The Tribal Law and Order Act and Perceptions of Indigeneity

Responses to the Tribal Law and Order Act have been numerous. A good number of these have been celebratory in nature and characterize the TLOA as a “historic” piece of legislation that “will allow us to write a new and much better chapter in the history books regarding law enforcement in Indian communities.”¹⁵ Notably, however, other reactions to the

Act laud the effort it represents but also describe it as merely an initial step to eradicating violence in Indian Country. Many of these responses come from Native women entrenched in the anti-violence movement and speak to the limitations of the TLOA, which range from failing to allocate adequate funding to failing to sufficiently address the 1978 Oliphant decision that, as discussed in Chapter Two, allows non-Indian perpetrators to commit acts of violence with impunity.

These sentiments are echoed by a handful of others who too argue that “the TLOA places a federal band-aid over the current crime crisis, but it certainly does not do enough to foster longterm solutions to the problems.”¹⁶ For example, Gideon Hart, law clerk to the United States District Court for the Northern District of Ohio, posits that “future legislation would ensure that tribal law enforcement agencies and courts are adequately funded, further increase the sentencing authority of tribal courts beyond the proposed three-year limit, and legislatively overturn Oliphant to provide for tribal jurisdiction over non-Indians who commit crimes in Indian Country.”¹⁷ (Emphasis Mine.) And Suzianne Painter-Thorne, Associate Professor of Law at Mercer University School of Law, calls the Act “a half-measure that would do little to address the underlying impediment to effective tribal law enforcement by leaving prevailing

jurisdictional confusion in place.”¹⁸

As critical as these responses are to addressing the most glaring limitations of the Act, it must also be acknowledged that these critiques, like the Act itself, tend to overlook the settler colonial context within which the Act operates. For instance, the most critical responses to the TLOA consistently assert the need to repeal Oliphant so that tribal jurisdiction can be extended over non-Indians. It's proponents, of course, argue this should be done in the name of sovereignty and self-determination. In other words, Native nations should have the sovereign right to exert control over those residing on or visiting reservation lands. Noteworthy, however, is that the conceptualization of a post-Oliphant world doesn't necessarily translate into a world where Native nations have jurisdictional rights as sovereign peoples, but rather, as former U.S. Attorney for the District of Colorado Troy Eid articulates it, “ending Oliphant means extending tribal court jurisdiction to all citizens in a way that fully protects their rights under the U.S. Constitution.”¹⁹ (Emphasis mine.) Furthermore, the proposals for extending, or returning, tribal jurisdiction over non-Indians sound more akin to the rhetoric of assimilation than that of sovereignty. Eid asserts, “A better approach would be to ensure that the tribal courts themselves -- based on their own assessment of their sovereign interests -- meet the federal Constitutional requirements”²⁰ and, he continues, “those tribal courts wishing to exercise criminal jurisdiction over non-Indian defendants could be supported in doing so starting on a certain date, provided they agree voluntarily to integrate federal constitutional substantive and procedural protections into their justice systems.”²¹ (Emphasis mine.) In other words, undoing the jurisdictional restrictions placed upon tribes by Oliphant, and thus recognizing tribal sovereignty, is a priority, or even a possibility, only if tribes volunteer to adopt federal mandates, procedures, and understandings of “law and order” itself.

If Native nations choose not to voluntarily integrate such settler colonial understandings of justice, then their sovereignty will continue to be unrecognized and undermined by the United States. Similar logic, wherein which Native nations have had to “volunteer” to behave in decidedly less than Native ways (in terms of political, economic, social, and legal structure, etc.) in order to be recognized as sovereign Native peoples plagues the history of Federal Indian legislation. The Indian Reorganization Act, the federal recognition process for tribes, and the enrollment of Native citizens are only a few examples of other legislative measures that require a similar sort of shape-shifting in order for Native peoples to affirm their sovereignty. Such colonial molding of Native polities reeks of assimilationist tactics to eventually do away with Native identity altogether so that Native peoples can be incorporated into a more homogenous and, thus, more manageable US citizenry.

Equally as problematic as overlooking the context of colonialism the Act exists in is the (intimately related) acceptance of the manner in which the Act portrays indigeneity. From the earliest Senate hearings to the signing of the TLOA to media coverage of the legislation, Native communities are described in negative and disparaging ways. Proponents of the legislation argue “it is difficult to overstate the severity of the problem” since “violent crime in American Indian and Alaska Native communities is at unacceptable levels.”²² The “lawlessness” of Native communities is regularly asserted while Amnesty's statistics of violence against Native women are placed alongside stories of gang activity and methamphetamine use to substantiate such claims.²³ Furthermore, the root causes of criminal activity in Native communities are identified as “substance abuse, poverty, and lack of educational and employment opportunities.”²⁴ Thus, the Native world described by the TLOA is a very particular one indeed. It is a “broken” world where “lawlessness,” “incompetency,” and “hopelessness” prevail. It is a world where alcoholism, poverty, and unemployment have been credited with the demise of “law and order” and a where Native inferiority, negligence, and deviancy is implied. Rarely, if at all, however, is it described as a world that also finds itself plagued by settler colonialism, institutional racism, and the logic of elimination.

