carmen O’Leary, Director of the Native Women’s Society of the Great Plains, testified before the Senate Committee on Indian Affairs about the necessity of consistent program funding and accountability to secure safety for American Indian women.

I understand that numbers have been presented time and again about the need in Indian Country for increased services and accountability. And as a result of these numbers, various model programs have come and gone. But the instability and ongoing need for services remains a great problem in our communities. The funding that is available is usually discretionary and inconsistent. Too often, women in need of services find that the local DV/SA program is no longer funded or the services are no longer offered. This failure to provide services puts these women at increased risk for ongoing violence, and too often, death. To combat this, funding needs to be stabilized so the services are continuous and not just the duration of a two- or three-year grant. Funding these programs on a consistent, annual basis will directly and positively combat the problem of violence in our communities.

In addition to increasing the availability of services, we need to hold offenders accountable by increasing community accountability. How much time will it take to overcome decades of behavior that has been accepted due to offenders going unpunished and the community accepting the offender’s actions as the status quo? This normalization of violence is imbedded deeply in our society today. I had the sad experience to observe one of the worst examples of this acceptance in a federal courtroom earlier this year. Thanks to the threat of increased sentencing, one pedophile plea bargained and was being sentenced. He had pled guilty; there was no jury or assumption of innocent at this point in his procedures. The victims who had courageously come forth all were current or former students at a Bureau of Indian Affairs school. The regional line officer of the Bureau of Indian Affairs and one of the principals of a local Bureau of Indian Affairs school wrote letters of support. But not for their students—for the pedophile. The principal sat behind the pedophile at the hearing, not behind the students. I am not sure any of us can understand the impact it must have had on these victims and those who love them—that the support of prominent people in their community supported the perpetrators, and dismissed the victims. Sadly, insult to injury is heaped on those strong enough to come forward. I find it completely inexcusable that federal employees, with a trust responsibility towards those they serve—namely the students—could act so egregiously.

As I travel across our region, I hear of the barriers that program advocates have to overcome simply to get help for those they serve. In some communities, there are no local services whatsoever. In others, there may be a local program, but when that program loses its vital funding, due to the end of a grant term or some other situation, there are no other local services for women in life threatening situations. In another community, the program staff may have to figure out one of four possible sites to take a sexual assault victim. Another program had to find a way to get women back from emergency services in a far off facility. There, the sexual assault victim was taken by ambulance to the emergency room sixty to hundred miles from home, and she was left to find her own way back with no resources. In all of these situations, very little effort has been made to plan for anything except the minimal medical response for victims. And it is the victims that suffer, often revictimized by the response process, or lack thereof, that they must face.

…

The long-term effects of violence to Indian women are well documented. We know that the damage to their quality of life endures well beyond the bruises. The fear they endure takes so much from women’s lives and the lives of their families and our communities. Depression, substance abuse, and suicide are often the remnants of the violence in the lives of Native women and their children. It is hard to put a life back together after such violence. Then pile on the poverty, isolation, and blame that Native women subjected to violence must face. The outcome is crushing.

These are the barriers victims, women and children, come up against in small communities, over and over, in their hunt for safety and perhaps some sense of justice. For years, I have heard the stories of women and their children having to overcome huge barriers to be safe and survive in some overwhelming situations. Often times, the advocates who help victims are also threatened in numerous ways as they seek to help women and their children.

…

One important step is a return of criminal jurisdiction to Indian nations over crimes of domestic violence, stalking, dating violence and sexual assault by non-Indians. This type of jurisdictional fix is critical to enhancing the safety of Native Women. Many episodes of violence against Native women include perpetrators of another race who know that they can continue to offend without any consequences due to the unique and confusing jurisdictional rules present in Indian country. With a jurisdictional fix that restores tribal criminal jurisdiction over non-Indians for these limited crimes, the offender that goes unpunished under the current system might finally get what he deserves and his victim might finally achieve a sense of peace, knowing that justice was served.

Source: O’Leary, Carmen. “Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters,” Testimony before the U.S. Senate Committee on Indian Affairs Oversight Hearing. Washington, D.C.: July 14, 2011.

Dear Colleague Letter Regarding VAWA Tribal Provisions, Senator Tom Udall (2012)

In 2012, U.S. Senators Akaka, Franken, Leahy, Murray, and Udall co-signed a “Dear Colleague” letter addressing the provisions of Section 904 of the Violence Against Women Reauthorization Act.

Under existing law, tribes have no authority to prosecute non-Indians for domestic violence crimes against their Native American spouses or partners on tribal lands. Yet over 50% of Native women are married to non-Natives and 76% of the overall population living on tribal lands are not Native Americans.

Currently, these crimes fall exclusively under federal jurisdiction. But federal prosecutors have limited resources and they may be located hours away from tribal communities. As a result, non-Indian perpetrators regularly go unpunished, their violence in allowed to continue and, all too often, it results in death for Native American women.

Section 904 of the Violence against Women Reauthorization Act provides a remedy for this serious criminal jurisdictional loophole. This tribal jurisdiction provision allows tribal courts to prosecute non-Indians in a very narrow set of cases that meet specific, reasonable conditions.

This provision does not extend tribal jurisdiction to include general crimes of violence by non-Indians, crimes between two non-Natives, or crimes between persons with no ties to the tribe. And nothing in this provision diminishes or alters the jurisdiction of any federal or state court.

Some question whether a tribal court can provide the same protections to defendants that are guaranteed in a federal or state court. The bill requires tribes to provide comprehensive protections to all criminal defendants who are prosecuted in tribal courts, whether or not the defendant is an Indian. Defendants would essentially have the same rights in tribal court as in state court.

