Missing and Murdered Indigenous Women: The Colonizing Nature of Law

Eva was only 15 years old when she went missing in Albuquerque, New Mexico.[1] However, her story started years prior to her disappearance. In December of 2015, when Eva was just 13 years old, Eva received a Facebook message from a young man who claimed to know her from school.[2] Soon after, they began to meet in person where the young man, called “D”, began to groom Eva. He took advantage of Eva’s vulnerabilities and eventually gained her trust. After gaining her trust, D took exploitative videos and photos of Eva and threatened her with them. By 2016, at 14 years old, Eva was being sex trafficked to other men by D.[3]

Indigenous people make up only 11% of the United States population, yet they account for nearly 25% of human trafficking victims.[4] Further, Indigenous women and girls are the least recognized and protected population.[5] Sex trafficking is defined as the exploitation of a person for labor, services, or commercial sex through threat or use of force, coercion, and/or fraud.[6] In the United States, marginalized communities, primarily people of color, are victimized at a higher rate.[7] According to the FBI, 40 percent of victims of sex trafficking are Native, yet Native women represent 10 percent or less of the general population.[8] Racism and the historical mistreatment of marginalized communities leave minority and low-income youth vulnerable to sex trafficking.[9] Indigenous people face a unique relationship with sexual exploitation. Sex trafficking of contemporary Indigenous women is “almost indistinguishable from the colonial tactics of enslavement, exploitation, exportation, and relocation.”[10]

The History of Sex Trafficking and its Relationship with Indigenous People

Human trafficking has been identified as a major criminal justice problem in the United States.[11] Most of the attention surrounding this crisis has focused on international trafficking, however domestic sex trafficking is prevalent.[12] Systematic inequality and lack of resources have bred an environment that creates physical as well as psychological vulnerabilities.[13] Indigenous communities face high rates of chemical dependency, abuse, and involvement in foster care systems,[14] which are all factors that exacerbate vulnerability to predators.[15] Policymakers consistently ignore the connection between these vulnerabilities, race, and other root factors that push minority and low-income people into commercial sex trade.[16]

The intersectionality of oppression[17] includes the continued existence of policies in a “post-racial” society. In America, anti-trafficking movements have historically denied protection to people of color by creating laws that, in practice, target racial minorities.[18] In the formation of America, the prostituted underclass was formed through the historical sexual colonization of Indigenous, Asian, and Latino people.[19] Native people endured systemic sexual exploitation at the hands of American soldiers. To assimilate tribes into “American society,” the United States government sanctioned Non-Natives, like American soldiers, to use tactics that included abuse and prostitution.[20] Further, the government forcibly removed Native children from their families and lands, placing them in boarding schools designed to indoctrinate children into American culture.[21] It was common at these government-sanctioned schools for Native children to be sexually abused to control students and strip them of their native heritage.[22] During the “assimilation” era (the 1940s-1970s), the United States adopted policies that normalized sexual abuse of native women and girls under the law and subjected those who resisted colonization to “rape, physical abuse, and racist verbal abuse from colonists.”[23] The imposition of assimilation policies heavily impacted Native communities—fundamentally disrupting family, kinship, and community structures and governance.[24] Ultimately creating a cycle of trauma within Native communities.[25]

VAWA and Modern Issues Impacting the MMIW Crisis.

Little has changed within the law to protect indigenous women. Laws blatantly condoning abuse have been undone in what has been deemed a success in “post-racial” activism.[26] However, the long-lasting impact from forced assimilation tactics and current federal laws like the Major Crimes Act, subordinate Indigenous people and have directly led to the Missing and Murdered Indigenous Women (“MMIW”) crisis.[27] Tribal agencies are understaffed, underfunded, and undertrained to respond to sex trafficking.[28] Jurisdictional constraints and lack of agency communication allows for the continued abuse and trafficking of people.[29] The vast majority of Native victims—96% of women and 89% of male victims—report being victimized by a non-Native.[30] Yet, acts of Congress and Supreme Court decisions have made it virtually impossible for tribal authorities to prosecute non-Native major crime offenders.[31]