In an open letter to tribal and other marginalized communities, scholar Eve Tuck addresses the consequences of describing communities in this manner, even in seemingly benevolent attempts to “fix” the harm or injury. She terms this practice “damage-centered research” and invites researchers, educators, and targeted communities themselves to take seriously the outcome of these sorts of characterizations. Tuck argues that even when damagebased research (i.e. research that continually, and exclusively, documents pain, suffering, and/or loss) is socially and historically situated, “the significance of these contexts is regularly submerged” so that the context of racism and colonization becomes secondary and “all we're left with is the damage.”²⁵ Arguably, the Tribal Law and Order Act documents precisely that -- damage. What the TLOA does not document is colonialism -- the context for said damage. Thus, the TLOA does not attempt to “fix” colonialism because it does not see colonialism as the problem. It attempts to fix broken Indian peoples, broken Indian justice systems, and, as far as suggestions to overturn Oliphant go, the broken jurisdictional maze that makes the federal government unaccountable to its “nation-to-nation” relationship with Indian peoples.

The TLOA is not alone in its myopic and damaging characterization of Native peoples, however. The way in which the legislation portrays Native peoples and Indian Country builds on a body of damage-centered media coverage that proliferated after Amnesty International's report. Long-time activist Bonnie Clairmont, from the Tribal Law and Policy Institute speaks to the heightened “concern” for Native women that erupted only after Amnesty “illuminated” the issue of violence and shamed the US government. She recalls suddenly receiving numerous telephone calls inquiring about the rates of violence: “They were all wondering -- `where did this come from?' I have to say as a Native woman we all know. We've been saying it and shouting it from the rooftop. But who wants to listen to Native women?”²⁶ Article after article, academic as well as popular, and press release after press release began reporting the staggering rates of violence against Native women. The issue became a national “concern” that, although not new at all, had suddenly catapulted to importance and prompted additional investigative endeavors committed to both unveiling and offering solutions to the problem of violence among Native peoples. As discussed above, however, these accounts generally failed to describe the colonial context of violence and instead focused on Native women as victims of individual perpetrators.

For example, in November of 2007, Michael Riley of The Denver Post wrote and published a three-part series of articles titled “Lawless Lands.” These pieces cover the information unearthed in a sixth-month investigation led by The Denver Post. The three separate articles cover a range of issues relating to justice in Indian Country and are titled, from first to third, “Promises, Justice Broken,” “Justice: Inaction's Fatal Price,” and “Principles, Politics

Collide.” A fourth, follow-up piece was printed the day after the series and was titled “Path to Justice Unclear.” The picture Riley paints of Indian Country is particularly bleak and disturbing, but not altogether surprising. Directly responding to Amnesty's cries, the first article in the series sets the tone of his exposé by invoking “the tales of monsters” that plague “some of the most violent and impoverished places in America.”²⁷ Over the next two pieces, Riley continues to portray Indian Country as infested with crime, sadness, violence, despair, and hopelessness. For example, he describes the Navajo community To'hajiilee as “in many ways typical” of the sensational deterioration he wishes to document: “the peaceful veneer is deceptive. Alcoholism and drug use are chronic, and from that stems crime that is at once brutal and intimate -- often committed by family members, but certainly among people who know each other: Rape. Bloody beatings. The physical and sexual assault of children.”²⁸ Such portrayals do not alter the way Native communities are perceived by the general public but rather resemble centuries-old descriptions of Native communities as inferior, uncivilized, and in need of the so-called federal “protection” articulated in concepts such as “domestic dependent nation” and the guardian-ward relationship established between the federal government and Native peoples.

The picture Riley paints of Indian Country inhabitants too is horrific. In approximately 21 separate vignettes, he documents specific incidents of crime. Ranging from stories of fathers sexually assaulting their own children to stories of youth murdering friends and relatives, these accounts certainly portray those residing in Indian Country as the “monsters” Riley has previously invoked. Interestingly enough, though, in only 2 examples does Riley ever mention the existence of non-Indian perpetrators. In the 3^rd of the series, he speaks briefly to the issue of non-Indian employees embezzling from tribal casinos and in the following paragraph mentions that Mexican cartels take advantage of jurisdictional confusion to sell meth and other drugs on reservations. Neither of these mentions contains specific accounts or the names of individual perpetrators as his other vignettes do. Nor in any other vignette is a non-Indian perpetrator identified. All assailants are either designated as Native or their ethnicity is left undesignated.²⁹ This is extremely problematic since it has been well-documented that in at least 86% of the reported cases of sexual assault against Native women, the perpetrators have been identified as non-Native men.³⁰ We also know that “currently, the average Indian reservation has more nonIndian residents than Indian residents.”³¹ By omitting such critical and contextual information, portrayals like the Denver Post's simply exacerbate widespread and stereotypical perceptions of Indian people as inherently violent, criminal, and damaged.