Questions have also been raised about whether Congress has the constitutional authority to expand tribal criminal jurisdiction to cover non-Indians. This issue was carefully considered in drafting the tribal jurisdiction provision. The Indian Affairs and Judiciary Committees worked closely with the Department of Justice to ensure that the legislation is constitutional. Fifty prominent law professors sent a letter to Congress expressing their “full confidence in the constitutionality of the legislation, and in its necessity to protect the safety of Native women.” Their letter provides a detailed analysis of the jurisdiction provision and concludes that “the expansion of tribal jurisdiction by Congress, as proposed in Section 904 of S. 1925, is constitutional.”

Section 904 will create a local solution for a local problem. By allowing tribes to prosecute the crimes occurring in their own communities, they will be equipped to stop the escalation of domestic violence.

Right now, many Native women don’t get the justice they deserve. We must act to eliminate a double standard in the law. Tribes are already successfully prosecuting, convicting, and sentencing Native Americans who commit crimes of domestic violence against Native American women. This bill would allow tribes to do the same when a non-Indian commits and identical crime.

Source: Udall, Tom. “VAWA Tribal Provisions” Dear Colleague letter, Washington, D.C.: April 24, 2012.

See also: Oliphant v. Suquamish, 1978; Tribal Law and Order Act, 2010

Further Reading

Atwell, Mary Weick. Equal Protection of the Law? Gender and Justice in the United States. New York: Peter Lang Publishing, Inc., 2002.

Bachman, Ronet, Heather Zaykowski, Rachel Kallmyer, Margarita Poteyeva, and Christina Lanier. “Violence Against American Indian and Alaska Native Women and the Criminal Justice Response: What is Known.” U.S. Department of Justice, August 2008. Accessed June 10, 2015. https://www.ncjrs.gov/pdffiles1/nij/grants/223691.pdf

Cohen, Felix S. Handbook of Federal Indian Law. 1941. Reprint, Charlottesville: The Michie Company, 1982.

Dunn, Jennifer L. Courting Disaster: Intimate Stalking, Culture, and Criminal Justice. Piscataway, NJ: Aldine Transaction, 2002.

Futures Without Violence. “The Facts on Violence Against American Indian/Alaskan Native Women.” Accessed June 10, 2015. https://www.futureswithoutviolence.org/userfiles/file/Violence%20Against%20AI%20AN%20Women%20Fact%20Sheet.pdf

Greenfeld, Lawrence and Steven Smith. “American Indians and Crime.” Bureau of Justice Statistics, U.S. Department of Justice, February 1999. Accessed June 10, 2015. http://www.bjs.gov/content/pub/pdf/aic.pdf

Luna-Firebaugh, Eileen. Tribal Policing: Asserting Sovereignty, Seeking Justice. Tucson: University of Arizona Press, 2007.

Luna-Firebaugh, Eileen. “Violence Against Indian Women and the STOP VAIW Program.” Violence Against Women, an International and Interdisciplinary Journal, Sage Publications, Inc. 12, 2 (July 2005).

Murray, Virginia H. “A Comparative Survey of the Historic, Civil, Common, and American Indian Tribal Law Responses to Domestic Violence.” Oklahoma City University Law Review 23, 433 (Spring/Summer 1998).

O’Leary, Carmen. “Native Women: Protecting, Shielding, and Safeguarding Our Sisters, Mothers, and Daughters.” Testimony before the U.S. Senate Committee on Indian Affairs Oversight Hearing, July 14, 2011. Accessed June 14, 2015. http://www.indian.senate.gov/sites/default/files/upload/files/Carmen-O-Leary-testimony.pdf

Tjaden, Patricia and Nancy Thonennes. “The Prevalence, Incidence, and Consequences of Violence Against Women: Findings from the National Violence Survey Against Women.” National Institute of Justice & the Centers for Disease Control & Prevention, November 2000. Accessed June 10, 2015. https://www.ncjrs.gov/pdffiles1/nij/183781.pdf

Udall, Tom. “Violence Against Women Act Tribal Provisions,” Dear Colleague letter, Washington, D.C.: April 26, 2012. Accessed June 12, 2015. http://www.ncai.org/resources/testimony/senator-udall-s-dear-colleague-letter-regarding-vawa-tribal-provisions

Duro v. Reina, 495 U.S. 676 (1990).

Indian Self-Determination and Education Assistance Act, 25 U.S.C.A. 450a-n (1975).

Major Crimes Act, 18 U.S.C.A. 1153 (1885).

National Farmers Union Insurance Companies v. Crow Tribe of Indians, 471 U.S. 845 (1985).

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

Tribal Law and Order Act, 25 USC 2801 (2010).

United States v. Mazurie, 419 U.S. 544 (1975).

Violence Against Women Act, 42 U.S.C. 13701 (1994).

