At the heart of this innovative and artfully constructed book are six case studies of Native American women from the cultural and legal borderlands of Arizona and Washington. Bringing together the fields of settler colonial and indigenous studies, U.S. western and borderlands history, and the social history of American law, Katrina Jagodinsky makes a powerful case for Indigenous women as legal actors and demonstrates how historians can access their stories.
Scholars of religion may be frustrated by the spectral presence of religious themes in this book. But anyone concerned with questions of gender, indigeneity, sovereignty, law, and culture will find this a compelling and significant work. Jagodinsky did extensive research in state and local archives, an approach that her concluding methodological chapter urges other legal historians to pursue. She artfully weaves together threads from these archives to reconstruct the lives of little-known women who fought inside and outside the courts to defend the integrity of their own bodies, the lives and inheritances of their children, and their personal and communal rights to the land. They battled the tightening hold of legal regimes that increasingly disenfranchised them and enabled white settler privilege and power. They did so against overwhelming odds and with limited successes that nevertheless allowed them to survive and, in some cases, facilitated the legal claims of their tribal communities in later years.
The Sonoran borderlands of Arizona and the Puget Sound borderlands of Washington, both reorganized from territories into states during the period covered in this book, provide useful focal points for Jagodinsky because they shared a similar chronology of conquest and incorporation into the United States yet developed very different regional cultures. Thus her case studies fit into a single timeline of legal developments in the American West, while also illuminating important regional variations on the larger patterns of settler colonial law.
The book is organized into three thematic and chronological sections, each with paired case studies from the Sonoran and Puget Sound regions. The first section roughly corresponds to the period of white settlement and territorial development, from the 1850s through the 1870s, and tells the stories of two women who suffered sexual assault at the hands of white masters and challenged the laws that subordinated them: Lucía Martínez, a Yaqui woman who suffered sexual servitude in Arizona, and Nora Jewell, a young métis woman raped by her white employer in Puget Sound. Both women lost lawsuits under legal regimes that favored white patriarchal authority; both persisted and found creative legal accommodations that made it possible for them and their children to survive.
In the middle section of the book Jagodinsky focuses on the years between 1865 and 1890, when the postwar United States consolidated its control over its western territories, transforming both Arizona and Washington from borderlands regions to form a new Anglo-American West. Chapters in this section focus on the interracial children of women like Martínez and Jewell, who struggled to claim and maintain their family ties, inheritances, and land rights. Juana Walker, the daughter of an Akimel O'odham mother and a white father who had gained his wealth through O'odham connections, lost her inheritance rights because of new territorial laws that invalidated mixed-race unions and the children they produced. On the other hand, Rebecca Lena Graham of Seattle managed to win a similar lawsuit—despite hardening racial attitudes in the Pacific Northwest—because both territorial laws and the judge who heard the case were more sympathetic to her cause. Both Walker and Graham eventually crossed racial lines to pass as white, a move that Jagodinsky names as a strategic necessity that may have worked to sustain rather than deny their family tribal ties.
The third and final section is set in the period from 1890 to 1946, when stable racial and political borders came with statehood, first to Washington in 1889 and then to Arizona in 1912. Jagodinsky's theme for these chapters, “space, race, and gender,” is more abstract and the case studies less directly comparable than are their counterparts in previous sections of the book. In Arizona, Yavapai woman Dinah Foote Hood illustrates the Indigenous tactic of avoiding legal regimes that were stacked against them, while continuing to squat on their traditional lands. In contrast, Louisa Enick and her children battled for years to gain ownership of the plots they had settled and farmed within the Sauk-Suiattle lands that became part of the Washington Forest Reserve in 1897. Enick and her children should have won their case under a strict interpretation of allotment laws, but Jagodinsky shows how bureaucratic incompetence and bigotry left them landless. Hood and Enick faced very different circumstances, but their persistence—the continuous occupancy of O'odham squatters, including Hood, and the record of legal petitions from Enick—would ultimately help their descendants win federal recognition as tribal nations because they demonstrated a continuous record of tribal investment in the land.