That the TLOA leaves unchallenged, and actually relies upon, negative and disparaging perceptions of indigeneity speaks volumes to its potential to further solidify white supremacy and colonialism. Violence against Native women does exist. Substance abuse and poverty in Native communities also exist. And these realities must be spoken if they are ever to be redressed. But, they must be spoken of more complexly, in ways that account for and interrogate the colonialism, racism, and heteropatriarchy they are entwined with. If this is not done, like damage-centered research that ultimately pathologizes that which it investigates, damagecentered legislation such as the TLOA will further pathologize the Native communities it purports to “protect.” Such pathologization is not trivial. It aids in reproducing hegemony and justifying the biopolitical regulation of marginalized communities.

The Tribal Law and Order Act and Native Criminality

One provision of the TLOA that has garnered considerable attention from Natives and non-Natives alike is the increase in sentencing authority of tribal courts. Under the Indian Civil Rights Act and its amendments prior to the TLOA, tribal justice systems had been limited to imposing a maximum one-year sentence and $5,000 fine upon any Indian offender who commits a crime within their respective jurisdictions (regardless of the severity of the crime committed).³² The TLOA increases the maximum sentence a tribal court may impose from one to three years and it increases the maximum fine from $5,000 to $15,000. It also stipulates, however, that if a tribal court chooses to sentence an Indian individual to more than one year imprisonment, that court must honor due process rights (as they are defined by the United States) by providing legal counsel to the Indian defendant and requiring that the judge presiding over the matter be licensed to practice law.³³

While this provision of the Act has been hailed for taking criminal activity in Indian communities more seriously, it has also provoked controversy for three primary reasons. First, some argue that the mandatory costs associated with increased sentencing authority might further drain already limited, and in some places non-existing, tribal resources.³⁴ Secondly, the sentencing maximums are “shockingly low”³⁵ in relation to the severity of the crimes they attempt to address, especially when considered in light of national sentencing averages which are 136 months for rape and 92 months for other sexual assaults.³⁶ Thirdly, the provision does nothing to alter tribal sentencing authority over non-Natives which, as I mentioned earlier, commit at least 86% of the reported cases of sexual assault against Native women. Thus, federal efforts to solely increase the consequences of Native-inflicted instances of crime seem extremely limited in scope. In this way, the TLOA appears to respond to recommendations made by Amnesty and Native advocates to end impunity for abusers without actually acknowledging that the majority of violent crimes committed against Native women continue to be perpetrated by individuals outside the scope of the TLOA.

Even more critical than its superficial attempt to hold abusers accountable, though is the way in which this provision and its focus on Native-perpetrated crime contributes to and constructs the perception that Native communities themselves are (internally and inherently) infested with deviancy, crime, and violence. Rather than halt violence against Native women, such representations of Native life further aggravate the issue. Luana Ross speaks to the extent that Native communities in Montana are stereotyped as inherently violent and criminal in her book Inventing the Savage: The Social Construction of Native American Criminality. Building on a Foucauldian understanding of criminality as socially constructed and discursively produced, Ross argues that the invention of “Native deviance” is part and parcel of the processes of colonization. Designating itself and its citizens as “normal” and “healthy” while designating the Native “other” as that which deviates from the norm and poisons the colonial body, the settler colonial regime justifies its biopolitical management of marginalized populations by equating “otherness,” or that which resists assimilation, with criminality.

Ross describes the process by which the criminalization of Natives peoples occurred as such: “Precontact Native criminal justice was primarily a system of restitution--a system of mediation between families, of compensation, of recuperation. But this system of justice was changed into a shadow of itself. Attempts were made to make Natives like white people, first by means of war and, when the gunsmoke cleared, by means of laws--Native people instead became `criminals.' Criminal meant to be other than Euro-American.”<sup>37</sup> Thus, when the “threat” of Native populations could not be disabled through assimilation, laws were enacted to criminalize Natives and subject them to other forms of social control - in this case - incarceration. She continues, “the stereotype of the `savage, inferior' Native was carefully developed, and Natives were seen and treated as deviant.”³⁸ It is this deviancy that continues to mark us as Native peoples today for “the product is a system that imposes on indigenous populations cradle-to-grave control designed to obliterate worldview, political independence, and economic control. To resist is to be criminal, risking the wrath of multiple state law enforcement agencies. In the Americas, this exploitation has been the backbone of a colonial relationship now hundreds of years old yet still vigorous.”³⁹

