(Re)Locating Other/Third World Women: An Alternative Approach to Santa Clara Pueblo v. Martinez's Construction of Gender, Culture and Identify

57 Pages Posted: 14 Dec 2018

See all articles by Shefali Milczarek-Desai

Shefali Milczarek-Desai

University of Arizona - James E. Rogers College of Law

Date Written: December 14, 2018

Abstract

Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)
Facts: Santa Clara Pueblo, a Pueblo in New Mexico, adopted an ordinance in 1939 stating that the children who result from marriages between female Pueblo members and non-Santa Clara Pueblo members cannot become members of the Pueblo. This restriction, however, did not apply to the children of male Pueblo members who married non-Pueblo women.

Issue: Julia Martinez, a Santa Clara Pueblo member, married a non-member. She lived in the Pueblo and had several children. Due to the 1939 Ordinance, however, Martinez's children could not become Pueblo members. Martinez and her daughter, Audrey, brought an equal protection claim against the Pueblo because the 1939 Ordinance treated male members of the Pueblo differently from female members of the Pueblo. The Pueblo defended its rule stating that membership is a prerogative of tribal sovereignty and, thus, outside the purview of the federal court system.

The above statement of facts and issues begins to erect the framework within which Santa Clara Pueblo v. Martinez, has been introduced, discussed, and analyzed both in case law as well as in academic literature. I became interested in Santa Clara Pueblo because framing the case as a binary struggle between equal protection and tribal sovereignty reminded me of the international discourse that surrounds non-Western cultural practices such as female circumcision, suttee, or women's status in certain Muslim countries. The way in which Santa Clara Pueblo has been presented parallels the universal-human-rights-versus-cultural-relativism debate over women's human rights and that debate's formulation of Other/Third World women.

One purpose of this Essay is to demonstrate to legal scholars and feminist theorists who have analyzed the case through the universalism/relativism binary that there are serious problems associated with looking at Santa Clara Pueblo. Pointing out the flaws in how the case has heretofore been presented, however, only illustrates what might be avoided, not what an alternative analysis - one that does not rely on the dualisms of the discourse - might look like. Thus, this Essay also engages in an alternative discussion of the federal courts' holdings in Santa Clara Pueblo. Finally, this Essay begins to envision how the courts might have discussed and decided Santa Clara Pueblo had they not been confined by the universalism-versus relativism discourse.

Keywords: equal protection, tribal sovereignty, women's status, universalism, cultural relativism, human rights

Suggested Citation

Milczarek-Desai, Shefali, (Re)Locating Other/Third World Women: An Alternative Approach to Santa Clara Pueblo v. Martinez's Construction of Gender, Culture and Identify (December 14, 2018). 13 UCLA Women's Law Journal235 (2005), Available at SSRN: https://ssrn.com/abstract=3301539

Shefali Milczarek-Desai (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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