Canonization of Junípero Serra, 2015

Angela D’Arcy

Chronology

Time Immemorial/ 10,000–15,000 B.C.		Indigenous peoples—the ancestors of the citizens of the nearly 200 Native nations in California today—lived in the area now known as California. Each of these nations has origin, or creation, stories about how they came to exist.
1535		California first explored by the Spanish. Hernando Cortes leads expedition to La Paz.
1542		Juan Rodriguez Cabrillo lands at Point Loma in the area now known as San Diego Bay, where he claimed the land for Spain.
1769		“Sacred Expedition” launches from Baja, California. Fr. Junípero Serra founds San Diego de Alcala, the first of 21 missions established by the Catholic Church in California.
1769–1823		Twenty-one missions founded throughout California.
1771–1824		Various Native nations and indigenous peoples throughout the state organize resistance in the form of attacks on missions and mass escapes from the missions. See Sidebar 2 for more detailed discussion of these acts of resistance.
1773		Representación signed. Some refer to this as evidence of Serra’s dedication to California Indians. The Representación has been referred to as the Indian Bill of Rights. However, this claim is disputed by others who argue that the Representación was actually about consolidating power in the church rather than the state and had little or nothing to do with rights for Indians.
1784		Serra dies at Mission San Carlos Borromeo de Carmelo in what is now known as Carmel, California.
1806		Great Stone Church in San Juan Capistrano collapses due to earthquake, killing 40 Acjachemen/Juaneno Indians. Descendants hold a gathering every year to this day in honor of the lives lost that day.
1834		Missions are secularized.
1835		Around 1835, Pablo Tac, from the San Luis Rey Luiseno Indians, writes A Record of California Mission Life: Indian Life and Customs at San Luis Rey. This writing is significant because it represents one of the only first-hand written accounts of mission life from someone who experienced it.
1934		Priests in Monterey, California make official request to initiate the process of canonization for Serra.
1948, 1949		Hearings on Serra’s candidacy for sainthood are authorized by the Vatican’s Sacred Congregation for the Causes of Saints and held in Fresno, California.
1988		Serra is beatified by Pope John Paul II, furthering his path to sainthood.
January 2015		Pope Francis announces intention to canonize Junípero Serra.
January–September 2015		Native nations, indigenous organizations, churches, educational and religious institutions, and art galleries host multiple events, gatherings, art exhibits, scholarly debates, peoples’ tribunals, and other events in support of, and opposition to, Pope Francis’s January announcement regarding canonization of Serra.
July 2015		Pope Francis apologizes on behalf of the church to indigenous people during his visit to Bolivia.
September 23, 2015		Pope Francis holds a celebratory mass in honor of sainthood for Serra at the Basilica of the National Shrine of the Immaculate Conception in Washington, D.C.

Introduction

The lives of indigenous peoples in California were altered forever when Junípero Serra landed off the coast of San Diego in 1769 and established the first California mission. Spanish era colonialism and the introduction of the mission system have had dire consequences for the Native Peoples who have been living in the area for at least ten thousand years, according to archaeological evidence and since time immemorial according to many of the nearly 200 Native nations who called California home.

Junípero Serra’s name is well known throughout the state. Streets, parks, schools, and libraries are named after Serra, and his image is equally present via sculpture, paintings, mosaics, and other forms of art up and down the coast. For many, his name and the story of his role as a founder of California are a source of pride. For others, including many California Indian people and Native nations, his life and legacy represent loss of apocalyptic proportions. Due to the recent historic visit of Pope Francis to the United States in September 2015, and his announcement of sainthood for the Franciscan priest, Serra’s name and legacy are now known around the world.

In order to understand why one religion’s decision to designate one of its evangelizers from over 200 years ago a saint is causing such heated debates among scholars, communities, religious leaders, and Native People today, it is important to have a working understanding of California Indian history and the internationally utilized colonizing principle set forth in the Papal Bulls of 1452 and 1493, known as the Doctrine of Discovery.

This chapter introduces the concepts of colonialism and the Doctrine of Discovery, provides an overview of California Indian history with a focus on the mission period, defines canonization and sainthood, discusses the process by which one becomes a saint under Catholic law, and provides a timeline of the canonization process for Junípero Serra. Finally, the chapter concludes with a discussion of the major areas of controversy around canonization and how those opposing and supporting sainthood have responded.

Legitimizing Colonial Endeavors

The Doctrine of Discovery (DD)

DD is based on a series of Papal Bulls from the fifteenth century (Romero Institute, 2015) and has been used by European colonial powers to justify land dispossession from indigenous peoples throughout the world since then. The 1452 Papal Bull Dum Diversas authorized Portugal to “invade, capture, vanquish, and subdue all Saracens, pagans, and other enemies of Christ, to put them into perpetual slavery, and to take away all their possessions and property.” This statement of colonial doctrine was followed by the Papal Bull Romanus Pontifex in 1493, which continued support for Christian dispossession of lands from non-Christians and legitimized enslavement of non-Christians throughout the world (Rotondaro 2015).

Sidebar 1: A Timeline of Doctrine of Discovery (DD) Justification

1452–1493		Papal bulls authorize Christian monarchies to claim all non-Christian lands and “vanquish and place in perpetual slavery/servitude any heathens, pagans, Saracens, or other non-Christian peoples” (SPIN). These are Doctrines of Discovery.
1537		Established under Pope Paul III, this papal bull reaffirmed that Indians should not be deprived of liberty or property or be enslaved. (Sublimis Deus, 1537) Doctrine repeatedly ignored by colonial governments.
1542		Juan Cabrillo claims land now known as California for Spain using DD to support claim.
1769		Sacred Expedition is designed to consolidate Spanish colonial power in Alta California begins, and Serra establishes the first mission.
1823		Johnson v. McIntosh—U.S. Supreme Court uses DD as the basis of its decision to legitimize dispossession of land from Native nations by holding that tribes possess only a “right of occupancy” rather than title to land (Frichner 2010).
1831		Cherokee Nation v. Georgia—U.S. Supreme Court holds that tribes are “domestic dependent nations” and that their relationship between tribes and the U.S. government is one of ward and guardian (Hon. Wiseman).
1955		Tee-Hit-Ton Indians v United States—U.S. Supreme Court holds that, due in part to the Tee-Hit-Tons being in the hunter-gatherer stage of civilization, they possess only a right of occupancy to the lands they have called home since time immemorial.
2007		Declaration on the Rights of Indigenous Peoples (UNDRIP) is adopted by the General Assembly of the United Nations. Although UNDRIP recognizes rights of indigenous peoples, it does not officially repudiate DD.
2009		Resolution calling for the repudiation of DD passes during the Episcopal Church’s 76th General Convention (Resolution 2009-D035).
Present		Native nations continue to assert their rights as sovereign nations, and indigenous peoples around the world continue to appeal to governments and religious institutions to officially repudiate DD.