Ross's argument⁴⁰ illuminates the violence the TLOA itself commits against Native peoples. The legislation works hand in hand with pre-existing constructions of Native criminality in order to either further assimilate Native identity and existence “by means of law” or, alternatively, to further criminalize and incarcerate Native people. This results in the provisions that mandate Natives behave “like White people” in terms of creating technologies of justice that are carbon copies of the Euro-American model and that increase the criminal sentencing of Native perpetrators. The intent and effects of the assimilationist effort must not be downplayed. For as Patrick Wolfe so deftly argues in “Settler Colonialism and the Elimination of the Native,” as a continuous structure rather than an isolated historical event, settler colonialism employs a wide-range of “strategies of elimination that become favoured in particular historical circumstances.”⁴¹ Thus, assimilation, like incarceration, must be understood as yet another tactic in the arsenal of efforts to eliminate or eradicate that which is Native. In fact, “depending on the historical juncture, assimilation can be a more effective mode of elimination than conventional forms of killing, since it does not involve such a disruptive affront to the rule of law that is ideologically central to the cohesion of settler society.”⁴² Read in this light, the TLOA is not confused for an isolated attempt to reverse the gendered violence of colonization but instead is appreciated as merely one of the most recent tactics in the ongoing process of colonialism.

Furthermore, we must interrogate the implications of an assimilationist approach that demands Native peoples “voluntarily” adopt the very same colonialist apparatus of justice that discursively produces the identity of the Native criminal. In other words, if we recognize the settler state's investment in “punishment” as a productive rather than reductive act,⁴³ we begin to see how legislation such as the TLOA does more to perpetuate the production of criminal populations than it does to reduce so-called criminality. Thus, when Native peoples are coerced and/or forced to accept and employ such notions of justice, they find themselves working with a system that ever more frequently categorizes and criminalizes their populations in order to better regulate and manage them. That is, Native peoples become differentiated and individuated by the settler state and from the settler state in a process that marks them as delinquents necessitating surveillance while it normalizes the settler state, its actions, and its citizens. If Native peoples choose not to comply, choose not to think of themselves as inherently criminal, or even choose not to adopt the mandated provisions of the TLOA, they find themselves further criminalized (and, ironically, the recognition of their sovereignty is further limited) for being too Native. Either way, to be Native in the eyes of the settler state is to be “other than EuroAmerican” and comes with violent consequences.

The impact that the invention of the deviant, damaged, and criminal Native has on communities becomes particularly poignant when we pair it with the argument that Native peoples have also been marked by the settler state as innately violable. As I outlined in my introductory chapter, in Conquest: Sexual Violence and American Indian Genocide, Andrea Smith argues that sexual violence is utilized as a tool of patriarchy and colonialism in Native communities, and, in turn, is a “tool by which certain peoples become marked as inherently `rapable.' These peoples then are violated, not only through direct or sexual assault, but through a wide variety of state policies, ranging from environmental racism to sterilization abuse.”<sup>44</sup> When we redefine sexual violence in this way (as a tool of patriarchy and colonialism) we begin to see the ways in which individual acts of rape are but one manifestation of a “wide range of strategies designed not only to destroy peoples, but to destroy their sense of being a people.”<sup>45</sup> Thus, it becomes possible to ascertain the ways in which entire Native communities (and not solely Native women) have been constructed in the colonial imagination in ways that perpetuate their violability. Representation after representation of Native peoples portrays us as unkept, unwashed, swarming with filth, gluttonous, idolatrous, lascivious, shameful, etc. Smith forcefully extricates the impact of such conceptualizations of Nativeness: “Because Indian bodies are `dirty,' they are considered sexually violable and `rapable,' and the rape of bodies that are considered inherently impure or dirty simply does not count.”⁴⁶ This is evidenced by the horrific amount of sexual assault and mutilation that was and continues to be inflicted on Native peoples, all genders included. And it is also evidenced by the relative ease with which the settler state continues to violate Native communities, through regulation, management, surveillance, and the imposition of measures such as the TLOA.

The ideology that Native peoples are inherently rapable not only facilitates settler state violence but also leads to internalized hatred and self-destruction within Indian communities. As Native peoples come to loath their own bodies, which appear to lack integrity and worth when they are continuously violated, “we internalize Western meanings of difference and abject Otherness, viewing ourselves within and through the constructs that defined us as racially and culturally subhuman, deficient, and vile.”⁴⁷ Anti-violence activist Eileen Hudon speaks to this internalization when she recounts a conversation she once had with three Native men during which they all revealed that they had been sexually assaulted in boarding school. Although longtime friends, the men (who were in their fifties at the time of the conversation) were unaware of each other's experiences until the moment they spoke of them over coffee in Eileen's home. Eileen was aware that at least one of the men himself had also committed acts of violence against his partner and, thus, she initiated a dialogue around the roots of violent behavior: “I said violence is a learned behavior. I talked about boarding school and where it [the violence] came from. And he said, `You mean that, all the men in my family, my grandfather, my father, my uncles, and me, we're all violent.' He said, `You mean I wasn't born that way?' And I said, `Yes, it is a learned behavior' but you know, he, as a Native man, believed he was doomed to violence, had believed some portion of those stereotypes about Native peoples being savage and all that other crap. And he had believed he was born that way, that there was nothing he could do to change how he was violent or who he was.”⁴⁸ Eileen added, “To me, it's not only the racism and colonization that impact our communities institutionally, but also our own perceptions about ourselves.”⁴⁹

