Vol. 14 No. 8 (August 2004), pp.627-629
WOMEN’S RIGHTS IN NATIVE NORTH AMERICA: LEGAL MOBILIZATION IN THE US AND CANADA, by Judith Aks. New York: LFB Scholarly Publishing. 242pp. Hardcover. $65.00. ISBN: 1-59332-012-4.
Reviewed by: Scott A. Comparato , Assistant Professor, Department of Political Science, Southern Illinois University, Carbondale. Email: firstname.lastname@example.org.
In 1978, the Supreme Court ruled in SANTA CLARA PUEBLO v. MARTINEZ that Indian tribes enjoyed immunity from suits, and that the Court lacked jurisdiction. The case was brought by Julia Martinez, a member of the Santa Clara tribe, who sought to obtain official membership in the tribe for her children. They had been denied membership because their father was a member of the Navajo tribe, and Martinez argued that the exclusion of the children amounted to a denial of equal protection. Following the Court’s decision in MARTINEZ, there was no response from within the Santa Clara tribe, or pressure from outside the tribe to change the policy.
Judith Aks argues, in Womens’ rights in Native North America: Legal Mobilization in the US and Canada, that this lack of legal mobilization in the United States stands in stark contrast to the history of rights for indigenous women in Canada. Provisions of Canada’s 1951 Indian Act denied women who married a non-Indian the right to register as an Indian. Unlike the situation in the United States, when the Canadian Supreme Court upheld this section of the Act, it served to catalyze opposition to the Act, resulting in changes that allowed women who married outside of their band the right to claim Indian status.
Aks takes a novel approach in studying why the situations confronting Indigenous women in both countries diverged so significantly. Drawing on conceptions of power, she focuses on how “competing strands of power, or the intersection of racism and sexism, affect indigenous women’s legal mobilization . . . indigenous women, like most women of color, experience their intersectional identity as a kind of double bind: Often their race and gender interact in complex ways, sometimes causing remedies for one structure of power to reinforce the dominating effects of the other. . . the cases I discuss exemplify how legal mobilization might simultaneously reinforce domination and plant the seeds for indigenous women’s future resistance” (p.2).
As she states, indigenous women are confronted with a serious problem, with their intersectional identities as indigenous women complicating their attempts to overcome discrimination. “Gender and race-based domination and their corresponding remedies are both part of the ‘power’ that figures prominently in the everyday lives of indigenous women. . . resistance can work to challenge existing dominant norms, but it can also further entrench the very forces that it aims to change” (p.6). In order to overcome some of this conflict, groups often make use of legal tactics. Accordingly, “[o]nce rights are [*628] viewed as one of many discourses, they can serve as a tool of empowerment and innovation” (p.23).
In analyzing the legal tactics of indigenous women in the US and Canada, Aks uses discursive frames, allowing her to assign multiple meanings to the various legal norms that both help and hinder their efforts. She identifies six relevant frames to explain the use of the legal system by indigenous women: 1) individual civil rights, 2) sovereignty rights, 3) membership standards, 4) the construction of tradition, 5) jurisdiction and the separation of governmental powers, and 6) economic and material forces. Using these frames helps to understand how the US and Canadian experiences compare, looking at specific court cases in both countries.
In the remainder of the book, Aks uses these frames to analyze MARTINEZ and three cases in Canada. Martinez argued for a different level of scrutiny for her claim than would apply in a sex-discrimination case involving a non-indigenous woman, while the tribe asserted that the proper resolution would be an internal strengthening of individual rights. The sovereignty rights of the tribe won out over Martinez’s individual rights claims and in the process foreclosed the possibility of a reevaluation of the rights of indigenous women in the US.
The Canadian situation evolved quite differently and largely in favor of indigenous women. For them, making use of the legal system was a success, employing effective legal arguments resulting in increased rights. Much like MARTINEZ, the cases brought by indigenous women in the Canadian courts emphasized individual rights claims. In an interesting difference to the American case, the indigenous women in Canada fought for their rights in the courts, but did not want to necessarily be recognized as Canadian citizens. “While they fought for their individual benefits, they did so because they felt that their access would foster indigenous cultural survival” (p.163). The Canadian bands also framed their arguments in ways that differed from the American example. While Santa Clara argued for tribal sovereignty, the Canadian bands actually wanted federal protection rather than sovereignty, essentially asking for federal endorsement of their practices.
Comparing the results of these legal battles in both countries, Aks finds that legal efforts had serious implications for indigenous women, though not necessarily all positive. The material impact on indigenous women was certainly more negative in the American case, as tribes were allowed to continue their policies of excluding women. In Canada, numerous women won readmission to their tribes, but the economic burden on them increased as the bands lost resources.
The ideological impact on indigenous women is also noteworthy. While American indigenous women were not better off in a legal sense, their legal status and the relationship between tribes and the federal government were more clearly defined than in Canada. The MARTINEZ Court deferred to tribal sovereignty but also supported the role of Congress in overseeing Indian affairs.
In closing, Aks suggests that the assertion of rights is a complex and [*629] difficult process, further complicated by the intersections of power of indigenous women in the US and Canada. As she states, “Intersectionality uncovers the simultaneity of domination and resistance better than a study that focuses on one strand of power (such as race or gender)” (p.199). I am inclined to agree with the author’s assessment. Aside from the contribution that this book makes to our understanding of the legal struggles of indigenous women in the US and Canada, it offers a novel and informative way to understand the complex nature of legal arguments. The theoretical development using frames allows the author to disassemble what is, as she readily admits, an intricate and often confusing amalgam of arguments. By breaking down the issues into their constituent parts, we gain a greater understanding of the goals of, and conflicts facing indigenous women in both countries.
SANTA CLARA PUEBLO v. MARTINEZ, 436 US 49 (1978).
Copyright 2004 by the author, Scott A. Comparato.