Columbus’s Legacy: Trafficking of Native American Women in the 21st Century
As a child, J. Dakotah, who is Anishinaabe-Ojibwe, Dakota-Sioux, and Menominee, was no stranger to a hard life. J. Dakotah’s family suffered from domestic violence, substance abuse, unemployment, and extreme poverty. Despite being in a crisis, her family did everything they could to survive. No one—J. Dakotah least of all—imagined her parents would sell their fourteen-year-old daughter into the life of human trafficking for economic survival. Tragically, however, that is exactly what happened. In order to feed its addictions, J. Dakotah’s family sold her to someone else, taking away her chances of having a real childhood.
As a state patrol officer, J. Dakotah’s trafficker had respect from their community. Therefore, his involvement in trafficking young girls from the reservation flew under the radar and made J. Dakotah’s efforts to escape him futile. His job afforded him all the technical, monetary, and psychological resources necessary to perpetuate her captivity. Additionally, J. Dakotah’s trafficker not only tortured her to reinforce dominance but also branded her, as a cattle rancher does his stock, to assert ownership. He also shackled her wrists and ankles so she could not escape, and he threatened to harm her family if she disobeyed him. Her trafficker took her to many cities to use her to make money. J. Dakotah had to learn how to play this sadistic game she was living, and she did play, until her body wasted away so much that her chains could no longer hold her. Though her body may have diminished in size, her spirit had not, and she seized the opportunity to slip out of her shackles and run.
Following her escape, J. Dakotah gathered a substantial amount of evidence against her trafficker, including medical reports of the extensive physical and mental abuse she suffered during her time with and because of her trafficker. Despite this, a judge told J. Dakotah it simply did not amount to enough evidence to convict him of the crimes he committed. Further, because her trafficker was a non-Native and conducted many of these events on tribal lands, the jurisdictional complications between federal and tribal law prevented him from being prosecuted. J. Dakotah suffered flashbacks, post-traumatic stress disorder, and extreme isolation, until she discovered other women who were victims of trafficking on Native lands. This newfound sisterhood empowered her to finally speak about what had happened to her, but even still, for safety reasons, J. Dakotah can neither return home nor experience life with her family again. She might always suffer because there was never any justice for her.
Human trafficking includes the recruiting, harboring, transporting, providing, obtaining, advertising, maintaining, patronizing, or soliciting “by any means a person [by way of] force, threats of force, fraud, coercion . . . or any combination of such means . . . to cause the person to engage in a commercial sex act.” To satisfy the statutorily defined elements of human trafficking, the transportation of victims from one location to another is not required. Trafficking can occur even if victims are “recruited and sold in one location.” The key elements of trafficking are (1) the victim is exploited, (2) the trafficker has financial gain because of this exploitation, and (3) the victim was exploited through coercion, deception, or intimidation. “A victim held through psychological manipulation or physical force is still considered a victim of sex trafficking regardless of whether he or she initially consented to engaging in a commercial sex act.” Traffickers often “groom” their victims to gain their trust by pretending to be their significant other and using emotional intimacy and promises of future financial and emotional benefits. Then, the traffickers will use that established relationship to involve their victims in commercial sex work.
Additionally, traffickers often seek out vulnerable women and children. These individuals are often poor, lack equal and adequate access to education, and are underemployed or unemployed, making them more vulnerable to exploitation. These sociologic characteristics are exceptionally prevalent among Native American populations, where unemployment rates are sky-high and “extensive layers of generational poverty” exist. These vulnerable characteristics are largely a consequence of the of oppression, sexual exploitation, and abuse inflicted on Native women, historically by white men, throughout the history of the United States.
This Article will explore how federal and state human trafficking laws fail to protect Native American women and girls. Part II will discuss the reasons that sex trafficking is more prevalent among Native American women than in other populations. It will examine the current statistics of trafficking on tribal lands and in nearby cities. Then, it will examine the particular vulnerabilities of Native American women. Specifically, this Article addresses how indigenous people—not only in America but also around the world—are particularly vulnerable to human trafficking and relates the underlying causes to those which Native American women must face. Lastly, Part II will discuss how the presence of “man camps,” casinos, and other entities has fueled the sex trade industry by bringing a large influx of men onto reservations, which has placed sex workers and other vulnerable populations in positions exposing them to trafficking.
Part III will discuss how jurisdictional complications render the current system ineffective in protecting Native American women and girls from human trafficking. Specifically, this Article address how it has been difficult to determine which agency, if any, has authority to investigate and prosecute trafficking cases when the victim or trafficker is a Native or when the events took place on tribal lands. Additionally, resources for victims are scarce, and even when they are available, they are often ineffective because of the specific and unique cultural needs of Native populations. Finally, Part III notes the lack of resources available for tribal law enforcement agencies to effectively combat trafficking on their lands and provide officer training, especially with regards to trafficking.