According to a report on DD prepared by the Special Rapporteur for the United Nations in 2010, DD enabled European Nations and Christian monarchies from the fifteenth century onward to “take over and profit from their [indigenous] lands and territories.… Centuries of destruction and ethnocide resulted from the application of the Doctrine of Discovery and framework of dominance to indigenous peoples and to their lands, territories and resources” (Gonella Frichner 2010).

Despite the fact that the papal bulls that inspired DD were created nearly 500 years ago, the ideology that indigenous peoples retain only a right of occupancy, and not a property title to lands they have occupied since time immemorial, remains a key legal principle in colonizing nations such as the United States, Canada, Australia, and New Zealand, throughout the world. It was also a key legal principle in Spain, Mexico, and U.S. colonizing efforts throughout California.

Spanish Colonization in Alta California

Although Spain first claimed territory in Alta California in 1542 when Juan Rodriguez Cabrillo landed at Point Loma in San Diego Bay and asserted title to the area for Spain under the Doctrine of Discovery, it would be nearly 200 years before Junípero Serra began the Sacred Expedition on behalf of his government. When Serra’s expedition launched in 1769, Spain was anxious to establish a more permanent presence in the region due to fears of land encroachment from Russians moving south from Alaska, and the establishment of missions throughout the state supported this goal (Miranda 2015).

Franciscan friar Junípero Serra led the establishment of the first nine of twenty-one Spanish missions throughout the area of Alta, California, which was then part of the Spanish Empire. Pope Francis canonized him on September 23, 2015. Many Native Californians criticized Serra for the forced labor, beatings and whipping, and premature deaths of thousands of their ancestors under his supervision. (Library of Congress)

While Serra specifically represented the Catholic Church as a Franciscan priest, it is important to remember that at this point in European history the church and state were extremely connected in their goals and purpose. The number of non-military or church-affiliated colonists never reached more than 3,200 in Alta California, so the missions, with their aim of converting and “civilizing” the Indians, were important to maintain Spain’s political and military control over the region. Additionally, the missions produced all of the colony’s cattle and grain and were therefore economically valuable to Spain as well (West Film Project 2001).

These factors are important to note because they place the entire mission project, and Serra’s leadership role in the endeavor, within the broader context of the political and military strategy of the Spanish empire during that time period. The establishment of missions, and the efforts to convert and maintain an Indian presence within the mission walls, were a critical component of Spain’s ability to maintain and expand empire throughout Alta California.

Overview of California Indian History and the Mission Era

Indigenous Peoples in California before Colonization

Indigenous peoples have lived in California for a very long time—for at least 10,000–15,000 years, according to archaeological records rooted in the Euro-American scientific traditions and since time immemorial, according to songs and stories passed down for generations from elders to youth in Native communities. Today, there are over 170 federally recognized and unrecognized Native nations that can trace their roots to ancestral territories located in the area now known as California. Each Native nation has its own languages, histories, cultures, and unique stories about how its people came to exist in the area where they lived at the time of first contact with Spanish soldiers and missionaries.

Realities of the Mission System for California Indians

California Indian population at the time of contact is estimated at approximately 300,000. By 1860, only 30,000 California Indians remained (WFP 2001). In less than 300 years, the population decreased by nearly 90 percent. Sixty-thousand deaths were logged at California missions between 1769 and 1834. The death rate for the sixty-six years of mission operation was 13.3 percent for children and 5.9 percent for adults (Heizer 1978). Disease, in particular sexually transmitted diseases, was a significant factor in the rapid population decline among indigenous people in California. Syphilis, which was introduced by Spanish soldiers, was a major factor in rising death rates and declining birth rates since it also caused sterility (Archibald 1978).

In terms of conversion, while proponents of the mission system often point to large numbers of Indian converts—estimates place the number at around 81,000 baptisms (Heizer 1978)—as evidence of Serra’s success and therefore justification for canonization, according to Professor Jonathan Cordero, an Ohlone and Chumash Sociology professor at California Lutheran University, based on mission records, fewer than 5 percent of all baptized California Indians were voluntary converts (Miranda, 2015).

According to proponents of Serra and the mission system, conversion was voluntary. However, once an Indian had been baptized, if he or she were to try to leave the mission grounds, he or she would be hunted down by soldiers and forcibly returned to the mission, often in shackles. Corporal punishment, sanctioned by Serra on multiple occasions in his own writings, was prevalent throughout the mission system. Women and men were both placed in stocks and flogged for transgressions. Twenty-one lashes with the whip was the limit placed on punishment of this sort (Archibald 1978). According to Padre Hora, a priest upset with the treatment of Indians at the missions, “The treatment shown to the Indians is most cruel.… for the slightest things they receive heavy floggings, are shackled and put in the stocks and treated with so much cruelty they are kept whole days without a drink of water” (Miranda 2015).

