Tipping the Scales

By on June 13, 2018

While challenging imbalances of representation in law and politics, a wave of indigenous women are rising into power
within their communities

Chief Judge Terri Smith

JACKSON HOLE, WY – Even though Terri Smith spent the bulk of her teens and early 20s away from her home on the Wind River Reservation, she knew she would return.
Now chief judge for the Wind River Tribal Court, the Northern Arapaho woman said she made it a priority to connect with her relatives and culture while living in Salt Lake City and attending law school at the University of Utah. During that time, she returned to Wyoming every summer to be with her family, especially her grandmother.

“She always told me, ‘Don’t forget who you are and where you come from,’” Smith said. “So it was always my goal to get educated and come home.”

For Smith, the journey has not been easy. Six weeks before she graduated with her bachelor’s, her boyfriend, also Native, died.

And once she started law school, death seemed to follow her everywhere. Her aunt died a few months after classes began. Months later, her only brother died. Then a cousin. Then another cousin.

“For three years straight, every four months, a close family member died—people who were extremely close to me—and I almost quit,” Smith said. “Just to get where I am, I know a lot of people would have given up … but it just gave me more reason that I had to finish, for these people that passed, to make them proud.”

Smith is among a wave of Native American women stepping into careers in law and politics to represent their communities on a larger scale. Some are motivated to change outdated and stereotypical portrayals of Native people. Others, meanwhile, want better resources for their communities, areas burdened by poverty and substance abuse.

Congressional candidate Deb Haaland

This year at least 40 Native women are running for office, including Deb Haaland, an enrolled member of the Laguna Pueblo. She won the Democratic nomination for New Mexico’s 1st Congressional District on June 5. If elected, Haaland will be the first Native congresswoman in U.S. history. 

Local Shifts

The influx of Native women entering the professional world isn’t limited to high-profile political races. Many more, like Smith, are taking up leadership positions within their communities. In many tribes, men traditionally hold more visible leadership roles, but there is often a matriarchal structure on the family level. Men might be the ones in charge of ceremonies and public gatherings, but women make sure their families and relatives are taken care of on a daily basis.

During Smith’s childhood, “it was always the women who were in charge and making sure things were getting done.”

Tackling issues that affect Native women’s communities could lead to resolving problems that directly affect them, too.

Many reservations have high rates of crime, addiction and poverty, and Native women typically face higher rates of violence and sexual assault than other women. A study funded by the National Institute of Justice found that more than 84 percent of Native women have experienced acts of violence in their lifetimes.

Native American women in Wyoming are affected at higher rates as well. According to a 2008 National Criminal Justice Resource Service report, the homicide rate for Native American women in Fremont County (home of the Wind River Reservation) was roughly 20 percent higher than the national homicide rate, and almost quadruple the state rate. Homicide rates in general have fallen since then, but there is no data specifying if that decrease has affected Native women.

Filling in the Gaps

Wyoming State Sen. Affie Ellis–R, Cheyenne, grew up in similar circumstances to those of Smith’s, with both her Navajo parents leaving their homes and raising their children in Jackson.

“My story isn’t terribly uncommon,” Ellis said. “As part of that generation that didn’t have the opportunity to grow up on the reservation, certainly a good part of my life has been trying to understand and fill in some gaps that have been absent from that kind of exposure as a child.”  

Ellis said her motivation to study political science at the University of Wyoming and eventually run for office stemmed from an urge to accurately represent Native communities, ways of life and sovereign governing systems.

“I think there are some grey spots about how tribes are utilizing the very Western principles of due process and how they run the courts by incorporating very traditional elements of restorative justice,” she said.

Ellis is part of the Indian Law & Order Commission, a federal commission partnering with the University of California Los Angeles’s American Indian Studies Center to gather in-depth data about crime and safety in Indian Country. It gives recommendations on how to make Indian Country safer, and was formed under a mandate in the Tribal Law and Order Act (TLOA) of 2010.

That law aims to give more authority to tribal courts and clarify the confusing jurisdictional maze involving reservation crimes.

For example, outside of reservations, jurisdiction is determined by municipal, county or state boundaries. In Indian Country, though, jurisdiction hinges on the severity of the crime. Tribes might fund and staff their own police departments, but their authority is limited to misdemeanors and tribal ordinances.

The Bureau of Indian Affairs (BIA) provides a police force for tribes that don’t maintain their own, and certain states allow municipal and county law enforcement to police reservations. Felonies committed on reservations are investigated by either the BIA or FBI, and tribes have no legal authority to prosecute non-Native offenders.