Part IV recommends how to improve antitrafficking efforts to better serve Native American women. Specifically, the need for legislative change to provide jurisdictional clarity. Recently, lawmakers have made several positive changes, but there is a need to further expand these laws and programs to fully encompass the specific needs of Native victims. Finally, law enforcement agencies need separate training to identify victims of trafficking victims, better resources to combat trafficking on tribal lands, and stronger relationships with other agencies to improve their investigations on and near tribal lands. Part IV ends by acknowledging the difficulties of having incomplete data regarding human trafficking because of the complexity of the crime. Lastly, Part V concludes by describing how the United States’ is currently reconciling with the harm it has caused to Native Americans and what recommendations could help reduce existing vulnerabilities. Background
In the United States, no data collection or tracking method provides a complete picture of human trafficking. The vast majority of available data comes from surveys of prostitution or commercial sex work. This data collection method is problematic because it conflates the statistics of human trafficking victims with data obtained from commercial sex workers broadly. Notably, however, a study of Native commercial sex workers in Minnesota showed that nearly one-half of the 105 interviewed women met the definition of sex trafficking. Further, “no one really knows what they’re getting into when they begin prostituting, and there is deception and trickery involved,” which indicates that many women likely fall victim to trafficking without realizing they are being trafficked.
Further contributing to the lack of data, human trafficking victims, like victims of other sex crimes, are often reluctant to come forward or participate in official investigations due to any of several factors: fear of retaliation by their trafficker, desire to avoid ongoing traumatization, failure to see themselves as a victim, distrust in law enforcement, addiction to drugs or alcohol, preestablished relationships with their trafficker, or lack of desire to return home. Additionally, victims generally lack confidence that their reports will be taken seriously. Finally, among Native Americans, there is social stigma against reporting any crimes to the police. Accordingly, victims have decided against reporting that they were trafficked, even when facing charges for sex crimes to which their trafficking led. Thus, to understand the prevalence of trafficking among a particular community, it is important to identify statistics which would implicate sex trafficking as the underlying cause.
The data connected to sex-related crimes indicate that Native American women disproportionally fall victim to trafficking. In Minnesota, Native American women make up 25% of all prostitution arrests—twelve times their demographic representation amongst the state population as a whole. Similarly, Native women in Anchorage, Alaska, make up one-third of all prostitution arrests, which is in a huge disproportion to their 16% representation in the state’s population. This disproportionality of Native human trafficking victimization is a problem unique to Minnesota and Alaska. Across the globe, indigenous women are more often victims of trafficking compared to other populations. A 2015 report surveying sex trafficking in four sites in North America further demonstrated this trend. This report showed that in these places an average of 40% of the women involved in sex trafficking identified as Native. At the sites surveyed, Native women populations made up only 10% of the general populations.
Furthermore, the Government Accountability Office (GAO) interviewed tribal law enforcement agencies across the country. Of the agencies surveyed, twenty-seven reported that their offices investigated crimes of human trafficking 2014–2016. A total of seventy human trafficking investigations were reported in that time period, with fifty-eight victims identified. Nearly half of the tribal law enforcement agencies involved in the report stated that they “believed human trafficking is occurring on tribal land in their jurisdictions beyond what had been brought to their attention.”
These statistics show that, even if the data fails to demonstrate the widespread prevalence of human trafficking on Native reservations, trafficking is in fact occurring, and there are documented reasons why victims do not report these crimes.
European immigrants systematically destroyed Native American people and cultures for almost five centuries. The Native American population in North America decreased by 95% from 1492 to 1776 and continued to decline during the 1800s. This decline occurred because of the intentional killings of the Native peoples and Europeans and because of both the unintentional and deliberate exposure of Native Americans to European diseases.
In the 1823 case of Johnson v. M’Intosh, the Supreme Court of the United States took up the issue of whether a U.S. citizen could purchase land from Native Americans. The Court determined that the citizen could not purchase such land because the Native Americans ceased to hold valid title to the land when Great Britain discovered the continent and subsequently colonized it. Conquest gave title to the conqueror, Great Britain, which later transferred by treaty to the United States and, thus, granted the United States the exclusive right to convey land. Further, SCOTUS stated that Native Americans were unworthy to hold title in the land by classifying Natives as “fierce savages, whose occupation was war.” SCOTUS reasoned the United States was doing Native Americans a favor by taking the rights to their land. This case laid the foundation for the government taking of Native land.
As a newly birthed western nation, the United States was no exception to the White Man’s imperialist agenda. The government’s primary goal, even in its infancy, was to take land from Native Americans. The Indian Removal Act of 1830 codified this goal, forcing the relocation of up to 10,000 Native Americans east of the Mississippi River. By 1876, the United States had obtained most Native lands and the people were forced to live on reservations or relocate to urban areas. These relocations caused the deaths of thousands of Native American people and disrupted tribes and families.
Additionally, the government wanted to force Native American people to assimilate into American culture and, in 1871, declared Native American children wards of the U.S. government. The U.S. government erected boarding schools where Native American parents sent their children at young ages to help them assimilate into American culture. If parents attempted to stop the government from placing their children in school, they could be arrested and jailed. The U.S. government established many of these schools far away from Native populations to discourage families from visiting their children. While at these boarding schools, Native American children could not contact their families, speak to their native languages, or practice their native customs. The children had to cut their hair and dress like non-Native American children. Additionally, the children were taught that Native American culture, including singing, dancing, and drumming, was of no use in American society. If students were caught speaking traditional languages or practicing their culture, the school would physically punish those individuals; however, the harm did not stop there.
