After Pocahontas: Indian Women and the Law, 1830 to 1934

American Indian Law Review Volume 21 Number 1 1-1-1997 After Pocahontas: Indian Women and the Law, 1830 to 1934 Bethany Ruth Berger University of Connecticut School of Law Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indigenous, Indian, and Aboriginal Law Commons Recommended Citation Bethany R. Berger, After Pocahontas: Indian Women and the Law, 1830 to 1934, 21 AM. INDIAN L. REV. 1 (1997), https://digitalcommons.law.ou.edu/ailr/vol21/iss1/2 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . AFTER POCAHONTAS: INDIAN WOMEN AND THE LAW, 1830 TO 1934 Bethany Ruth Berger* Table of Contents Introduction . ..................................... 2 The Nineteenth Century and Indian Women: Federal Indian Policy 6 and the Cult of True Womanhood ....................... Federal and State Governments and Indian Women: As ThemI. 12 selves, as Mothers, and as Wives ...................... A. The Beginning: Ladiga's Heirs and Indian Women in Their 12 Own Right ...................................... B. Indian Women as Wives and Mothers: Intermarriage and 22 Beyond . ........................................ 23 1. A Not So Brief Note on Intermarriage ................. 28 2. Indian Women as Wives .......................... 28 a) Federal Cases: Status of the Non-Indian Husband ........ 34 b) States: Status of the Indian Wife .................. 44 3. Indian Women as Mothers ......................... IV. Tribal Treatment of Indian Women - The Influence of Non-Indian 50 Law .......................................... 60 V. Conclusion: Beyond Pocahontas ....................... I. II. Let therefore this my well advised protestation... to condemn me herein, if my chiefest intent and purpose be not, to strive with all my power of body and minde, in the undertaking of so mighty a matter, no way led.., with the unbridled desire of carnall affection: but for the good of this plantation,for the honour of our countrie,for the glor6.of God,for my owne salvation,andfor the converting to the true knowledge of God and Jesus Christ,an unbelieving creature,namely Pokahuntas.' *Youth Law Project Director, DNA-People's Legal Services, Window Rock, Arizona. J.D., 1996, Yale Law School. The author would like to thank Robert W. Gordon, Ulrich Haltern, Gail Johnson, and Martin Berger for comments and suggestions, and Steven C.Emery and Steve Gunn for the opportunity to work for the Cheyenne River Sioux Tribe. 1. John Rolfe, Letter to Sir Thomas Dale (Apr. 1614), in THE INDIAN AND THE WHITE MAN 22 (Wilcomb E. Washburn ed., 1964) (also available in RALPH HAMOR, A TRUE DISCOURSE OF THE PRESENT ESTATE OF VIRGINIA (London 1615)). Published by University of Oklahoma College of Law Digital Commons, 1997 AMERICAN INDIAN LAW REVIEW [Vol. 21 Walt Disney did nothing new in celebrating Pocahontas; she has long been the most famous Indian in non-Indian American culture. While the movie makers congratulate themselves on their selection of a nonwhite heroine, however, Pocahontas owes her fame to the fact that she married a white man, took a white name, and converted to the white man's religion - in effect, she became white. Any remaining threat her presence might have presented to the white European culture was contained by her early death from a Europeanderived disease. Pocahontas's "whiteness" was not only cultural but legal. As the Supreme Court pointed out in Loving v. Virginia,2 her descendants (as long as they didn't dilute John Rolfe's blood by marrying outside the white race) were legally white under Virginia law.3 L Introduction 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.4 Indeed, in Felix Cohen's 2. 388 U.S. 1, 5 n.4 (1967) (holding law that voided marriage between a white person and "colored person" unlawful). 3. VA. CODE ANN. § 20-54 (1960 replacement vol.) ("[P]ersons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed to be white persons."). This exception was designed to recognize "as an integral and honored part of the white race the descendants of John Rolfe and Pocahontas." Walter Wadlington, The Loving Case: Virginia's Anti-Miscegenation Statute in Historical Perspective, 52 VA. L. REv. 1189, 1202, n.93 (1966). 4. The great exception to this has been the numerous articles generated by Santa Clara Pueblo v. Martinez. 436 U.S. 49, 72 (1978) (holding that the Indian Civil Rights Act could not be used to challenge a tribal law that excluded children of Santa Claran women - not men who married outside the tribe). One of the best of these articles is Judith Resnik, Dependent Sovereigns: Indian Tribes, States and the FederalCourts, 56 U. CH. L. REv. 671 (1989). The legal history discussed in the article, however, is focused almost exclusively on the five years https://digitalcommons.law.ou.edu/ailr/vol21/iss1/2 No. 1] INDIAN WOMEN AND THE LAW 3 definitive treatise, the Handbook of Federal Indian Law, neither "women," "wives," nor "mothers" warrants even an index entry.5 Francis Prucha's equally authoritative work on federal Indian policy similarly excludes Native American women from sustained consideration. 6 This article attempts to begin to fill this gap. Starting from the federal and state7 case law of the century preceding the Indian New Deal of 1934, I examine the ways judges and legislators perceived and treated Indian women in the century preceding this watershed in federal Indian law. This is not an attempt to uncover what Indian tribes "really" thought of Indian women or how women were treated by the Native American legal tra (...truncated)