UPDATED, April 12 at 11:28 a.m.: John Ridge's role in the Worcester v. Georgia case has been corrected.
The Institute of American Indian Arts in Santa Fe is the last “arty” stop for Sliver of a Full Moon, a play by Mary Kathryn Nagle that dramatizes the legislative struggle to enact the Violence Against Women Act of 2013. At least for a while.
It's soon bound for law schools and other venues where it can influence present and future law and policymakers: on April 22 the play will be read at NYU Law School, on May 10 at Stanford Law School, and in October at the Alaska Federation of Natives. The playwright is unabashed about her reform project. “The play is a tool to change the law. Fear, ignorance and prejudice inspire non-Indians to question 'tribal jurisdiction,’” she explained. “What I hope to do with the play is to move the ball with respect to public ignorance, especially among law students and faculty. People don't know the status quo and when they find out, they're like, WHAT!?”
On March 23 before Sliver's presentation to a packed auditorium, IAIA Performing Arts Department Chairman Daniel Banks introduced Nagle as “a full-time attorney, a full-time playwright, a full-time activist, and one of the leading lights in Native American performing arts.” She is also a descendant of 19th-century Cherokee attorney John Ridge born Skah-tle-loh-skee (Yellow Bird) (c. 1802 – June 22, 1839), who played a significant role in the 1839 removal of the Cherokee people from their homelands. But before those tragic events he drafted the briefs that led to William Wirt, former U.S. Attorney General, arguing Worcester v. Georgia before the Supreme Court, which in 1832 settled matters of tribal jurisdiction favorably to the tribes. Nagle's passion for this particular flavor of jurisprudence is a fully inherited taste. There are important social justice matters to be reconciled, but also deeply personal matters of familial honor.
The stop in Alaska is especially crucial because, as those familiar with Sliver's subject matter already know, VAWA 2013 carved out Alaska. Native Alaskan women did not receive the few legal protections (“the sliver” referenced in the play's title) that VAWA 2013 restored to Native women in the other 49 states: namely the ability of tribal courts to prosecute non-Indian abusers for crimes of domestic violence, dating violence and stalking (but, absurdly, not rape and murder).
The play makes it clear that the carve out flies in the face of reason. The characters grapple with the illogic and pain of barbaric laws that flout commonly understood conceptions of justice. The character of Nettie, impressively read in Santa Fe by IAIA student Ozawa Bineshi Albert, gives voice to the hell of violence endured by Alaskan Native women.
Nettie: Everyone keeps saying, sorry Nettie, we can’t include the tribes in Alaska in this bill.
Sorry Nettie, we’ll protect Alaska Native women next time. Sorry Nettie, Alaska is “different.”
What makes us different?
Alaska's difference, exclusion from the definition of Indian country and VAWA 2013, was justified by a 1998 Supreme Court case known as Venetie, which Sliver doesn't fully explain but explains enough that you want to find out more. Venetie references a tax case in which it was decided that the Native Village of Venetie was not part of a “Native American reservation,” and therefore could not collect taxes even for businesses on its own lands. After Venetie Alaskan tribes had to leave tax collection to the state.
Nagle's play is polite about the matter, seeming to accept U.S. Senator Lisa Murkowski's excuse of accidental “drafting error” as the ostensible reason for the carve out. But the play repeats the words “drafting error” so many times, one can't help but begin to wonder about that. Was it a drafting error, or was it rather that extending VAWA 2013 to Alaskan Native women could be construed as Alaska being part of Indian country again? Which could make murky the strict line with respect to tax authority that the court had established in Venetie, and that Alaska presumably wishes to uphold?
Between the lines a scene only inferred by the script begins to write itself: In a murky back room deal, the lives of Native women were weighed in the balance, and a cost benefit analysis, a faulty one constitutionally incapable of ever truly valuing them, doomed them.
The statistics are out there for Alaskan Natives and the numbers are shocking: highest rate of sexual assault in the US, a Native woman is sexually assaulted every 18 hours, one in two Alaska Native women experience sexual or physical assault in their lifetimes. And on average 67 percent of their perpetrators are non-Native, so the tribes have no jurisdiction.
Dennis: I was Tribal Police, before I went to law school.
Diane, Lisa, and Billie Jo enter.
Dennis: I’d get a call and before I could help her, I’d have to ask, where is she?
Diane: Is she on land that is tribal trust?
Billie Jo: Or land that’s been sold.
Dennis: She could be on fee land.
Lisa: And you can’t just ask where is she.
Billie Jo: You have to ask who is he?
Diane: Is he Indian?
Lisa: Is he enrolled?
Dennis: ‘Cause if he’s not-
Diane: Tribal police don’t have jurisdiction.
Dennis: Makes you wanna never answer the phone.
As horrific as this sounds, this open season on Native women was the case, not solely in Alaska, but throughout the U.S. from 1978 until the passage of VAWA 2013. Which perhaps explains why this imperfect and insufficient Act is so celebrated; it was an advance, however meager over the past four decades. Jurisdiction had been stripped from tribes in another U.S. Supreme Court case named Oliphant v. Suquamish Indian Tribe, in which the court voted 6-2 that tribal courts had no jurisdiction over non-Indians. The characters of the play reveal the true horror of this decision.
Diane: After Oliphant-
Billie Jo: He began to realize.
Nettie: After Oliphant-
Diane: He figured it out.
Lisa: After Oliphant-
Diane: He knew.
Billie Jo: It didn’t matter if I had bruises.
Nettie: Or cuts.
Lisa: Or bleeding.
Billie Jo: Or a broken bone.
Lisa, Nettie, and Billie Jo: Because of Oliphant…
Diane: He could kill me and it wouldn’t matter.
Bringing this disgraceful chapter in American jurisprudence to light and to an end is the primary motivation for touring Sliver of a Full Moon. Since the law is reauthorized by congress every five years Nagle isn't wasting a moment's time between now and 2018. The conversations generated by Sliver could positively contribute to a political environment in which the gains of VAWA 2013, (already under attack), are expanded for all and extended to Native women in Alaska.
“The idea is to keep it going,” Nagle declared. “My life's goal is to restore the principles of Worcester v. Georgia. And that means helping people to unpack their sometimes prejudicial beliefs about tribal jurisdiction.”