Many children were physically and sexually abused at the boarding schools. Lawsuits filed over the last several years revealed that “Native students were beaten, whipped, shaken, burned, thrown down stairs, placed in stress positions, and deprived of food. Their heads were smashed against walls, and they were made to stand naked before their classmates.” Other suits against the religious orders that ran many of the boarding schools “charged that priests, brothers, nuns, and lay employees at these institutions raped, sodomized and molested [the Native children], often for years.” Children were not allowed to leave the schools until they acquired a “common-school education” and practical knowledge of a useful trade. In the schools, food and medical attention were scarce, resulting in the death of many students. In later reports, students described feeling as if they had been in a prison or concentration camp while attending these schools. These practices, which caused a loss of ethnic identity, are “considered the crucial precursor to many of the existing problems for some Native Americans.”
The U.S. government also forbade Native Americans from obtaining full U.S. citizenship until the early twentieth century. Prior to when Europeans arrived in North America, Native American tribes had stable, defined populations, each organized as distinct political communities. This helped the courts form the basis for why Native Americans could not become citizens of the United States. In Elk v. Wilkins, the Supreme Court stated that Indians who are “members of, and owing immediate allegiance to, one of the Indian tribes (an alien though dependent power), . . . are no more born in the United States . . . than the children of the subjects of any foreign government born within the domain of that government . . . .” Therefore, Native Americans born within the United States were not legal U.S. citizens because they were considered a member of an alien nation. Native Americans were not recognized as citizens until Congress passed the Indian Citizenship Act in 1924, with some states not recognizing Native citizenship until even later. For example, in Alaska, Native populations could not become U.S. citizens until 1936. In other states, however, Native Americans were not able to be citizens until the passage of the federal Indian Termination Act in 1953, which gave Native Americans full citizenship but effectively took away their sovereignty, land, and culture.
The mass genocide that Native Americans suffered over hundreds of years caused significant loss of land and life, and along with it, many stories of their culture. Elders passed down these stories and traditions orally, and when the people who knew the stories died, so did the religions, cultures, and histories. This loss of culture and identity caused trauma which still affects Native Americans today.
Intergenerational trauma, also called historical trauma, “arises from the historical experiences suffered by Native American women, passed down from one generation to next, making future generations susceptible to the same types of issues.” “The primary feature of historical trauma is that the trauma is transferred to subsequent generations through biological, psychological, environmental, and social means, resulting in a cross-generational cycle of trauma.”
There are three recognized phases of historical trauma. First, a dominant culture committed mass trauma against a population, causing cultural, familial, societal, and economic devastation within that population. Second, the original generation of the trauma responded by showing biological, societal, and psychological symptoms. And lastly, these initial responses to trauma were passed to successive generations through environmental and psychological factors, prejudice, and discrimination.
Each of these three phases of historical trauma can be found in some Native American communities. First, Native Americans were subjected to specific historical losses of population, land, family, and culture. Second, these traumas created “historical loss symptoms” relating to social-environmental and psychological functioning that continue today, including persistence of extreme poverty, high rates of sexual assault and domestic abuse, high rates of substance abuse, lack of access to quality education, low employment rates, and adverse health conditions. Lastly, the effects have been passed to successive generations, and there continues to be prejudice and discrimination against Native Americans in the United States today.
Traffickers look for vulnerable women and children when choosing their victims. There are many characteristics that can make someone “vulnerable.” These characteristics include being poverty stricken, undereducated, unemployed, addicted to drugs or alcohol, raised in foster care, and victimized in another violent crime. Unfortunately, these characteristics are prevalent in Native American populations, which makes Native women particularly vulnerable.
Poverty and drug addiction make women vulnerable to being trafficked because their traffickers can support their basic needs and provide them drugs. As of 2010, 28% of Native Americans were living in poverty, compared to 15% of the general population. Poverty on reservations exists, “in part, because of federal policies that have made the population the poorest ethnic group in the nation.” Additionally, Native Americans have the highest weekly alcohol consumption of any ethnic group, with 33% of surveyed Native American adults admitting to binge drinking in the last thirty days, which is higher than the overall national population (only 16% of adults in the U.S. admitted to binge drinking in the last thirty days).
Being raised in the foster care system makes someone vulnerable to being trafficking because it creates a lack of family ties and, for some, a feeling that no one cares about them. Native American children enter foster care at twice the rate of American children. Traffickers are known to “prey on girls, . . . whom already have been sexually abused, [do not] have decent family support or are in the foster care system.” This reality, coupled with the belief Native American foster children have that “nobody cares,” both increases the likelihood that these children be exposed to trafficking and decrease the chances that these same children will report it.
There is an increased prevalence of Native women as victims of violent crime such as domestic violence, sexual abuse, and rape. Native Americans experience sexual assault at a rate 2.5 times higher than other races. The 2010 National Intimate Partner and Sexual Violence Survey estimated that 27% of Native American women have been raped in their lifetime, compared to 18% of other women in America. The Office on Violence Against Women recognized that Native American women on some reservations are murdered at a rate over ten times higher than the national average.