How Saints Are Made

Canonization is the process by which one is declared a saint and is a four-step process under Catholic law. Step one is a request. At least five years after the death of a person, a formal request can be made for sainthood (Sadlier 2014). In Serra’s case, the request came 150 years after his death, in 1934, from one of the missions he founded in Monterey, California (Pinsky 1986).

The second step in the process is determination, which occurs once the bishop sends a formal report and request for review of the case to Rome where the candidate’s life and writings are studied to make sure they comport with Church doctrine. Once a candidate is confirmed as virtuous and heroic in their faith, they are venerated (Sadlier 2014).

From 1934 to1948, biographical information about Serra was gathered from around the world in support of his case. In 1948 and 1949, hearings on Serra were authorized by the Vatican’s Sacred Congregation for the Causes of Saints and held in Fresno, California (Pinsky 1986). California Indians who objected to canonization were not allowed to participate in the hearings.

Sidebar 2: Indigenous Resistance during California’s Mission Era

Time Immemorial–1500s		Area now known as California was home to hundreds of indigenous nations with distinct cultural, spiritual, ecological, and linguistic practices.
1769–1823		First Mission is established in San Diego, and 21 are established throughout Alta California over the next 50 years.
1771		One of the first recorded instances of Indian resistance to the mission system in California: Indians attack San Gabriel Mission. Historians believe that attack was triggered by a soldier’s rape of a Kumivit woman (Castillo, 75).
1775		Kumeyaay Revolt Mission San Diego. Participants set the mission on fire and kill one priest. At least 15 Kumeyaay villages participate in this resistance to colonial encroachment (Archibald 1978).
1776		Costanoan (Ohlone) Indians resist the establishment of mission at San Francisco until some are threatened with execution. Indians set fire to Mission San Luis Obispo during the same year (Castillo, 75).
1785		At least six villages as well as neophytes (baptized) Indians within the mission participate in planned revolt in Tongva territory at Mission San Gabriel (Hackel, 655).
1795—1796		Over 200 Costanoan Indians stage a mass escape from Mission Dolores. During the same year, over 280 Indians escape from the San Francisco Mission in 1795, and an additional 200 escape the following year (NAN 2014).
1805		Two hundred Indians escape San Juan Bautista Mission (NAN 2014).
1824		Chumash at La Purisma Mission Revolt. Two thousand Indians capture the mission and are joined by Indians from Santa Ynez and San Fernando Missions. After four months, the Spanish recapture the missions (Castillo, 77).
1833		The Secularization Act: The Mexican government repossesses the missions.
1835		Pablo Tac, a Luiseno Indian from San Luis Rey, writes A Record of California Mission Life, which remains one of the only first-hand accounts of mission life from an Indian perspective (Bean and Vane, 137).

Step three is beatification and requires evidence that a miracle has been brought about by the candidate (Sadlier 2014). In 1985, Serra was venerated, and in 1988 he was beatified by Pope John Paul II after a miracle was attributed to him. The verified miracle was the claim of a 70-year-old Franciscan nun whose lupus (diagnosed as incurable) was cured after she asked Father Serra to intervene on her behalf in prayer (Pinsky 1987).

Others remained equally committed to presenting the case against Serra. In 1987, Rupert and Jeannette Costo, both Native American, published the book The Missions of California: A Legacy of Genocide. Rupert Costo was a Cahuilla descendant of California Indians who had survived the mission era. Jeanette Costo was Eastern Cherokee. Despite the fact that both were practicing Catholics, they considered sainthood for Serra to be “an unforgivable moral disgrace to American Indians.…” (Jeanette Costo, quoted in Hirsley 1988).

The final step in the process of sainthood is canonization, which generally occurs after evidence of a second miracle attributed to the candidate has been confirmed (Sadlier 2014). Despite the fact that Serra only had a single confirmed miracle attributed to him, Pope Francis announced his intention to canonize Serra on January 15, 2015. The special mass to announce his sainthood was held in Washington, D.C., on September 23, 2015.

Controversial Sainthood for Serra

Was Sainthood Justified?

Some scholars speculate that the decision to canonize Serra has a great deal to do with the changing demographic of Catholics and the church’s desire to bring more Latino converts into the fold (Manson 2015). Serra was the first saint canonized on U.S. soil. For the state and secular components of missions as historic sites, sainthood for Serra is likely to bring increased tourism and visitors to the missions, especially those with special connections to Serra.

Supporters point to a so-called Indian Bill of Rights, known as the Representación, signed on March 13, 1773, as evidence of Serra’s commitment to California Indians. Others argue that this document had little to nothing to do with California Indians, but rather was about consolidating church power over Spanish military presence in Alta California (Grabowski 2015).

Opponents of the canonization effort also point to a contradiction between the pope’s stance on social justice and human rights issues as well as his direct apology to indigenous peoples in July 2015 and his decision to make Serra a saint. During his visit to Bolivia in July 2015, Pope Francis offered this historic apology:

I say this to you with regret: Many grave sins were committed against the Native People of America in the name of God. I humbly ask forgiveness, not only for the offense of the church herself, but also for crimes committed against the Native Peoples during the so-called conquest of America. (as quoted in Yardley and Neuman 2015)

Opponents ask how he can apologize on one hand and ignore the multiple requests from California Native nations and others to deny sainthood for Serra due to the long-term negative impacts on indigenous peoples in California on the other.