“Every time a non-Native commits a crime against a Native person, the federal government has restrictions,” Ellis said. Misconceptions and stereotypes about tribal governments and courts perpetuate the idea that Native Americans don’t have effective criminal justice systems, she added.

Ellis said there is still a lot of work to be done to smooth out the relationships between federal and state governments and tribes. But TLOA “was a very positive step forward.” It recognized that many tribal government and court systems have sophisticated judicial processes and that tribes are capable of handling those kind of cases, she said.

After Smith completed her schooling and returned to Wind River, she was hired at a firm that’s been representing the Northern Arapaho for more than 25 years. She practiced there for five years before being appointed judge for the Northern Arapaho tribe.

“I felt like I was doing exactly what I wanted to do,” she said.

She met Eastern Shoshone business councilman Leslie Shakespeare, who is now her partner. Shakespeare was formerly a BIA officer and lost his sister to domestic violence. He said his experiences in law enforcement and the judicial system have pushed him to introduce policies that will make a difference for tribal members. “As a law enforcement officer, you’d like to arrest your way out of the problem but that never works in the long-term,” he said.

Inside the Intricacies of Native Courts

Wyoming State Senator Affie Ellis of Cheyenne

Wind River is in a unique position since it is shared by both the Eastern Shoshone and Northern Arapaho, each with their own business councils and government operations.

“There are two completely different tribes, two different languages, two different enrollments, but we got put on the same land and we shared,” Smith said. The two business councils come together as a joint council to discuss matters affecting the reservation as a whole and since 1987 have had a joint court system.

But in 2015, a rift formed between councils and the joint court was dissolved. The Eastern Shoshone tribe asked the BIA to set up a Code of Federal Regulations court while the Northern Arapaho formed their own tribal court.

This made prosecuting crimes even more difficult.

Shakespeare said the splintered judicial system added another layer of jurisdictional nightmare “other than what already exists.”

The offender’s tribe determined where they would go to court, but since many families on the reservation have blended heritage, sometimes people didn’t know where to go.

Smith was appointed as a judge for the Northern Arapaho court during the split. “It was such a volatile time,” she said. “It was very confusing … even the police were confused.”

A shift happened in November 2017, when the councils came together under a new memorandum reforming the joint court, now called the Wind River Intertribal Court. Smith was appointed chief judge of the new court which opened in January.

“Now we’re back in business with both tribes,” she said. “We’re all intermarried or all interrelated some way or another, and now our court system reflects that and we serve everyone on the reservation.”

One of the new court’s main goals is to implement the Violence Against Women Act (VAWA). When reauthorized in 2013, it gave federally recognized tribes a historic power they’d never had before: to prosecute non-Native perpetrators in domestic violence cases.

The 1974 case Oliphant v. Suquamish Indian Tribe ruled that tribes cannot prosecute non-Natives, even if the crime was committed against a Native victim on Native land.

This is particularly relevant for reservations like Wind River that have towns close to their borders where non-Native offenders can elude authorities. “What we have is this influx of non-Natives who often live on the reservation or have relationships with individuals who are part of the tribes,” Shakespeare said. “And just like any other area, they are susceptible to domestic violence and things of that nature.”

The inability to prosecute non-Native offenders, he said, forms inconsistencies in how issues get resolved, especially if the crime doesn’t involve a serious injury or a felony to get it pushed up the ladder to the feds. “You’re at that level where if there’s a non-Native doing this crime on the reservation against a Native victim, often times it creates a gap of well, ‘who’s going to prosecute it?’” he said. “And then you have multiple jurisdictions having to do multiple investigations, and often times that’s not coordinated as well as it should be.”

With the new VAWA privileges comes more regulation and clerical work. The law requires tribes to provide counsel to defendants, both Native and non-Native, in the form of an attorney public defender. There must also be an attorney prosecutor for all VAWA cases and an attorney judge.

During the hiring process for chief judge, the Business Council received applications all from Native women, including Smith.

Smith is the only law-trained judge on the Wind River bench and so must preside over all domestic violence cases on the reservation. She hasn’t yet handled a case involving a non-Native defendant. But when that does happen, Shakespeare said they will be prepared. Wind River, after all, is one of very few tribal communities to implement VAWA and its border proximity to towns makes it likely that a case will arise.

With her education, Smith feels a responsibility to serve her community and hold people accountable for their actions. “We always have had issues with domestic violence,” she said. It is an issue many tribes are dealing with inside their own communities and from outsiders.

