Activist Update: Victory for Native American Women

NAPW is very pleased to share good news with you in our first-ever Tribal Court case.

While we have long been aware of the inequality that Native American women face, particularly concerning issues of reproductive justice, NAPW has not, until recently, been able to share our expertise in an ongoing case. After hearing NAPW’s Executive Director speak at the University of Washington School of Law earlier this year, instructors from the Tribal Public Defense Clinic at U. W. came to us and asked for our help.

A young woman from the Port Gamble S’Klallam Tribe in Washington State was facing criminal child endangerment charges under Tribal law, based on the claim that she had failed to ensure a healthy birth outcome. Misty Jones, a tribe member and mother of four, had been struggling with an addiction to prescription pain medications. This led to her involvement with Tribal criminal justice and child welfare authorities. While still pregnant, Ms. Jones had agreed to enter a treatment facility where she would be able to stay with her baby. Unfortunately, before she was able to get to the facility, she went into labor. The labor progressed so quickly that Ms. Jones did not have time to go to the hospital. Moreover, because the baby was in a breech (head up) position, the speed of the labor caused the baby to get stuck. As a result, he was without oxygen for nearly an hour before paramedics were able to come and complete the delivery.

The baby, whom Ms. Jones named Angel, lived for 10 days before Ms. Jones had to make the heartbreaking decision to remove life support. The response from some Tribal authorities was to charge the grieving mother with the crimes of reckless endangering and endangerment of a child. According to papers in the case, Ms. Jones was charged for "failing to obtain prenatal care." The Prosecutor in this case wrongly presumed that “prenatal care” would have prevented the precipitous breech birth. The Prosecutor also identified her drug use as a reason for the arrest. The clinic that was representing Ms. Jones, asked us to file an amicus brief.

NAPW did not presume to have expertise about Tribal Courts or the experiences of Native American women, but we do have long-standing connections with allied people and organizations who do. Through our outreach, we found Professor Sarah Deer of William Mitchell College of Law, a Citizen of the Muscogee (Creek) Nation and an expert in tribal law Native American women's issues. Professor Deer worked with NAPW staff attorney Farah Diaz-Tello on the brief, and ultimately gained admission to the Port Gamble S'Klallam Tribal Court so that she could file the brief and appear as counsel for the amici.

Working with our existing allies, such as the Native American Women’s Health Education Resource Center (NAWHERC), and new allies, the brief was filed on behalf of the NAWHERC, the Minnesota Indian Women’s Sexual Assault Coalition, the Native Youth Sexual Health Network, Running Strong for American Indian Youth, and Tewa Women United.

The amicus brief brought to the court’s attention the dangers of criminally prosecuting women who experience bad pregnancy outcomes, and the fact that Native American women experience poor health, addiction, lack of prenatal care, and infant loss at a greater rate than other women in Washington State. The brief relied on Native American scholars and a growing number of Federal authorities who suggest that addiction and poor pregnancy outcomes in Native communities is not the result of individual moral failing, but rather stems from “weathering’, and the trauma experienced by Native peoples resulting from ongoing cultural genocide. “Weathering” represents the cumulative stresses of trauma, poverty, racism, and marginalization, that take a toll on women’s physical health.

Amici urged the court not to imitate the missteps of US State prosecutors in seeking to punish pregnant women based on conditions they face. Rather, amici urged that the issue of addiction and perinatal loss be addressed through a restorative rather than punitive framework. We were thrilled to learn this month that as a result of these efforts all of the criminal charges have now been dropped.

Please support us as we continue to do this important work on behalf of all women.