Berger on Indian Women and the Law

Bethany Berger, University of Connecticut School of Law, has posted an article from her backlist, After Pocahontas: Indian Women and the Law: 1830-1934, which appeared in the American Indian Law Review 21 (1997): 1-62.  Here is the abstract:

The story of Pocahontas, simultaneously celebrated and contained, presents the favored path for Native American women in the newer legal culture: absorption into the Euro-American race and ultimate disappearance of the non-European element. The alternative path was reserved for women whose assimilation did not reach this level of absorption and disappearance but retained their allegiance to both the Indian and white society. Federal and state legislatures and courts marginalized such women, denied them the treaty rights accorded their male companions, and denied them stable marriages, rights of descent, and the power within the family that they had had within Indian culture. As white people and white values encroached ever further into formerly untouched Indian communities, and as the standards for acceptable assimilation grew higher, this second category came to include virtually all Indian women.

With few exceptions, no one has studied the ways in which the role of Indian women - as property owners, as wives, as heads of families, as members of their communities - was defined by American law throughout (and even before) the history of the United States. This article attempts to begin to fill this gap. Starting from the federal and state case law of the century preceding the Indian New Deal of 1934, it examines the ways judges and legislators perceived and treated Indian women in the century preceding this watershed in federal Indian law. It concludes with the ways tribes themselves forced Indian women from tribal land or otherwise diminished their power, and the extent to which nontribal policies may have influenced those actions.