More than half of Native women will experience violence from a partner or spouse in their lifetime, according to a 2010 study by the National Institute of Justice. Today about 57 percent of rape and sexual assault offenders against Native women are non-Native, and 71 percent are intimate partners or other known acquaintances, according to a 2016 report by the Bureau of Justice Statistics.

Smith said Wind River gets a bad rap because of its high crime rates, even more so since the area was thrust into the spotlight with the release of last year’s thriller Wind River, in which a U.S. Fish & Wildlife tracker teams up with an FBI agent to solve the murder of an Arapaho woman found on the reservation. But, Smith said, the reservation’s realities are far from the horror headlines the media portrays. She said that public intoxication, disorderly conduct and driving under the influence are the most common offenses, and that the reservation has problems with alcohol.

“When we first opened in January, we were seeing like five DUIs a week,” Smith said. Since she became chief judge, the most serious cases she’s seen involved a vehicular homicide and a shooting, both of which were alcohol related. “Some of the stuff that got told in the media did happen. But I dont think it’s something that happens every month.”

Still, “it does happen.”

Maternal Perspective

It’s Smith’s hope to prevent Wind River community members from ending up in the judicial system in the first place. To do that, she said, targeting the youth is the best way to set them up for success. Anti-drug and alcohol campaigns Smith saw in high school stuck with her. “I think our only hope is getting to the youth,” she said. “Just talking with them about it … I think a lot of kids see personally in their own lives how it’s affecting them.”

Smith is raising her 3-year-old son on Wind River. She wants to put him in the language immersion school and pass down cultural traditions.

This is what “makes them feel a part of this bigger circle, that it’s not just themselves and their family, we’re a part of this community,” she said. “It’s our responsibility. Our ancestors sacrificed so much for us to be here.” Kids who grow up with this understanding have more “confidence in themselves and have bigger expectations of themselves.”

Wind River Intertribal Court clerk Tonya Dewey is a single mother also raising her son on the reservation. “It’s difficult for any child growing up on a reservation,” she said.

Dewey pointed to high substance abuse rates and the fact that many tribal youth see a lot of deaths of friends and family members starting from a young age.

Still, she has remained optimistic in the face of adversity.

When she had her son, Dewey had to temporarily drop out of college. She was able to re-enroll, obtaining an associate’s degree in criminal justice and is now completing her bachelor’s while working full-time as a clerk. She was one of many the court took on during its VAWA hiring spree.

“I was so excited when I saw the court was hiring,” she said. “I did not want to miss this opportunity because the whole basis of my schooling … I just dedicated the last 10 years of my life to studying criminal justice.”

Law school is the next step for Dewey, but she’s concerned about balancing her education with raising her son. “Just the thought of it makes me nervous, being a single parent,” she said.

Other Native women she’s met in similar situations are inspiring. At her previous job, she had a colleague who was a former Sioux attorney general and had two children while attending law school. “I thought if this other Native woman could have two kids in law school, maybe I’d be OK with myself and my child.”

Dewey grew up in a traditional Northern Arapaho household where men typically had larger leadership responsibilities. But, she said, women know how to run things behind the scenes and are familiar with how to get things done. “It’s good to see Native American women advance and step up and take on these leadership roles,” she said. “Most of us are mothers and we take on a different point of view because we are moms. But we can also be leaders and show other Native American women that we can lead as well, along with men.”

Meanwhile, Smith, at 32, sees the many challenges of being in a profession that has largely been dominated by men. “I am younger than most people in this position, so I feel like I am looked at as a little less just because of my age and because I am female,” she said. “So I have to work a little harder to prove that I can do these things.”

She encourages any young woman considering a path similar to hers to keep moving forward no matter what happens. “Just don’t give up. I know we deal with a lot of trauma … I just want Native girls to know that they’re not alone,” she said. “I know things get really, really bad in your personal lives and family lives. Just don’t give up because it’s so worth it in the end.”

With a historic number of Native women running for office, Ellis believes that getting more women in positions of power has been a long time coming. “I think there is certainly a momentum and an interest among Native women to be involved,” she said. “I think this issue has been growing for quite some time and rightfully so … I feel very fortunate that I’m able to use my skills to make a positive difference.”

For Smith, that positive difference is building the Wind River Intertribal Court into a respected judicial system that holds people accountable, and one that also is a hub of community support. She is committed to creating “a court system that serves our people well.”

“I have to make this a safer place not only for my son but for all residents of the reservation,” she said. “I want to give back to my people, like my grandma told me to.” 

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