Jagodinsky presents the women in this book not as passive victims but as legal actors who fought back against assaults on both their bodily autonomy and their communal sovereignty—assaults that were all too often enabled and even sanctioned by U.S. law. Their stories collectively illuminate the consequences for Indigenous people of a host of legal transformations, such as the rise of race-based statutes in marriage and family law; the shifts in federal Indian policy; the move to statehood; and the creation of public lands, often at the expense of Indians. Moving seamlessly between the personal narrative and the big picture, the book weaves a significant tapestry of Indigenous legal dispossession and resistance.
Religious themes appear only metaphorically and tangentially in this book, most evocatively in Joy Harjo's poem “Returning from the Enemy,” which Jagodinsky uses to frame her introduction. Unfortunately, however, she does not interrogate the poem's religious themes or reflect on their implications for her analysis. The poem echoes the Christian form of a confessional prayer, but sets the God of the enemy against the Indigenous “gods”:
For Jagodinsky, the poem's significance lies in the Indigenous narrator's reclamation of her own integrity and autonomy—and that of her land and her people—against the enemy who seized and abused them. “The poet,” Jagodinsky writes, “offers historians a useful model in conceptualizing Native women's encounters with colonialism and the law” (3).
But these themes in Harjo's poem cannot be separated from the priests and preachers, the colonizer's clams to divine sanction, or “the law of the gods” that the Indigenous narrator claims in her own refusal (3). Here Harjo powerfully evokes the Christian doctrine of discovery that justified colonial conquests and still provides the legal foundation, now mostly obscured, for the existence of settler nations, including the United States today. The poet's choice of genre—a liturgical prayer of confession in which the Indigenous woman asks forgiveness for the sins of abandonment and forgetting—may be ironic. More likely, in my view, this genre serves as a subtle nod to the religious complexity of Native American experience: the gods that Indigenous people invoke to support their sovereignty may be Christian as well as Indigenous, both in the poem and across Indian country today.
Jagodinsky is under no obligation to highlight the religious themes in this poem, of course, or to foreground the intersections of religion and law in the experience of the Indigenous women she profiles. Nevertheless her decision to refer tangentially to the “mythic sagas” and “epic themes” of the poem (3)—rather than to unpack its references to the role of Christianity in colonialism—parallels her general inattention to religious themes throughout the book.
In her chapter on Lucía Martínez, for example, Jagodinsky notes “the Catholic-Yoeme figure of Christ as the human manifestation of the deer dancer,” evoking the complex spiritual tradition in which Martínez grew up (22). Jagodinsky places that tradition in the background of Martínez's story, depicted somewhat vaguely as a source for Indigenous spiritual survival and resistance. However, Christianity is entirely absent from her depiction of the colonizers’ world. The one exception comes when the Indian fighter Woolsey, soon to become Martínez's master, ridicules the “psalm singing fanatics” who criticized his slaughter of Apache women and children during the early 1860s (25). But Jagodinsky does not show how Christianity simultaneously sanctified that violence by asserting the superiority of the “civilization” that Woolsey represented. Nor does she attend to the many other religious threads that a different scholar might have observed and chosen to weave into the tapestry of this book.
I suspect that attending more seriously to religious themes would not, in the end, have changed the substance of Jagodinsky's argument. It would, however, have further deepened her analysis of colonialism's legal mechanisms—of the foundations and the implicit hierarchies built into colonial legal regimes—and of the varied resources that Indigenous women have drawn upon to survive or even to thrive under their sway. Readers seeking new insights into the intersections of law and religion will need to look elsewhere.
But this book is profoundly significant as it is, and I do not intend to take Jagodinsky to task for not writing an entirely different one. Legal Codes and Talking Trees offers a wealth of new insight into the legal regimes of settler colonialism and into the strategies that Indigenous women found to resist them. Scholars of law and religion can learn from her articulation of a legal history grounded in local and state archives, from her analysis of the racial and gendered dynamics of the law, and, most of all, from her insistence that Indigenous women belong not at the margins but at the center of the histories we write.