There are several other characteristics of Native populations that make them vulnerable to becoming victims of trafficking. For example, the movement of Native women from rural to urban environments disconnects them from their family ties and creates more opportunities for strangers to traffic them. In other instances, girls and women will come to cities from their rural homes, for days or weeks at a time, to make money and then return home. Additionally, the lack of access to quality education has made Native women vulnerable to trafficking. The specific characteristics of Native American women make them vulnerable to becoming victims of trafficking because traffickers seek out people who they perceive as easy to control with nowhere to turn for help.
It is not unusual that Native Americans are particularly vulnerable to trafficking considering that indigenous people around the world are more vulnerable to human trafficking than nonindigenous people. This includes “children from hill tribes in Northern Thailand,” “aboriginal Canadian and American Indian women and girls,” indigenous people in Latin America, notably Peru and Colombia, “members of Batwa, or pygmy groups,” in Democratic Republic of the Congo, and “San women and boys in Namibia.” All of these indigenous groups have been targeted as victims of both sex and labor human trafficking.
Oil fields, forestry projects, and fracking operations are full of transient workers, almost exclusively male, housed in remote camps that usually consist of a mere collection of trailers in a field, far away from law enforcement. These man camps are common in the Bakken oil fields in North Dakota and Montana, where there is a high influx of men in a relatively secluded, resource wanting area. The rapid expansion of the Bakken oil fields brought tens of thousands of people, mostly men, into the area for oil industry jobs. One area that has seen this influx is Fort Berthold, North Dakota, where the Mandan, Hidatsa, and Arikara nations (collectively MHA Nation) are located. Near Fort Berthold, there has been an increase in violent crime, including sex trafficking and sexual violence against women and children.
Members of the MHA Nation noticed “women offering sexual services under the watchful eye of a pimp in local bars, gas stations, and the casino . . . .” Thus, despite the lack of specific data, it is understood that women are being trafficked in areas where the man camps are located or where the men go for leisure. Thus, pimps often take victims from their homes to the oil fields, where the pimps know there is a high demand for sex trafficking. Pimps will even come to reservations and ask vulnerable young girls if they want to make money. Then, the pimp will take away for a week to an oil field where to be prostituted to the men.
Officials from one tribal law enforcement agency indicated the tribal casino is likely a venue for sex trafficking, even though these officials lack the evidence to bring charges. Further, in the MHA Nation, the casino is one of the only attractions in the area, making it a common place for the men who work in the oil fields to go for leisure and relaxation. Therefore, sex trafficking is prevalent at the casinos simply because it is where the men are.
In these areas, law enforcement agencies are having difficulties responding to the increased population due to the man camps because the agencies do not have enough officers to address the volume of calls for services. Additionally, tribal law enforcement officers usually do not have jurisdiction over non-Native workers at the man camps, even if the camps are located on indigenous lands.
Although there is currently insufficient data regarding the problem of trafficking at the man camps and casinos, trafficking is occurring. There are many barriers to reporting for victims and many barriers to identifying victims for law enforcement. While underlying issues place Native women at a particularly high risk, improvements can be made to mitigate risks of becoming trapped in the sex trade.
In the United States, there are 574 federally recognized tribes, more than seventy state recognized tribes, and many other tribes, villages and rancherias which have filed for recognition. The federally recognized tribes are considered sovereign nations that have their own government and enforce their own laws. These tribes are unique in that they have different cultures, backgrounds, languages, traditions, and values. This uniqueness transfers over into their laws and justice systems. Originally, Native American tribes had exclusive jurisdiction over crimes committed by one tribal member against another in Indian Country. Congress clarified tribal jurisdiction in 1948 when it defined Indian Country:
(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within tor without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.
The U.S. government has enacted a series of laws limiting tribal jurisdiction for crimes in which the offender, victim, or both are Natives. The first, originally passed in 1817, is the General Crimes Act (GCA), which extended federal criminal law to Indian country and made them areas with exclusive federal jurisdiction. The GCA excludes: (1) crimes committed by a Native against another Native, (2) crimes committed by a Native that had already been punished by the tribe, and (3) cases where treaty excludes federal jurisdiction. Practically, the GCA applies to all offenses committed by non-Natives in Indian country. The next law is the Major Crimes Act (MCA), originally passed in 1885. Under the MCA, the federal government has jurisdiction over the crimes listed in the Act, currently fifteen classes of felonies total.
There are federal, state, and tribal laws that specifically address human trafficking. This overlap in laws creates confusion as to which jurisdiction has authority to investigate and pursue trafficking cases on tribal land or that involve Native victims. One question often comes first in a Native American human trafficking case—Who has the power to initiate criminal proceedings? In order to answer that question, the court or reviewing agency must determine the following: (1) did the crime occur on tribal land, (2) is the victim is a member of a federally recognized Indian tribe, (3) is the accused is a member of a federally recognized Indian tribe, and (4) what type of crime was committed?
If the answer to the first question is yes—the crime occurred on tribal land—then the court or agency can move on to question two. If the answer to the first question is no, then the crime is investigated and tried in the jurisdiction where the crime occurred.