Another looming issue in the controversy is education. The Catholic Church, the state of California, and secular historic preservation institutions affiliated with the California missions have been criticized by opponents of canonization for perpetuation of the “mission mythology,” which paints a romanticized version of the mission era, and often sanitizes, or altogether erases, local Native perspectives from the story (Miranda 2015).

Responses to Sainthood for Serra

Responses have been artistic, spiritual, and political and include participation in the canonizing mass, gatherings, art exhibits, films, direct actions, petitions, organization of scholarly convenings, and even a 750-mile walk across the state.

Father James Nieblas, the first citizen of his nation (the Juañeno Band of Mission Indians, Acjachemen Nation (JBMI)) to be ordained as a Catholic priest, was invited to participate in the canonization mass for Serra. When he received the news, Nieblas called on his Juañeno community to support a unification mass he intended to hold prior to his trip to Washington, D.C., for the pope’s historic visit. Many leaders from his nation—the same nation that passed a resolution opposing canonization and calling for a repudiation of the Doctrine of Discovery—participated in his unification mass and offered traditional cultural gifts for him to bring to Pope Francis when he met him at the historic mass (Bharath 2015).

Ohlone Andrew Galvin, curator of the Dolores Mission in San Francisco, carried a reliquary containing a relic of Serra next to the altar, and his cousin, Vincent Medina, one of the few linguists fluent in Chochenyo, the language of the Ohlone people in Northern California, read the first scripture in his indigenous language during the historic mass announcing sainthood for Serra (CNC 2015).

Indigenous peoples opposed to canonization responded quickly and in a variety of ways. While it is not possible to cover every act of discourse and resistance by indigenous peoples and allies on the issue of canonization, the events and actions listed below represent a sampling of the kinds of responses indigenous peoples engaged in collectively during the year following the pope’s announcement.

• Walk for the Ancestors—Fernandeño Tataviam Band of Mission Indians citizens Caroline Ward Holland and her son Keagan Holland walked over 750 miles and visited each of the 21 missions in California as a way to raise awareness about the issues and pay respects to the ancestors who lived there.
• Community Gatherings—Native nations, in collaboration with American Indian Movement Southern California (AIM SoCal), organized peaceful gatherings and prayer vigils at the 21 missions throughout the state. Hundreds of Native and non-Native People attended these events between March and November 2015.
• Tribal Resolutions and Letters—Native nations wrote letters to the pope, governor, and others urging no sainthood for Serra. The Amah Mutsun Tribal Band presented a statement opposing canonization at the United Nations Permanent Forum on Indigenous Issues. The Pechanga Band of Luiseno Indians, Juaneno Band of Mission Indians, Acjachemen Nation, Coastal Band of the Chumash Nation, Ewiiaapaayp Band of Kumeyaay Indians, Mesa Grand, Los Coyotes Band of Indians, Mooretown Rancheria, Ohlone/Coastanoan Esslen Nation, and the Winnemem Wintu tribe all wrote letters or passed resolutions opposing canonization, and in some instances also calling for a revocation of DD. Notable individuals, including Congressional Medal of Freedom recipient and founder of the Morningstar Institute Suzan Shown Harjo, and Steven Newcomb, scholar and director of the Indigenous Law Institute, also called on the pope to abandon plans for canonization and revoke the Doctrine of Discovery.
• Community-Based Symposiums—the University of California, Riverside Center for California Native Nations, established via an endowment from Cahuilla scholar Rupert Costo, hosted a day-long event titled California Indians, Canonization of Junípero Serra, and Consequences of Colonialism, and the Barbareño Chumash Tribal Council “’Iyalmuwič,” Affiliate of the Seventh Generation Fund for Indigenous Peoples, and AIM SoCal, hosted a gathering titled Disrobing Junípero Serra—Saint or Monster? to address the issue.
• Connecting Canonization and the Doctrine of Discovery—Several events and film screenings were held around the country and throughout the world, including in Lenape territory in Philadelphia and on the Salt River Reservation in O’Odham Hemackam territory, calling for a revocation of DD and connecting the issue to canonization.
• Artistic Responses—AIM SoCal also organized a guerilla street theater tribunal holding Serra on trial for crimes against humanity, the MCCLA hosted an art exhibit, The Bones of Our Ancestors: Endurance and Survival Beyond Serra’s Mission, and countless memes and poster art were created in response to the canonization of Serra.
• Social Media—indigenous activists established several Facebook pages, Twitter hashtags, and online petitions encouraging people to mobilize around the issue. The petition established by a citizen of a Native nation in California garnered more than 10,000 signatures prior to the pope’s visit.

Conclusion

Despite substantial difference of opinion on the issue of sainthood for Serra, something that can be agreed on is that the controversy has opened the door for deeper conversations about the realities of the mission system and its impacts on Native nations and indigenous people in California.

One quote frequently attributed to Serra is “Always forward, never back.” On September 23, 2015, Pope Francis made an irrevocable decision. From that point forward, in the eyes of millions of Catholics, and countless others around the world, Junípero Serra is now a saint. The collective capacity of society to “look back” in an honest and empowering way is critical to our ability to move forward together. Hopefully, in the years following the pope’s decision to canonize Serra, individuals and institutions will continue to dialogue and together create a story of California that is more representative and inclusive of all views—especially those of the people who have lived in California for thousands of years or forever, depending on one’s perspective.