As Lisa Poupart reminds us, however, Native peoples “live in a sort of cultural double consciousness” where even as we have internalized racist and colonialist understandings of ourselves, we are also keenly aware of the myriad ways in which we have been and continue to be oppressed historically and in the contemporary moment. The conflict between these two ways of conceiving of ourselves often results in anguish, rage, grief, and pain which we sometimes express “internally toward ourselves and externally within our families and communities⁵⁰,” and, additionally, which intensifies the degree to which the dominant culture portrays us as “inherently violent, self-destructive, and dysfunctional.”⁵¹ The presence of such portrayals are not absent from the TLOA which emphasizes, among other things, that “domestic and sexual violence against American Indian and Alaska Native women has reached epidemic proportions” and “Indian tribes have faced significant increases in instances of domestic violence, burglary, assault, and child abuse as a direct result of increased methamphetamine use on Indian reservations.”⁵² And, as I mentioned earlier, similar portrayals saturate the legislative hearings and media reports that led up to the TLOA and describe Native communities as lawless, crime-ridden, and horrific. It is through this construction of violently criminal Indian spaces and Indian perpetrators that the Federal government justifies its move to implement more strident policing, sentencing, and control over Natives despite the already-established evidence that suggests a great number of said crimes are not committed by Indian peoples and do not originate in indigenous communities.

Thus, it is critical that we recognize the extent to which legislative measures like the TLOA transform collective social distress into individual pathologies in order to warrant the increased surveillance and regulation that eventually leads to more effective elimination of the Native. An acknowledgement of this sort allows us to more fully think through the potential consequences of a provision like the increased sentencing of Native perpetrators which further scapegoats and criminalizes Indian men for the crimes of the great white Father, immobilizes Indian communities by increasing the already over-representation of incarcerated Natives,⁵³ and permits Native women to continue to be preyed upon by the non-Indian offenders who have not been criminalized in similar ways and, thus, are not the primary focus of such law enforcement efforts.

The Tribal Law and Order Act and Identity Construction

The way in which the TLOA works to more securely fasten understandings of Native

identity to white supremacist and settler colonial articulations is not limited to an analysis of the Acts specific provisions alone. The way in which the existence of the Act itself engages in larger discussions regarding Native identity is also significant here. Perhaps non-coincidently and most-tellingly, the TLOA is not a stand-alone piece of legislation but is instead appended to the Indian Arts and Crafts Amendments Act of 2010 (IACAA). Co-authored by Senators Jon Kyl and John McCain, the IACAA was signed into law with very little attention, amendment, or debate. This Act amends the Indian Arts and Crafts Act of 1990 (IACA) to expand and clarify the authority of federal law enforcement to bring criminal and civil actions against offenders involved in the sale of misrepresented Indian-produced goods or products. Described as a “truthin-advertising law,”⁵⁴ the 1990 Act was passed to both respond to “growing sales in the billion dollar U.S. Indian arts and crafts market of products misrepresented or erroneously represented as produced by Indians,” and better carry out the aims of a 1935 Act of the same name whose stated purpose was to create an arts and crafts board to assist in the promotion of the “economic welfare of Indian tribes and the Indian wards of Government through the development of Indian arts and crafts and the expansion of the market for the products of Indian art and craftsmanship.”⁵⁵

The initial 1935 legislation succeeded in instituting the Indian Arts and Crafts Board, but because it limited penalties to a $500 fine and/or six months of imprisonment, it was considered inadequate as a meaningful deterrent to the fraudulent sale and marketing of imitation Indian arts and crafts. The Act of 1990 increased maximum penalties to $250,000 in fines and/or 5 years of imprisonment for individual violations and $1,000,000 in fines for business violations.⁵⁶ The severity of the consequences the federal government can administer to those who attempt to “play Indian” for the purposes of selling fraudulent Indian arts and crafts in comparison to the consequences tribal governments can administer to those who sexually violate Native women is baffling at best.

More likely, however, the prioritized concern with “protecting” Native artists, tribes, and their patrons from the fraudulent and sinister intent of those who would market “products as `Indian made' when the products are not, in fact, made by Indians as defined in the Act,”<sup>57</sup> speaks to the vested interest the United States has in defining and controlling Indian identity.<sup>58</sup> For example, in an essay titled “Indian U.S.A.,” Joanna Barker reads the 1990 IACA not as a measure to halt the appropriation and commodification of Native expression but as legislation “embedded within histories of U.S. federal and tribal identification or membership policies”<sup>59</sup> that make indigenous people “'governable' by roll or certificate or blood” and allows the United States “to reinvent its power to govern indigenous people as citizens `of a particular kind'--as those who can be enrolled, recognized, qualified, and eliminated.”⁶⁰

