Courtesy of Amber Crotty
When indigenous women are harassed at work, gaps in tribal law can leave them in a precarious grey area. Navajo Nation Council member Amber Crotty stunned her colleagues in a 2016 speech that spotlighted sexual harassment on the reservation and became a watershed moment.
When Amber Kanazbah Crotty first went to work for the Navajo Nation, she was full of hope. She was passionate about education and health care, and wanted to help break the cycle of poverty that bound many Navajo families. Crotty hails from a long line of feisty women who, she says, “come from the land,” a reference to the arid ocher soil of the Navajo Nation and another way of saying: Her people are tough. Crotty studied American Indian law and history at the University of California, Los Angeles; she returned to Navajo and, with two young daughters at home, went to work as a legislative aide to a delegate in the Navajo Nation Council. Then, on a work trip several years ago, something happened that left her overwhelmed with doubt.
It was evening. Crotty and two other legislative aides were in a casino, encouraging their superior, a Navajo councilman, to stop drinking and return to his room so that he’d be prepared for his flight the next morning. Laughing, the councilman lunged at Crotty, stuck his hand up her shirt, and groped her breasts. Shaken, Crotty left the casino floor immediately.
Two of Crotty’s former co-workers say that she talked to them about the incident shortly after it occurred. But when she reported the incident to a supervisor, Crotty says, he shrugged it off and told her that it was beyond his pay grade. This was devastating, but, as other staffers who worked for the council at the time confirmed, not unusual. Another former aide said that nothing had been done after she’d complained of a councilman routinely texting her flirtatious messages late at night. Crotty had seen still another councilman looking at pictures of naked women on his iPad during committee meetings. “We didn’t feel like we could say something—not if we wanted to keep our jobs,” says Crotty, who is now 39. Sexual harassment in her workplace had been so normalized that most incidents passed unmentioned. “The silence was deafening,” Crotty recalls.
The extraordinarily high rates of violence against Native people have been well-documented: More than half of all American Indian and Alaskan Native women have experienced sexual violence, according to a National Institute of Justice–funded study in 2016. A related but little-reported problem involves sexual harassment and assault in tribal governments and businesses, which are usually the primary employers for Native people on reservations, and whose leadership positions are dominated by men. There are no comprehensive data on the prevalence of abuse in tribal workplaces, but Crotty and other national advocates for indigenous women say they hear reports of such abuse regularly. LeAndra Bitsie, the chief executive of IML Training, has conducted leadership training sessions for some 150 tribal governments; she says that the issue of sexual harassment comes up often. A survey by the tribal newspaper of Oklahoma’s Muscogee (Creek) Nation this past October found that, of the poll’s 32 respondents, 25 percent said they were victims of sexual harassment in the tribe’s workplaces, and more than 40 percent said they had personally witnessed instances of sexual harassment.
InvestigateWest’s review of all electronically searchable tribal-court cases involving sex discrimination indicates that the incidents alleged by Crotty and other Native women are not unlike the kinds of workplace harassment reported by women in other industries: Bosses made sexually explicit comments or coerced employees into sexual encounters; employees slapped female co-workers on the buttocks or casually groped their breasts; women felt passed over for jobs because of their gender or were fired after reporting sexual harassment.
But there are unique circumstances that make it particularly difficult for Native women who work for their tribes to report and end harassment. As a nod to tribal sovereignty, Congress exempted tribes from Title VII of the federal Civil Rights Act, the provision that prohibits sex discrimination, including sexual harassment and assault, in the workplace. After consulting legal databases, journal articles, and research by legal experts Ann Tweedy and Kaighn Smith Jr., InvestigateWest found only 17 tribes—out of the 567 that are federally recognized—that have electronically searchable laws explicitly prohibiting sex discrimination in the workplace. Of those, six have adopted measures that apply only to employees of gaming enterprises. (The states of California and New Mexico have signed gaming compacts with most tribes in those states requiring the protection of tribal-casino employees from sexual harassment and assault.) At least three other tribes have broad anti-harassment codes that don’t explicitly mention sexual harassment and are not specific to an employment context. Although the Navajo Nation does have a law prohibiting the harassment of its members, until 2016 the definition was vague and the law didn’t specifically mention sexual harassment. That may at least partly explain why, in the six cases we found involving sex discrimination heard by the Navajo Supreme Court between 1990 and 2016, the court failed to find persuasive evidence of abuse in all but one.
“If there’s no law to protect yourself, nobody will come forward and so there’s no data,” Crotty says. “It’s a way to erase someone’s experience.”
Although it took several years, Crotty finally came forward herself. In 2014, she was elected to the Navajo Nation Council, making her one of only two female delegates in the past decade to serve on the 24-member body. Then, at a council meeting in 2016, she stood up and stunned her colleagues by describing the harassment she’d witnessed or experienced herself—degrading comments about her appearance, insinuations about her sexual relationships, the groping. “This needs to be addressed, and it needs to be stopped immediately,” Crotty said. Her 11-minute speech was a watershed moment, igniting conversation throughout the Navajo Nation and beyond.