Biographies of Notable Figures

Junípero Serra (1713–1784)

Junípero Serra is widely considered one of the most influential figures in the history of the place now known as California. Countless buildings, parks, statues, and streets throughout the state are named after him. Even though his role as colonizer has largely been unexamined in mainstream media and education, the Catholic Church’s recent decision to elevate Junípero Serra to his status as saint in 2015 sparked worldwide discussion about whether or not such a designation is appropriate. Although he was officially made a saint in 2015, his impact on California Native nations will continue to be a subject of much discussion in the future.

Early Life

Serra was the third of five children born to farmers Antonio Nadal Serra and Margarita Rose Ferrer. He was born Miguel Jose Serra on November 24, 1713, in the village of Petra on the Spanish island of Majorca. Serra attended a Franciscan primary school run by monks and was 15 years old when he decided to become a priest (USCCB 2015). He then enrolled in the Franciscan university the Convento de Jesus, where he began his educational career as a philosophy student around 1729 or 1730. He took the name Junípero after one of the first companions of St. Francis of Assisi when he joined the Franciscan order in 1731 (Weber 2015).

Historians place the date of his ordination at sometime between 1737 and 1739 (Healy, Bay Area Serra Club). Serra was an intellectually astute student who soon gained the attention of his superiors as a possible future professor. At the age of 30, he became a theology professor at Lullian University in the Majorcan capital Palma (Weber 2015). A few years later, Serra decided his true calling was as a missionary and petitioned the church to allow him to travel abroad.

Serra Travels to the “New World”

Committed to bringing his faith to non-Christians through missionary work, in 1749 Serra traveled to Mexico with a former student, Francisco Palóu, to begin his evangelical career. Upon arrival, he chose to walk the entire 250-mile journey to Mexico City. While on the trek, his leg was injured, and it would trouble him for the remainder of his life (Weber 2015). In 1751, he volunteered for the Sierra Gorda missions located in the lands of the Pame Indians. For eight years, he worked there and learned the Otomi language as a mechanism to support his evangelical conversion efforts among the Pame (USCCB 2015).

In 1767, he was appointed to the presidency of the 15 missions formerly administered by the Jesuits, and in 1769 he began his journey into Alta California, establishing missions along the coast.

California Missions, 1769–1782

For the remaining years of his life, Serra worked on behalf of the church and in collaboration with the Spanish military to establish the first nine of 21 missions in California. Missions established by Serra include: San Diego, San Carlos Borromeo, San Antonio, San Gabriel, San Luis Obispo, San Francisco, San Juan Capistrano, Santa Clara, and San Buenaventura (Weber 2015).

On August 28, 1784, Serra died at the age of 70 at Mission San Carlos, located in Carmel, California. He was buried exactly 35 years from the day he sailed for the “New World,” in the floor of the sanctuary at Mission San Carlos, where he remains to this day. According to the United States Conference of Catholic Bishops, by the end of his life in 1784, Indian baptisms in California reached 6,736, and 4,646 Christianized Indians were still living within the missions established by Serra at the time of his death (USCCB 2015).

Path to Sainthood

Serra’s path to sainthood began in Fresno, California, in 1934 when the Diocese of Monterey officially initiated the process. For the next 50 years, efforts were maintained, and in 1985 Serra was declared venerable, meaning he was formally recognized as having lived a life of ‘ “heroic virtue.” In 1987, a miracle was attributed to him, and on September 25, 1988, he was beatified by Pope John Paul II (Pinsky 1986).

On September 23, 2015, Pope Francis made Serra a saint during a special mass at the Basilica of the National Shrine of the Immaculate Conception in Washington, D.C. This was the first time an individual had been canonized by the Catholic Church in the United States.

During the mass, the Pope said of Serra, “[he] sought to defend the dignity of the Native community, to protect it from those who had mistreated and abused it. Mistreatment and wrongs which today still trouble us, especially because of the hurt which they cause in the lives of many people” (O’Donnell 2015).

Many California Indians, direct descendants of the indigenous survivors of the mission legacy, were in Washington, D.C., during the Pope’s visit. Some were in attendance and participated in the mass, and others were there to protest the sainthood of a man credited with founding a system widely known to have resulted in the loss of thousands and thousands of Indian lives over the course of the mission era in California.

Although popular understanding of the man and his role in history have, until recently, been largely portrayed as positive in mainstream media, for many Native nations and indigenous peoples throughout the world, he was, and remains, a symbol of a brutal era of colonization that resulted in loss of language and life and suppression of ancient cultures in the name of church and state.

Despite the efforts of Serra and his colleagues to eradicate California Native cultures in an attempt to Christianize them and consolidate power in the Spanish crown, California Native nations and cultures remain strong and vocal today—as evidenced by their voices around the issue of canonization. As one Native descendant of the survivors of the mission period said, “Our histories, cultures, and lives have survived over three centuries of colonization and genocide. Not even a miracle could stop us now” (Chilcote 2015).

Toypurina (1760 est.–1799)

Toypurina is a significant figure in California Indian history. Her life and actions provide one perspective on early relationships between the indigenous nations of California and Spanish military and missionaries responsible for the first wave of colonization to reach the indigenous peoples of the region. She was a Tongva spiritual leader and co-organized a rebellion against the Mission San Gabriel in 1785 (John 2014).

What we know of her life is largely the story of a planned indigenous uprising against the mission system coordinated across multiple villages and supported by several prominent Tongva leaders of the time. Her story therefore contributes to the discussion on the controversy around the recent canonization of Junípero Serra. This uprising remains one of the most significant markers we have today of how citizens of Native nations experienced the mission system in California. It is also significant that her story illustrates that the indigenous peoples of this land recognized and respected female leadership.