Such readings of the IACA legislation and its consequences lend a hand in analyzing the work of the TLOA.⁶¹ Perhaps the attachment of the TLOA to an IACA Amendment Act is not accidental? As numerous Native peoples have noted, the question that plagues Natives throughout their lifetimes and across their experiences is, put simply, who is an Indian? Various parties are interested in the outcome of this question and for varying reasons. The United States government, for one, is so highly invested in this matter that it has attempted to solidify the definition of Indianness in legal discourse, academic discourse, media representation, and beyond. As a matter of fact, the 1997 Final Report of the American Indian Policy Review Commission noted that over three hundred different definitions of Indian identity could be found within BIA documents alone.⁶² That so many attempts to secure Indian identity have been made by the United States might not be as telling, though, as a discussion of the Indian identity “controversies” that emerge as a result of such attempts.

In X-Marks: Native Signatures of Assent, Scott Lyons addresses this issue extensively and posits a critical question when he asks his readers to consider whose interests exclusive and regulatory definitions of Native identity, and their resulting crises, serve. For regardless of whether one utilizes blood quantum, tribal enrollment, language, cultural affiliation, or the everelusive “tradition” as the measuring stick of Indian identity, crises emerge and manifest in obsession with ethnic fraud, enrollment requirements, disenrollment, banishment, etc. And, yes, the “winners, losers, silent partners, and those who get to make the final call”⁶³ vary from Indian identity controversy to controversy, but the player that never waivers is colonialism - a colonialism that, “left Indian identity in tatters: fragmented, uncertain, endlessly questioned, and something people squabble about.”⁶⁴ To forget the extent to which Indian identity crises are a product of colonialism is, again, to obscure the ultimate effect of such controversies - the securement and enforcement of white supremacist and anti-Indian ideologies - in the process of focusing on the particular players of each event. These effects are not to be taken lightly, however, because even though they are “constructed, intersubjective, language-mediated things--these linguistic definitions of humanity that give meaning to an individual body or community of people--can lead to material results, among them rights, responsibilities, privileges, discriminations, stereotypes, citizenships, and the ways you might be treated by the police, the state, or teenage boys.”⁶⁵ In other words, Indian identities may be socially and historically constructed, and they may shift across time and space, but they still have social consequence - they help determine if, when, and/or to what degree one is considered Indian in the eyes of the state. Such consideration not only affects material realities such as economic livelihood by determining who is able to produce and sell Indian arts and crafts without criminal penalty but also plays a key role in determining to what degree an individual will be marked for incarceration, sexual assault, and all other methods of elimination.

To counter the extent to which Indian identity serves to mark particular individuals for policies and processes varying from assimilation to elimination, Lyons suggests that we move from thinking of Indians as “things” we can identify, quantify, and manage to conceiving of Indians as human beings who “do things.” He characterizes this shift “as a move from being to doing” that could be “a counterattack to the genocidal implications that are always inherent in the notion of Indian identity as timeless, stable, eternal, but probably in the minds of most people still `vanishing.' Being vanishes. Doing keeps on doing.”⁶⁶ I argue that the TLOA, like the IACAA it is attached to, conceptualizes Indians as “things” that are inherently criminal, violent, and/or, in the case of Native women, victims. This conceptualization perpetuates the disappearing of Indian peoples be it through incarceration, sexual violence, or death itself. Simultaneously, even as it imagines Native women as victims of violent Native men in Native spaces, it allows the actual violence against Native women to go unchecked as it refuses to acknowledge the complexities and diversities of Indian identity on the ground and in communities. In the identity-regulated, imaginary world where the measures of the TLOA might be useful, there is no discrepancy between who is and is not Indian, and what is and is not Indian country. Law enforcement does not hinge on blood quantum, tribal enrollment, or other markers of “Indianness.” Rather, the TLOA imagines a red and white landscape where Indians are the residents of reservations and either the perpetrators or victims of crimes committed by or against other Indian peoples while non-Indians live in off-rez spaces and simply step in to bring “law and order” to the relationships/locales of Indian peoples.

The Tribal Law and Order Act, Biopolitics, and Urban Indian Women

The discussion of the relationship between Indian identity and gendered violence becomes further problematized if we factor “the urban Indian experience” into the equation, particularly in relation to the TLOA. Again, despite the fact that at least 60% of American Indian and Alaska Native peoples live in urban areas,⁶⁷ there exists relatively little discussion of violence against Native women within urban communities in the United States. The perhaps over-rehearsed statistics regarding violence and Native women, as well as the varied responses to this violence, primarily focus on reservation or rural tribal communities.