Advocates have pressed for more comprehensive legislation to protect Indigenous women through the Violence Against Women Act (“VAWA”). First passed in 1994, VAWA was first created to protect victims of domestic abuse.[32] In its original formation, VAWA helped reduce the rate of intimate partner violence against females by 53%.[33] However, the act failed to recognize the multifaceted oppression faced by women of color, specifically, the unique circumstances surrounding the exploitation of Indigenous women.[34] The law has strategically positioned representation in ways that intentionally facilitate marginalized status and colonial power relations.[35] The potential for justice is therefore limited due to the colonizing nature of law.[36]

The 2013 VAWA restored tribal criminal jurisdiction over Non-Natives, but only for the crimes of domestic violence, dating violence, or criminal violation of a protection order, and only if the individual’s tribal nation complies with various federal requirements.[37] However, in 2018, the VAWA expired.[38] Its expiration temporarily removed the authority of tribes to prosecute domestic violence, dating violence, or criminal violation of a protection order.[39] VAWA has been stalled in Congress until this year.[40] Now a 2021-22 Violence Against Women bill has passed in the house that focuses on violence against indigenous women and risk factors that create additional vulnerabilities for tribal members.[41]

Title IX of VAWA outlines Congress’s findings involving the disproportionate rate of homicidal death, sexual violence, and historical trauma suffered by the tribes.[42] Further, it acknowledges the Missing and Murdered Indigenous Women crisis and provides reasons as well as possible support to help combat the issues.[43] Most importantly, Sec. 902 authorizes funding for a tribal access program. This program’s goal is to enhance tribal government access to necessary resources to combat sex crimes. Additionally, Sec. 903 changes the Indian Civil Rights Act language so that tribes have special jurisdiction over domestic violence and sex crimes.[44]

Title IX also addresses “safety for Indian Women” through the authorization of funding for training and equipment, granting tribal governments access to federal criminal investigation databases, and creating a pilot project to allow “up to five Indian Tribes in Alaska to implement special Tribal criminal jurisdiction.”[45] However, the bill fails to acknowledge a leading cause in the sexual exploitation of Indigenous women like Eva—forced sex work. Largely, the solicitation of sexual acts is illegal for both the solicitee and solicitor.[46]

In the United States, racialized fetishes fuel the sex market.[47] For Indigenous people, there is a strong connection between colonization and the persistent targeting of native people.[48] Sexual stereotypes that were used to justify colonizing treatment persist today.[49] A study on Native women in prostitution found that 75% of women interviewed had sold sex in exchange for shelter, food, or drugs.[50] On reservations, families living in poverty are three times that of the national average.[51] Typically, jobs and economic opportunities are scarce.[52] Between four to eight out of ten adults on reservations are unemployed.[53] Among those who are employed, many earn below poverty wages.[54] Prostitution is therefore an economic consequence of having land stolen, and a culture systemically stripped.[55]

To more effectively support the MMIW crisis, Congress should enact policies that end the punishment of sex workers. Involvement in trading or selling sex is shaped by a history of systemic factors impacting women’s lives and the choices available to them.[56] Additionally, the government should update language to recognize that individuals who facilitate involvement in sex work are “traffickers.” Traffickers could be defined as people who, for the purpose of sexual exploitation, groom and exploit others for commercial sex work.[57] In a case like Eva’s, this could hold men like D responsible for exploiting her, as well as give other victims a clear definition to use when seeking to escape their situations. Further, changing the terminology could allow for better criminal charges and sanctions against traffickers.

  1. Nick Pachelli, ‘Nobody saw me’: why are so many Native American women and girls trafficked?, The Guardian (Dec 18, 2019)
  2. Id.
  3. Id.
  4. Id.
  5. Id.
  6. Trafficking Victims Protection Act, 22 U.S.C. § 7102(9)
  7. Jackie Jones, Black Teens Majority of Sex Traffic in U.S., New America Media (May 30,

    2007).