If the answer to the second question is yes—the victim is a member of a federally recognized Indian tribe—then the court or agency can address the next question. Notably, when the victim is a member of a federally recognized tribe, that tribe does not necessarily have jurisdiction over the case. If the answer to the second question is no, however, the tribal government loses jurisdiction and either the federal government has jurisdiction if the crime falls under the MCA or the state has jurisdiction.
Then, if the answer to the third question is yes—the accused is a member of a federally recognized Indian tribe—then the reviewing body must determine what type of crime was committed. If it is a crime covered under the MCA, then there can be federal jurisdiction and tribal jurisdiction. The federal government statutorily has sole jurisdiction for crimes that fall under the MCA. In addition to federal prosecution, however, many tribes have continued to prosecute Native Americans for crimes that fall under the MCA, and it has been held that this concurrent jurisdiction does not violate double jeopardy; the practice is allowed and even encouraged in some jurisdictions. For those crimes which do not fall under the MCA, there is only tribal jurisdiction. When the answer to the third question is no, however, only federal jurisdiction will apply. The Supreme Court addressed this issue is Oliphant v. Suquamish Indian Tribe, in which it held that tribal authorities do not have jurisdiction over non-Natives. The holding limits a tribe’s ability to prosecute crimes committed by non-Natives against Native Americans on tribal lands. This is true for crimes under both the MCA and the General Crimes Act.
Further, determining which agency has jurisdiction over a case can be complicated process for law enforcement authorities. For example, in Fort Berthold, North Dakota, where the oil fields have attracted an increased number of men to come live and work, the tribal police must coordinate with law enforcement agencies in six different counties when there is a non-Native offender. This need for several lines of communication demands time and resources that detract from investigating the crime itself. Moreover, if the race of the offender or the victim is unknown, then there are “detrimental delays” in investigating that crime because it is unknown who has jurisdiction.
When a court or agency determines that a non-Native offender has committed the crime, tribal law enforcement officers, the Federal Bureau of Investigation (FBI), or the Bureau of Indian Affairs (BIA) must refer the case to U.S. Attorney Offices (USAO). The USAO then investigates the matter further and determines whether to prosecute the case. According to a 2010 U.S. Government Accountability Office Report, the USAO declined to prosecute 50% of the matters referred to them.
If a case can move forward on tribal lands, federal statute limits the punishments tribal governments can impose on convicted criminals. The Indian Civil Rights Act (ICRA) provides that tribal courts cannot “impose for conviction of any 1 offense any penalty or punishment greater than imprisonment for any term of 1 year or a fine of $5,000, or both.” The Tribal Law and Order Act amended the ICRA and increased tribal courts’ authority to incarcerate for up to three years or fine up to $15,000, or both, for one offense. In order for a tribal court to order incarceration for more than one year, they must (1) provide licensed legal counsel for an indigent defendant at tribal expense, (2) ensure that tribal court judges are legally trained and licensed, (3) publish criminal laws, rules of evidence, and procedure, and (4) maintain an audio or video record of the criminal trial. Under federal law, the crime of sex trafficking has a punishment of at least ten years, and therefore, tribal lands cannot adequately prosecute and sentence criminals who commit these acts because they are limited as to how long they can imprison an offender.
The complications of determining who has jurisdiction, the declination of prosecution by federal governments, and the limitations on tribal courts regarding length of imprisonments all make Native American reservations a “‘safe haven’ for all kinds of criminals,” especially sex traffickers.
Human trafficking victims, both Native and non-Native, need access to shelter, medical services, transportation, substance abuse treatment, legal services, mental health services, employment assistance, and victim advocacy in court. This is especially true for Native American victims, who may prefer Native healing methods and practices, such as women’s circles, sweat lodges, powwows, drum circles, healing shawls, meditation with elders, space cleansing rituals, and other culturally relevant healing methods.
On Native American reservations, there are some programs for victims of crime, victims of sexual assault, and victims of domestic violence. These programs are not available everywhere, and they still do not provide the care necessary to help a victim of human trafficking. Researchers interviewed tribal resource centers who stated they “simply do not have the resources to offer effective assistance or a collaborative, cohesive approach to helping Native victims and the poor in general.” Also, these interviewees stated they wished they were able to assist victims for longer periods of time because it has been proven that the longer a victim stays in contact with the victim service provider, the better the chance the victim will be successful in the treatment program and recover. Additionally, one of the biggest complaints of service providers was “the lack of funding for culturally appropriate healing methods.” Often, even if a provider offers Native American healing resources, traditional medical insurance will not pay for it, which ultimately makes it inaccessible. Additionally, federal, state, or other funding likely will not cover the items needed for traditional healing, which the providers say is problematic because in these communities, “those [traditional] methods help more than recognized techniques that are covered.”
Another problem with victim services, which is common in other tribal agencies and victim agencies in general, is that the individual service providers have heavy caseloads, which results in burnout and turnover. “Burnout is marked by the persistent feelings of emotional exhaustion, cynicism, hopelessness, inefficacy, and feeling disconnected from coworkers and clients . . . .” Victim service providers also experience vicarious trauma and compassion fatigue. Vicarious trauma is a type of secondary traumatic stress and is a result of the service worker’s “empathic engagement with clients’ trauma experiences.” As a result of burnout, compassion fatigue, or vicarious trauma, there is a high rate of turnover in victim service industries. This issue also occurs on reservations because many of the service providers personally know some of the victims and their families, and even if they do not, they are “deeply invested in the well-being of the[ir] community.”