Early Life

Toypurina was a young indigenous woman from the Native nation now known as Tongva or Gabrielino—one of three Native nations with ancestral territories in present-day Los Angeles County.

Estimates place the number of California Indians as high as 300,000 at the time of first contact (Indian Country Diaries 2006) and the number of Gabrielino/Tongva at around 5,000. Tongva territory covered about 1,500 square miles of the Los Angeles Basin and stretched west to the islands off present-day Los Angeles (Hackel, 648).

Born in the village of Japchivit, Toypurnia was from an elite family. Her father was a political figure, and at the time of the rebellion her brother was chief of the village of Japchivit, and considered “very wise” by people in the community (Hackel, 654). Her strong political ties, in addition to her reputation as a medicine woman among her people, contributed to her role as a leader in the Tongva uprising at Mission San Gabriel in 1785.

Indigenous Rebellion Mission San Gabriel, 1785

On October 25, 1785, Tongva leaders allied with as many as eight local Tongva villages and planned an attack on the mission San Gabriel. While the issue of Toypurina’s exact role in the rebellion remains debated by scholars and communities today, it is well established that she was at least one of the lead organizers of the event. She worked with neophyte Nicholas Jose and others to recruit three villages and multiple tribal leaders to participate. According to some stories, her powers as a medicine woman were thought to be so great that she was expected to immobilize the missionaries before the main attack so their followers would only have the soldiers to fight. However, the Spanish soldiers and priests were made aware of the plan prior to its implementation and were therefore able to thwart it (Welch 2006).

Evidence in the record highlights that the rebellion was likely sparked by Spanish military imposition of strict penalties for Indians engaging in traditional cultural practices such as conducting annual ceremonies. During the trial, Nicholas Jose, one of the neophyte (baptized) organizers, said that he had participated in the revolt because the padres had refused to let him perform ceremonies, in particular the annual Tongva Mourning Ceremony to honor those departed in their calendar year (Hackel, 651).

In 1782, the governor of California ordered the mission guard at San Diego to forbid baptized Indians from holding traditional dances. It is likely that the governor’s mandated prohibition on traditional cultural practices was communicated to soldiers at missions throughout Alta California (Hackel, 651).

It is clear from the historical record that suppression of indigenous religious freedoms was a significant, if not the central, factor in the decision of many Tongva to support the uprising. By 1785, the year of the rebellion, one-third of the adults from Nicolás José’s village and one-half of the Sibapet children baptized at Mission San Gabriel were dead (Hackel, 653). The high rates of baptism and death among people from the rebellion leaders’ home villages, coupled with the recent ban on traditional ceremonies, likely both contributed to the 1785 revolt.

According to court records and translations, when asked why she had participated in the resistance, Toypurina said that she “was angry with the priests and all the others at the mission, because they were living on their land” (Hackel, 655). One can read the planning of this event and Toypurina’s participation in it, as further evidence that she was defending the sovereign rights of her people to continue engaging in their traditional spiritual practices.

Post-Rebellion Life

Toypurina and the other leaders of the revolt were found guilty of insurrection at trial. Five people were sentenced to 25 lashes, and twelve were sentenced to 15 to 20 lashes. The beatings took place in public to serve as a reminder to the remaining Indians of what could happen if they were to resist Spanish mission and colonizing policies (Hackel, 657).

Toypurina was held prisoner at Mission San Gabriel for the remainder of the trial. During this time, she was also baptized and renamed Regina Josepha by a mission priest. Her husband refused baptism, and their marriage was annulled by the church (Hackel, 651). It remains unclear whether this baptism was by choice or coercion.

Toypurina’s sentence included banishment to Mission San Carlos Borromeo in Carmel, California, where she eventually remarried a Spanish soldier named Manuel Montera. During their marriage, they had three children—Cesario, Juane de Dios Montero, and Maria Clementia. Toypurina, now called Regina Josepha, died at Mission San Carlos in 1799, less than 15 years after helping to plan a revolt against colonizing forces invading her Tongva homelands.

Lasting Legacy

Toypurina remains a symbol of importance to her own Native nation and to many Native nations, communities, and movements today. Known in various circles as “medicine woman,” “spiritual leader,” “instigator,” “witch,” “superstitious woman,” “freedom fighter,” and “wise woman,” one thing remains clear; her name and stories continue to evoke powerful symbols of freedom, resistance, and resilience for the people who remember her.

Further Reading

Archibald, Robert. “Indian Labor at the California Missions: Salvation or Slavery?” The Journal of San Diego History, Spring 1978, Vol. 24, No. 2, available at http://www.sandiegohistory.org/journal/78spring/labor.htm

Bharath, Deepa. “Orange County and Pope Francis: Native American Priest to Meet Pope for Father Serra Canonization.” Orange County Register, September 23, 2015, available at http://www.ocregister.com/articles/nieblas-684151-mass-jimmy.html

Castillo, Edward and Robert Howard Johnson. Chapter 4, “Resistance and Social Control.” In Indians, Franciscans, and Spanish Colonization: The Impact of the Mission System on California Indians, Albuquerque: University of New Mexico Press, 1995.

Chilcote, Olivia, Ph.D. Candidate, Ethnic Studies, UC Berkeley, “It’s Complicated: One Native Californian’s Thoughts on Junípero Serra’s Canonization.” September 22, 2015, available at http://blogs.berkeley.edu/2015/09/22/its-complicated-one-native-californians-thoughts-on-the-canonization-of-junipero-serra

General Convention, Journal of the General Convention of the Episcopal Church, Anaheim, 2009 (New York: General Convention, 2009), pp. 371–72.

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