  8. HUMAN & SEX TRAFFICKING: Trends and Responses Across Indian Country, National Congress of American Indians Policy Research Center, (2016).
  9. Jones, supra note 7.
  10. Sarah Deer, The Beginning and End of Rape: Confronting Sexual Violence in Native America, (2015).
  11. Cheryl Butler, The Racial Roots of Human Trafficking, 62 UCLA L. REV. 1464 (2015).
  12. Deer, supra note 10
  13. Id.
  14. Id.
  15. Id.
  16. Id.
  17. Sarah Deer, (En)Gendering Indian Law: Indigenous Feminist Legal Theory in the United States, Yale J. of Law & Feminism (2019). “IFLT uses an intersectional framework, it offers a way to synthesize how and why Native women suffer multiple different kinds of oppression simultaneously. Native women in the United States experience structural discrimination in the forms of at least four ideologies: sexism, settler colonialism, classism, and racism. Two-Spirit Native people also suffer from insidious forms of homophobia and transphobia.”
  18. Butler, supra note 11 at 1479
  19. Id.
  20. Id.
  21. Id.
  22. Id.
  23. Id.
  24. National Congress of American Indians Policy Research Center, supra note 8.
  25. Id.
  26. Butler, supra note 11 at 1479
  27. Id. See also: 18 U.S.C. § 1153, “provides federal criminal jurisdiction over certain enumerated crimes if the defendant is Indian. It has exclusive federal jurisdiction over certain enumerated crimes such as murder, assault resulting in serious bodily injury, most sexual offenses, etc. The Major Crimes Act is the source of federal jurisdiction for crimes in which both the offender and the victim are Indians and the crime occurred in Indian Country. Tribes retain jurisdiction to prosecute Indians for the same conduct that constitutes a Section 1153 felony. In Section 1153 cases, the victim may be Indian or non-Indian. Accordingly, an Indian defendant may be prosecuted concurrently in two jurisdictions for the same offense. The Constitutional prohibition against double jeopardy does not apply because the United States and Indian tribes are separate sovereigns.”
  28. Id.
  29. Id.
  30. Violence Against Women Act Reauthorization Act of 2021, H.R.1620, 117th Congress (2021-2022).
  31. Deer, supra note 10.
  32. Monica N. Modi, The Role of Violence Against Women Act in Addressing Intimate Partner Violence: A Public Health Issue, J. of Women’s Health (2014).
  33. Id.
  34. Sarah Hunt, Representing Colonial Violence: Trafficking, Sex Work, and the Violence of Law, Atlantis 37.2 (1), (2016).
  35. Id.
  36. Id. See also: Sally Merry, Law and Colonialism, J. of Law and Society. Ass. (Apr. 2021) “Colonialism typically involved the large-scale transfer of laws and legal institutions from one society to another, each of which had its own distinct sociocultural organization and legal culture. The result was a dual legal system: one for the colonized peoples and one for the colonizers. colonial law. The language of transfer and duality, however, ignores the

    central feature of colonialism: It was a process in which one society endeavored to rule and to transform another. The courts and police established by colonial powers, arrayed beside the mission, the school, the store, and the local government office, enforced compliance to a new political order and at the same time sought to impose a new culture. Colonial governments often promulgated regulations concerning land and labor, regulations that frequently extended to specifying conditions of marriage and divorce and patterns of dancing, drinking, and entertainment.”

  37. History of the Violence Against Women Act, Legal Momentum, (last visited May 28, 2021). https://www.legalmomentum.org/history-vawa
  38. Id.
  39. Id.
  40. Id.
  41. Violence Against Women Act Reauthorization Act of 2021, supra note 28.
  42. Id.
  43. Id.
  44. Id.
  45. Jenna Kunze, House Votes to Reauthorize Violence Against Women Act, Commits to Safety for Native Women, Native News Online (March 17, 2021).
  46. Findlaw, Thomson Reuters (2021)
  47. Butler, supra note 11.
  48. Id. at 21
  49. Id.
  50. Id.
  51. Native American Aid (2021), (Last visited May 28, 2021). http://www.nativepartnership.org/site/PageServer?pagename=naa_livingconditions
  52. Id.
  53. Bureau of Indian Affairs, American Indian Population & Labor Force Report, (2005)
  54. Id.
  55. Butler, supra note 11 at 1483.
  56. Hunt, supra note 32 at 30
  57. Id.

 

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