Victim service providers who aid Native victims need resources to better help their clients. There is a lack of culturally relevant healing methods in many victim resource centers, and currently, the funding is insufficient to provide the resources and staff needed to accommodate all the victims who require care, especially with the high turnover rates in this profession.
With help from federal and state agencies, tribal law enforcement agencies could receive more funding to help address the current problems of understaffing and inadequate training. The U.S. Government Accountability Office interviewed many tribal law enforcement agencies about what they need to better serve their tribe and protect their tribe against human trafficking. This report noted that tribal law enforcement officers likely do not recognize when human trafficking is taking place, especially when the trafficking occurs alongside another crime, like drug trafficking, because the focus of the investigation is not on the trafficking but rather the other crime. Officers in general have a hard time identifying human trafficking victims because victims are reluctant to say that they are being trafficked, and trafficking can look like prostitution.
Additionally, tribal law enforcement officers cite a lack of training, equipment, and funding as a reason that it is difficult to investigate human trafficking on tribal lands. For example, tribal law enforcement offices are understaffed, and they have to patrol large tracts of land. With more money, agencies would be able to hire more officers to help distribute this burden and employ specialized officers to investigate trafficking crimes. Some tribes do not even have adequate funding to provide for critical parts of the justice system, including judges, prosecutors, and probation officers. Law enforcement officers also note that there is a lack of interagency cooperation between tribal, state, and federal law enforcement officers which makes it hard to investigate the crime thoroughly. Further, tribal officers reported that the lack of tribal-specific human trafficking statutes becomes an issue in human trafficking investigations because these tribal officers must investigate human trafficking crimes under federal or state laws.
These factors of the inadequacy of resources in tribal law enforcement agencies, mixed with the jurisdictional complexities and officer distrust, “has created a de facto haven for traffickers, allowing the traffickers to operate with little concern of detection or prosecution.”
There are many different laws that convolute which agency or court has jurisdiction over Native American crimes, as well as which laws should apply. Thus, federal, state, local, and tribal governments must work together to clarify these issues by passing new legislation and developing relationships among the different systems. The different agencies and lawmakers must also work together to enact laws that specifically identify and combat human trafficking of Native Americans on trial lands.
First, the Legislature needs to expand the Violence Against Women Act of 2013 (VAWA) to include more protections for Native American women on tribal lands. VAWA allows tribes to assert jurisdiction over non-Native domestic violence offenders if the tribe can meet certain standards. This includes investigating, prosecuting, convicting, and sentencing non-Natives who “commit domestic violence against Indian spouses or dating partners or violate a protection order in Indian country.” Tribes do not need federal approval to exercise jurisdiction over non-Natives, but they must comply with the statutory requirements when prosecuting non-Native offenders.
The House of Representatives recently proposed changes to VAWA to include “crimes of domestic violence, dating violence, obstruction of justice, sexual violence, sex trafficking, stalking, and assault of a law enforcement or corrections officer.” It will be a big step in allowing tribal governments to investigate and prosecute trafficking on their lands if the federal government enacts the proposed changes. However, the changes only protect sex trafficking, not labor trafficking. The House should expand VAWA to include all types of trafficking and to protect all victims of trafficking.
Additionally, the House should consider eliminating some of the requirements that tribes must meet to assert jurisdiction under VAWA, allowing more tribes to assert jurisdiction over non-Native traffickers. Currently, these requirements include fully protecting a defendant’s rights under both the Indian Civil Rights Act of 1968 and the Tribal Law and Order Act of 2010. More specifically, to protect the rights of a defendant under the Tribal Law and Order Act, a tribe must provide the following:
Effective assistance of counsel for defendants; Free, appointed, licensed attorneys for indigent defendants; . . . . Law-trained tribal judges who are also licensed to practice law; Publicly available tribal criminal laws and rules; and Recorded criminal proceedings. [The tribe must ensure] a fair cross-section of the community in jury pools and not systematically exclude non-Indians . . . . [It must i]nform defendants ordered detained by a tribunal court of their right to file federal habeas corpus petitions.
It can be difficult for tribes lacking resources to comply with these requirements. If the House determines that these requirements are necessary, then the House should increase funding to tribes under VAWA. For example, the requirement that a tribe must provide a free, appointed, licensed attorney means that the tribal government must pay the attorney’s expenses. In many cases, tribal governments cannot support these costs, and VAWA funds can be utilized to subsidize attorneys’ fees for tribal governments so they can comply with VAWA’s requirements.
Tribes can also enact additional fair standards for assessing eligibility for appointed counsel. Although state and local jurisdictions prepared these guidelines, they also apply to tribes. First, the guidelines recommend that tribal governments screen people seeking appointed counsel to ensure that they are financially eligible. Some tribal communities believe that all defendants who request a public defender should receive one, but screening to ensure the requestor needs the assistance saves the tribe costs. Additionally, the guidelines suggest that tribal governments provide uniform screening criteria and a consistent process which they commit to writing. Moreover, someone who does not have a conflict of interest should perform the screening. This means that neither prosecuting attorneys, public defender offices, nor the presiding judge should screen for eligibility. The screening process must consider the actual cost of retaining private counsel and balance that with the defendant’s income and other expenses. Lastly, the guidelines would advise having protections to keep all information confidential and allow a defendant to appeal a determination of ineligibility. By following these recommendations, tribal governments are able to streamline the eligibility process and provide licensed counsel at no cost to those who need it.