But nearly two years later, national advocates for indigenous women say the conversation that Crotty started—and that the #MeToo movement recently amplified—has not led to widespread change in Indian country. “It’s difficult to talk about these things because of the oppression and racism that still exists today,” says Rebecca Balog of the National Indigenous Women’s Resource Center. “Do we want to air our dirty laundry for outsiders to look at tribes and further diminish us? How do you find your healing and hold people accountable when the message since 1491 has been to stay together, that the enemies are not in the home or in the community but on the outside? It takes a lot of bravery to disclose abuse and break that code of silence.”
Crotty and others trace much of the sexism that occurs today in Indian country to colonization. When representatives of the United States created treaties with the tribes, they consulted mostly with the men, and they appointed leaders—almost always men—to run systems modeled on American democracy. For instance, the Navajo Treaty of 1868—the agreement that established the Navajo as a federally recognized tribe and created their reservation—states that decisions about land ownership would be considered valid only if agreed to by “three-fourths of all the adult male Indians.” But Navajo culture has traditionally been matrilineal: Children are born into and identify with their mother’s clan. When people married, they moved into the wife’s home and herded animals belonging to her family.
“Patriarchy and gender discrimination aren’t part of traditional belief systems for most Native tribes,” says Sarah Deer, a University of Kansas professor of women, gender, and sexuality studies and the author of The Beginning and End of Rape: Confronting Sexual Violence in Native America. “You don’t want to romanticize tribal cultures and say there was never gender bias, but with very few exceptions the hierarchical paradigm of men on top and women on the bottom is inconsistent with the cosmologies of most Native peoples.”
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Tools for reckoning with sex discrimination in the workplace (click to enlarge)
The introduction of Christianity further reinforced this hierarchical paradigm, Deer continues, promoting men as the head of the household. The boarding schools to which all Native children were sent during the late 19th century—a practice that continued well into the 20th—not only subjected many students to routine physical and sexual abuse but reinforced the economic disparities between men and women by training male students in trades like welding while teaching women how to sew and bake—skills with less earning power.
Today, entrenched sexist attitudes have led to discrimination in many forms, including a gender wage gap. According to the National Women’s Law Center, fully employed Navajo women make about 81 percent of what Navajo men do, and just 51 percent of the earnings of white men. Women from other tribes, including the Choctaw and Pueblo, experience an even starker disparity. (These statistics include workers employed in both tribal and nontribal businesses.) When one executive for a Pacific Northwest tribe investigated the salaries of the past four people to hold her job, she found that the men were paid approximately 30 percent more than the women.
“I was so mad, I thought my head was going to spin off,” says the manager, who requested anonymity out of a fear that she’d be fired for speaking to the press. “You didn’t need to even say, ‘The council discriminates against women’—it was blatant. The numbers were there to prove it.” Still, she was afraid that if she initiated a lawsuit, she would endanger not only her own job but her partner’s, as well as the rental home they lease from the tribe—and since they live in a rural area, the opportunities for other employment or housing are scarce. (After appealing to the tribal council, the woman did eventually receive a pay raise.)
In the wake of harassment, native people often feel they have to choose between protecting themselves and protecting their tribe. Dode Barnett, a former councilwoman of the Muscogee (Creek) Nation, experienced this bind personally after a colleague allegedly slapped her on the buttocks and shouted “Woo!” while they were working in the National Council office. Barnett was shocked and humiliated, but she worried that filing a formal complaint would jeopardize passage of the legislation she had drafted to improve tribal schools—and she also worried about hurting her tribe’s reputation. The decision to stay silent, she says, was a simple one: “I love my people. It was very much in the forefront of my mind that anything I put out there could hurt my tribe, in that people would perceive us more negatively than they already do.”
But Barnett says she did confront her alleged harasser, Lucian Tiger, privately, and in the months that followed felt ostracized by some of her colleagues. Then, in 2017, Barnett was herself accused of harassing tribal employees, which she believes was part of a larger campaign against her led by Tiger, who had been promoted to council speaker in the interim. (Tiger did not respond to requests for comment.) Later that year, Barnett finally did speak publicly about her experience in an interview with the tribal newspaper, Mvskoke Media. After the story was published, the tribal administration responded with a memo saying that it doesn’t tolerate harassment. The Muscogee government does have a law that explicitly prohibits sexual harassment, but its strength and effectiveness depend on how it’s enforced.