The information that has been generated on this topic confirms that urban Indian women experience violence at rates similar to those in reservation and rural Indian communities and attempts to account for some of the specificities of violence in this context. For example, a study conducted from 2000 to 2003 among urban Indians living in the New York metropolitan area found that “the majority of women in the sample (65.5%) had experienced at least 1 form of interpersonal violence” and “41.0% of the women reported experiencing multiple victimization, defined as experiencing at least 2 types of the interpersonal violence explored in the study.”⁶⁸ Likewise, in the first-ever study to consider the reproductive health of urban Indians nationally, the Urban Indian Health Institute reports that their findings “confirm data gathered by multiple sources that have consistently shown higher rates of sexual violence among AI/AN women compared to their general population.”⁶⁹ This includes, but is not limited to, the institute's finding that urban Indian women experience non-voluntary first sexual intercourse at a rate more than twice that of whites.

In Sharing Our Stories of Survival: Native Women Surviving Violence, an entire chapter is devoted to issues facing urban Native women who have survived violence. Written by Rose Clark and Carrie Johnson, this chapter posits that urban Indian women, particularly those struggling with poverty and those who have interracial marriages or relationships, which is the case for many, “are among the highest at risk for violent criminal victimization.”⁷⁰ Yet, Clark and Johnson also reiterate that although the majority of Native peoples live in urban areas and are at a high-risk for violence, there is a significant absence of resources/services in urban areas for women who have experienced violence as well as a lack of data regarding the extent and prevalence of such violence.⁷¹ Unfortunately, however, this chapter of Sharing Our Stories of Survival, like the other scant resources that exist on this topic, generally presuppose that urban Native women are newcomers to urban areas, and, thus, extra vulnerable to violence as a result of being away from reservation communities and “increasingly isolated from their extended family or cultural group, which might otherwise serve as a protective factor.”⁷² Similarly, these women are described as isolated, lonely, invisible, and alienated individuals struggling with the challenges of navigating a “foreign” system of care as well as social problems such as poverty, unemployment, homelessness, and substance abuse.⁷³

Certainly, this might be the case for some urban Indian women some of the time. But we know that urban Indians have a wide range of experiences - there are those who have been urban Indians for generations as well as those who have recently arrived to urban areas, those who have a reservation to call “home” and those who are landless, as well as those whose land has metamorphosed to urban space right before their eyes. Why, then, such little and/or generalizing discussion of violence against urban Indian women? I suggest that the absence of substantial discussions, both inside and outside of the academy, is not simply an oversight but has to do directly with the ways in which gendered urban Native identity is constructed.

In Indians in Unexpected Places, Philip Deloria explores the relationship between nonIndian expectations of Indianness (or the “ideological frames that have explained and contained Indian actions”⁷⁴) and the lived experiences of Native peoples. In a chapter titled “Violence,” he specifically addresses expectations and ideological framings of Indian identity as they pertain to violence and “outbreak.” According to Deloria, “post Civil-War western reservations, with their incomplete containment of often-mobile Indian peoples, spurred Americans to name a new, rebellious brand of Indian warfare--the outbreak.”⁷⁵ This concept, as well as its siblings

“rebellion” and “uprising,” became so prevalent in early reservation management years because Indians suddenly found themselves forced into reservation spaces that from which the could break out. Furthermore, such descriptions of Native warfare “revealed a fear of Indian people escaping the spatial, economic, political, social, and military restrictions placed on them by the reservation regime⁷⁶” that attempted to end the nation-to-nation wars that characterized eighteenth and nineteenth century Indian and white relations. That is, rather than think of Native warfare as a sovereign act aimed to defend and retaliate against encroachment by another nation, concepts of outbreak and uprising portrayed Native warfare as rebellious acts of violence committed by colonial subjects resisting the settler state's desire to integrate them into the

American polity.

The effects of ideological constructions such as the outbreak are critical to the discussion at hand. Obviously, the development of reservations attempted to minimize and delegitimize acts that signaled the continuing survival of Native nations as sovereign entities. Reservations represented, among other things, a “colonial dream of fixity, control, visibility, productivity, and, most important, docility⁷⁷” that would, ideally, hasten the goal of assimilation and the elimination of the Native. To some degree, this dream was realized and Native peoples became more knowable than they ever had been before. Records, files, rolls, and a number of other disciplining technologies began to proliferate as Native peoples were surrounded by the surveillance mechanism of the reservation. These included tribal rolls, church records, allotment records, ration records, and agency reports that observed and documented every aspect of Native peoples lives from when they were born to what they ate, whom they married, where they resided, if and when they were baptized, whether or not they committed “infractions,” the degree to which they were educated, if and how much property they owned, when they died, etc. The results of such records better enabled the settler state to seek out and locate individuals in order to more effectively discipline and construct them as colonial subjects.