Additionally, the “fair cross-section of the community in jury pools and not systematically exclude non-Indians” requirement can be difficult for tribes to follow because tribes will have to significantly revise their current jury selection processes. Several tribes do not have many non-Natives who reside on their land. Therefore, a tribe will have to revise their jury selection process to include nonresident tribal members, people who live on tribal land, but are not members of the tribe, tribal employees, lessees of tribal lands, or other populations. Revising the jury pool selection process might increase the diversity of a jury, but depending on the demographics of the population, a tribe may not be able to comply with the provision if there are no non-Indians within the population. Therefore, it can be difficult for a tribe to comply with VAWA, thus restricting their ability to assert independent sovereignty, or jurisdiction, over a defendant.
Alternatively, the federal government could enact another law that would give tribes jurisdiction over non-Native human traffickers under certain standards. This can mirror VAWA’s Title IX Safety for Indian Women but expand to include a wide range of crimes to give tribes more sovereignty over violent crimes that happen on their lands, against their people, or both. This should include all types of human trafficking, as well as other crimes that are left out of VAWA including homicide, assault and battery, and more.
Another recommendation is that tribes should consider implementing specific statutes to address human trafficking if they have not done so already. Taking this type of action provides tribes with an opportunity to clarify what constitutes human trafficking on tribal lands, who has authority over the case, and what the punishment is. The Navajo Nation has enacted specific anti-trafficking laws, increased awareness of trafficking in their communities, and implemented training initiatives to combat trafficking on their lands. The Eastern Band of Cherokee Indians, Fort Peck Tribe, Mandan, Hidatsa and Arikara Nation, Pascua Yaqui Tribe, Swinomish Tribe, and the Tulalip Tribe have all also enacted specific laws to combat trafficking. Moreover, trafficking-specific laws should emphasize the importance of identifying and helping trafficking survivors.
Furthermore, state and federal agencies should develop relationships with the tribal justice systems and be knowledgeable of tribal justice. Additionally, state and federal courts can utilize and refer to some of the tribal justice and healing techniques of the nearby reservations, including victim resources, sex offender treatment programs, and more.
Currently, the federal government is collaborating with tribal nations on various programs to combat trafficking. These initiatives include increasing efforts to identify victims of trafficking, providing trainings at National Indian Gaming Commission conferences, ensuring technical assistance from the Department of Health and Human Services (DHHS), and expanding the Tribal Access Program. As described, there has been progress in connecting the federal and tribal agencies; however, the federal government must do more to provide resources for tribal law enforcement and to clarify jurisdictional issues.
Tribal service providers have identified several services that they need to help victims of trafficking but currently do not have the resources for implementation. These services include assisting victims with substance abuse disorders and achieving sobriety, staffing sexual assault nurse examiners at the facilities, providing counselors and advocates who are trained to help victims of sexual violence, securing additional funding to promote advocacy, opening shelters specifically for trafficking victims, and providing tribal healing methods. Service providers and victims prepared this list based on what the two groups decided was necessary to help them. Native American victims have expressed that they owe their survival of trafficking to their cultural practices, which focus on healing their mind, body, and spirit as a whole, unlike conventional medicine which treats the mind and body separately. As a result, victims express a desire for victim resource centers servicing Native Americans to incorporate Native healing practices in their programs. This is echoed by DHHS, which advised that there needs to be more “culturally relevant and trauma-informed approaches” when assisting Native American victims of human trafficking. Specifically, DHHS recommends women’s circles, sweat lodges, and other culturally relevant practices because “cultural safety” is a critical factor in healing.
Victims also need better access to victim service providers. The size and location of reservations can pose geographic barriers to accessing these providers. Poverty furthers this barrier, as it can be difficult to access transportation and there is limited public transit on Native American lands. If service providers have more resources, they can provide transportation to victims who need their services or open more locations to better serve the entire community.
State and federal courts that serve Native victims should be educated on tribal justice and traditional healing methods so they can better serve trafficking victims in state court. Moreover, victims will feel more comfortable coming forward if they know that courts hearing their cases are aware of these practices. Local victim services agencies near reservations should also receive this education so that if a victim is not currently in her native community, or if resources on the reservation are lacking, Native victims will still have safe spaces to seek help.
Victim resource providers must be better equipped to provide culturally relevant healing practices to Native American victims. Additionally, they need more resources to prevent burnout of staff and to make their services easier to access. Lastly, surrounding courts should be educated on tribal healing methods so they can provide better recommendations and services to victims who come to their courts.