For many tribal members, filing a complaint or disclosing abuse to the media involves huge personal risk. Deleana OtherBull, executive director of the Coalition to Stop Violence Against Native Women, says she hears about sexual harassment from indigenous women almost every day, and yet the vast majority of them are afraid to speak up—especially if a tribal leader is involved. “For a lot of women, making a complaint could mean not only losing their job, but losing their housing or their children’s college scholarship, or their partner could be fired. We’ve seen women who have spoken out being asked to leave their community, to have to move away,” OtherBull said.
As a result, many women rely on Indian Country’s whisper network to share stories and protect one another from known perpetrators. In a blog post titled “The Native Harvey Weinsteins,” Brown University professor Adrienne Keene described, without naming names, the “shit” so many Native women have experienced at the hands of “our ‘famous Indians.’” “We tell ourselves that [sexual harassment] is ok. That we have so few representations in the mainstream we don’t want to hurt their reputations. That they do ‘good work,’” wrote Keene, whose post has been shared more than 10,000 times since it was published last October. “We struggle so much to be more than stereotypes. There’s a fear that if we talk about these issues, we fall back on any progress we’ve made.”
In the nearly two years since Crotty stood up in that council meeting, the Navajo Nation has made changes to the way it deals with harassment. Within two weeks of Crotty’s speech, the Navajo president signed an executive order requiring anti-harassment training for all executive and judicial employees. At least seven local community governments are drafting resolutions or planning initiatives aimed at eliminating sexual harassment in the workplace. Crotty says she’s noticed less victim-blaming in the conversations about harassment. Other former aides say it’s becoming less frightening to talk about workplace abuse. Still, anti-harassment training remains optional for legislators. Crotty is working on a bill to amend the tribal code and more clearly define sexual harassment and assault; to help potential victims recognize troubling behavior; to stiffen the penalties for people found guilty of violations; and to make it easier to report harassment.
Without the leadership of women like Crotty, many tribes are still struggling to address sexism in the workplace. Many face severe budget shortfalls, making it difficult to draft new laws. In this void, personnel policies and procedures can be effective, says Judy Wright, president of the National Native American Human Resources Association, particularly if they include clear definitions of sex discrimination, as well as training and enforcement measures. InvestigateWest’s analysis of electronically searchable court cases indicates that, while some tribal courts have upheld the termination of employees accused of sexual harassment on the basis of personnel policies, others have found such policies inadequate or determined that, without a specific law, they have no jurisdiction.
When women do find the courage to report harassment—and when laws exist to make such action worthwhile—finding legal representation as a tribal member can be challenging. Most reservations are in rural places with limited access to attorneys, and many attorneys experienced in Indian law work for tribal governments, meaning that a conflict of interest may prevent them from representing individual members.
Beyond its implications for individual rights, the failure of tribal governments to protect against abuse in the workplace is a threat to the tribes themselves, says Kaighn Smith Jr., author of Labor and Employment Law in Indian Country, because it leaves them “vulnerable to being viewed as ‘lawless enclaves.’” In the absence of enforceable laws, reports of widespread sex discrimination invite Congress to impose federal laws, which would be anathema to tribal sovereignty. “If women suffer sexual harassment in the workplace without any ability to get a remedy, the legitimacy of tribal government can be called into question,” Smith says.
Lucy Simpson, executive director of the National Indigenous Women’s Resource Center, argues that in order to be successful, anti-harassment strategies must be devised within tribal communities, with an eye toward traditional values and customs. If tribes simply “cut and paste” policies developed elsewhere, they won’t resonate. “To combat sexual harassment and all forms of gender-based violence, we need to reclaim our Native values of cooperation, trust, personal AND community accountability, and restore the understanding that women are sacred,” Simpson wrote in an e-mail. That might require tribes to overhaul their governments entirely, says Jennifer Denetdale, an associate professor of American studies at the University of New Mexico and chair of the Navajo Nation Human Rights Commission. She explains that the current gender hierarchy of tribal governments rarely reflects traditional tribal values. “Until we change that governing structure to acknowledge women, then we will not see it,” Denetdale adds.
On a more basic level, rooting out sex discrimination will require more female leadership, says Deleana OtherBull. She advocates creating a Native American version of Emerge America, a national nonprofit that recruits and trains women to run for political office. Native Women in the Workplace, an annual conference that will meet for the fourth time in April, trains female indigenous leaders to harness cultural values and build the self-reliance necessary to navigate and transform sexism within the workplace.
As for Crotty, she is now in year three of a four-year term on the council. She’s debating whether to run for reelection or to focus on training a new generation of leaders. What matters to her is the same either way: empowering her community to address injustice. “Why we’re in tribal leadership is to speak out on behalf of our people. With sexual harassment and assault, you are silenced by shame. That’s the last place you ever want to be,” Crotty says. “On Navajo, #MeToo isn’t a conversation starter—we don’t talk in hashtags here. But people are talking about respect for women and the important role of women in our tribe. It’s a dramatic change.”
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