At the same time, however, the reservation regime more firmly restricted Native peoples from becoming a part of the American body politic. As Deloria reminds us, “The space within and around a reservation was contained and controlled in order to manage Indian people”⁷⁸ and, thus, fences were erected and passes were required of Natives wishing to leave the reservation in order to regulate the boundary between Native and white. The assimilationist thrust of the reservation system, then, Deloria argues, was more about similarity than sameness: “That is, the varied efforts to reshape Indian people so as to assimilate them had nothing to do with the sameness that might have characterized social or political equality. Rather they had everything to do with the practice of perfecting conquered people into similarity--ghost forms of the white conqueror, coexistent but not equal.”⁷⁹ It is this continuous assertion of separation between Native and non-Native that makes the concept of the outbreak so powerful. Native peoples who were distinct enough to be singled out, herded up, and forced onto reservations but also similar enough to be subjected to the disciplining institutions and technologies of the settler state were safe, non-threatening, docile Natives. Natives who resisted such ideological framings were perceived as rebellious and dangerous, a threat to the American body politic. Not only did they represent the incomplete subordination and pacification of Native peoples, but they also highlighted the vulnerability of the colonial regime.

I would argue that the use of the term outbreak to describe that which provokes colonial anxiety over the mobility of Indians (and, by extension, Indian identity) has powerful meaning even in the contemporary moment where, as I argued above, Native peoples in general continue to be constructed as degenerate, abnormal, and/or “sick,” while urban Indians, Native women, and “Other” Natives are even more so constructed as such.

Ann Stoler's examination of race, sexuality, and biopower in the Dutch East Indies is useful in thinking through the way in which the United States negotiates its production of urban Indians as deviants that threaten the wellbeing of the US state. For example, Stoler argues that colonial authority in the seventeenth and eighteenth centuries was, in part, secured through the so-called “illicit” sexual practices that Dutch men engaged in with colonial subjects. These unions frequently resulted in children and fostered familial and political connections between colonizer and colonized, but the very same mixed-blood children of these unions also spurred increased concern and policing over the boundaries between colonizer and colonized.⁸⁰ Culturally hybrid, mixed-blood subjects were viewed as potentially more threatening to the colonial order than “pure” Natives as they were figured as the “enemy within” -- those who, in Deloria's phrasing, were similar enough to the colonizer to make claims and demands of the colonizing state but who were still “other” than so-called pure European or pure Native. Mixedbloods were considered cultural hybridities in a schema wherein which “cultural hybridities were seen as subversive and subversion was contagious.”⁸¹

I want to make clear that I am not attempting to conflate urban Indian identity with mixed-bloodedness here, however, I do think it useful to consider Stoler's argument in regards to the expectations of urban Indians in the United States. The overwhelming tendency of the discourse surrounding urban Indian identity and/or experience has been to pathologize urban Indians and to represent them as “exiles without culture, stuck in liminal space between the traditional and the modern, problematically separated from an authentic ideal of Indian culture and identity”⁸² while simultaneously separated from the seemingly Euro-American culture of the city. As a result, cultural degeneracy and loss have come to symbolize those individuals neither Indian enough nor Euro-American enough. Stoler argues that while the discourse of blood did contribute to the rise in policing colonial boundaries in the Dutch East Indies, so too did a “national discourse in which a folk theory of contamination based on cultural contagions, not biological taintings, distinguished true members of the body politic from those who were not.”⁸³ The same can be argued in the urban Indian context where fear of biological mixing fuels an obsession with “blood” in a variety of contexts⁸⁴ while fear of cultural mixing results in endless debates about “ethnic frauds,” “paper Indians,” “new Indians,” and the like.⁸⁵

Such expectations about urban Indians are constructed in Native and non-Native communities alike; however, in focusing for the moment on settler colonial constructions of urban Indian identity, I urge us to explore fear of the “enemy within.” Such state-produced fear is precisely that which undergirds Foucault's articulation of biopolitical power which excludes and/or eliminates certain populations in order to ensure the protection of others. While Foucault rarely mentioned the colonial state in his works, we may certainly utilize his analysis in thinking of urban Indian identity. I would argue that urban Natives are portrayed as a threat to the U.S. body politic because their cultural hybridity, understood as subversion, challenges the settler colonial regime that relies on the elimination of the Native. Breaking free from that which has been constructed as “Indian Country” (in most cases, the reservation) urban Natives challenge the distinction between Native and non-Native that is central to the ongoing colonization of (clearly definable) Native populations.

Urban Indians are not alone in being imagined as extra-ordinary in their potential to pollute the otherwise healthy American body politic. Native women similarly challenge the “colonial order of things” because of their abilities to reproduce Native peoples, Native communities, and by extension, Native claims to land. Inez Hernandez-Avila argues that “it is because of a Native American woman's sex that she is hunted down and slaughtered, in fact, singled out, because she has the potential through childbirth to assure the continuation of the people.”⁸⁶ In the chapter “Better Dead Than Pregnant: The Colonization of Native Women's Reproductive Health” of Conquest, Smith echoes this sentiment and describes the biopolitical technologies that have been utilized in the regulation of Native women. These include, but are not limited to, sexualized violence, sterilization abuse, the criminalization of pregnancy, contraceptive abuse, and abortion policies. She concludes, “As the ability of Native women to reproduce the next generations of Native people continues to stand in the way of government and corporate takeovers of Indian land, Native women become seen as little more than pollutants which may threaten the well-being of the colonial body.”⁸⁷