Tribal officers believe that an increase in resources would help them identify and address human trafficking in their jurisdiction. They identify the need for additional training to focus on building trust between tribal and nontribal officials. Also, they recognize that more federal funding is necessary to hire more staff and officers to help with investigations. However, federal agencies claim resources are already available for tribal law enforcement officers even though no federal money is dedicated explicitly to assisting tribal law enforcement officers in human trafficking cases. If tribal law enforcement officers become familiar with how to access and use these resources, their efforts to combat human trafficking on reservations will be more successful.
For example, the Federal Law Enforcement Training Center (FLETC) offers a web-based training course that teaches law enforcement officers how to (1) recognize human trafficking encounters during routine duties, (2) protect victims, and (3) initiate human trafficking investigations. FLETC also provides a scenario-based video program that focuses on Native American victims of human trafficking and presents indicators of human trafficking. Additionally, the Department of Justice’s National Advocacy Center offered Human Trafficking in Indian Country seminars in 2015 and 2017. Both law enforcement officers and victim service providers attended the training, which focused on identifying victims, investigating trafficking cases, and working specifically with Native American victims. This training should be offered more often in places where individuals can easily access it, such as on reservations or online, so that tribal law enforcement agencies and their officials can maximize the value of this resource.
In addition, tribal law enforcement agencies need to be better equipped to identify human trafficking when they respond to situations that involve other crimes, such as drug trafficking, are likely occurring. Also, tribal agencies need more training and awareness about which crimes, such as gang operations, often go along with human trafficking so they can better investigate these crimes and locate potential trafficking victims. By providing more resources and trainings to tribal law enforcement offices, officers will be better equipped to identify, investigate, and respond to human trafficking on their reservations.
Victim resource centers, helplines, foster care organizations, prosecutor’s offices, law enforcement agencies, and courts need to begin asking the victims who use their services or appear before them whether they identify as Native American. Without having real data and knowing how big the problem is, it is hard to say exactly what changes agencies need to make. By tracking which victims identify as Native American, however, we can begin to ascertain the extent of the problem. Even though we lack this specific information, the recommendations above are still relevant. Human trafficking on Native American reservations is a problem. It is the extent of the problem that further research and data tracking will tell us.
The U.S. Senate acknowledged and apologized for past mistreatment of Native Americans in the 2010 Department of Defense Appropriations Act:
The United States, acting through Congress . . . (3) recognizes that there have been years of official depredations, ill-conceived policies, and breaking of covenants . . . (4) apologizes on behalf of the people of the United States to all Native Peoples for the many instances of violence, maltreatments, and neglect . . . (5) expresses its regret for the ramifications of former wrongs . . . .
This apology, nor the rest of the act, truly acknowledged the “depth of the crimes perpetrated against humanity and their ongoing effects.” While this apology was a good start in attempting to repair relations with the Native community, it falls short of what these cultures need to properly heal from all the past wrongdoings. The government must issue an adequate apology to Native American communities; it should provide them with resources to help bring the communities out of poverty and support them while they repair themselves. Native Americans deserve more from a government which systematically and purposefully destroyed their populations.
One recommendation is to pay reparations to Native Americans whose families the government harmed. Some efforts have been made to restore title to lands that Indians lost through fraud, deceit, and outright theft. Additionally, the Native American Graves Protection and Repatriation Act required “any recipient of federal funding (not private citizens) to return cultural items and human remains to Native Americans.” Reparations are the “formal acknowledgement of historical wrong, the recognition of continuing injury, and the commitment to redress, looking always to victims for guidance,” and they “must continue until all vestiges of past injustice are dead and buried.” These reparations have only focused on returning stolen lands and artifacts that were still in the government’s possession, but in most instances, individual citizens have not been required to restore the lands or items they hold. This means that many lands and artifacts are not returned to their rightful owners, which in turn does not provide Native communities with what they need to heal. The government should hold conversations with tribal leaders and communities to determine what kinds of reparations they need. It should consider establishing a commission that will address the needs of Native American and provide reparations, resources, and a true apology to these communities.
Additionally, it is evident that reducing the underlying vulnerabilities of Native women will decrease their likelihood of becoming trafficking victims. The issue of reparations is a topic within itself that is outside the scope of this Article, which has focused on specific, immediate recommendations that can help current victims.
Human trafficking on Native American reservations is a significant problem. Law enforcement has acknowledged it, local citizens recognize it, and victims themselves are coming forward saying it. Measures need to be established to help protect victims of trafficking on reservations. Native American women are vulnerable to becoming victims because of their history and their current situations. New laws need to be made on the federal, state, and tribal levels to address trafficking and clarify jurisdiction so that traffickers can face prosecution and victims can get justice. Also, victim resource centers need additional funding to help Native victims of trafficking and to provide victims with the resources they need to heal from their trauma. Likewise, tribal law enforcement agencies need more support, with funding, training, and equipment, so they can better discover, investigate, and pursue trafficking cases. These recommendations will not completely solve the problem of trafficking on Native American reservations, but they can help identify victims, allow victims to recover from the trauma they survived, and help gather more data to better inform the next steps of a resolution.
This section shall not extend to offenses committed by one Indian against the person or property of another Indian, nor to any Indian committing any offense in the Indian country who has been punished by the local law of the tribe, or to any case where, by treaty stipulations, the exclusive jurisdiction over such offenses is or may be secured to the Indian tribes respectively.