"The Putative Father": Indigenous Women's Critiques of Family Law in Territorial Arizona and Washington, 1864–81

In 1879, the daughter of a British Columbia Native and Dutch immigrant sued her guardian for sexual assault, claiming that he repeatedly molested her while she worked his fields and mended his fences near Port Townsend, Washington Territory, and that she was “in family way” as a result.  That same year, a Yaqui woman sued her deceased master’s estate, claiming that he had fathered three of her children while she worked his territorial Arizona ranch and that when he had indentured their daughters in 1871, he had legitimated them and made them eligible for an inheritance. 

This paper examines the legal contexts in which Indigenous and mixed-race women resisted the men who benefited from their productive and reproductive labors in territorial Arizona and Washington, both borderlands sites of settler colonialism in the second half of the nineteenth century.  These women’s stories bridge critical legal studies with the history of racial-ethnic women and imperial sexualities.  Norah Jewell and Lucía Martínez drew from their Salish and Yaqui epistemologies to critique the legal cultures that made them subject to citizen male prerogatives.  Though seeking autonomy within very different territorial regimes, Jewell and Martínez embody other Indigenous women’s economic and sexual vulnerability under laws that recognized the intimate ties they shared with citizen men but still denied them the protections of family law. 

Their experiences reveal the fractured family narrative at the heart of settler-colonialism: territorial households depended on Indigenous women’s productive and reproductive labors, but territorial courts banned female Indians from sharing household profits and progeny.  Furthermore, Jewell and Martínez’s legal cases reveal that Native women did not simply accept such exploitive family dynamics, but made their protests heard in court.