Little Justice for Native American Women Victimized by Non-Native Attackers

By Ben Cornelius
Associate Editor, Volume 23

In April of 2015, Edith Chavez, a Native American woman, was beaten and knocked unconscious at a North Dakota gas station by an unknown assailant.[1] She was then abducted, drugged, and driven northwest, likely to be sold into prostitution. Prostitution and human trafficking is thriving alongside the oil boom in the state.[2] Thankfully, Edith managed to escape her attacker and a good Samaritan took her to the police station in Williston, North Dakota to make a report.[3] Instead of taking a statement and launching an investigation, however, the police arrested Edith for an unpaid traffic ticket.[4] It was only after the intervention of a female officer at the jail Edith was transferred to that Edith was released and taken to a hospital.[5]

Unfortunately, stories like Edith’s are not unique. According to former U.S. Associate Attorney General, Thomas Perrelli, on some reservations, Native American women are murdered at over 10 times the national average.[6] According to U.S. Justice Department records, one in three Native American women are raped during their lifetimes, two-and-a-half times the likelihood for an average non-Native American woman.[7] In 86 percent of these cases, the assailant is non-Indian.[8] The oil boom in the Dakotas has flooded the region with transient workers, many of whom prey on those vulnerable to rape and murder.[9] In addition to rape and murder, human trafficking has also skyrocketed.[10] Since the arrival of Europeans Native Americans have been prime targets for human traffickers, and in other cities that lie near reservations such as Minneapolis, native woman are grossly overrepresented in prostitution.[11] A 2007 review of probation records from North Minneapolis found that 24% of the women charged with prostitution in the area were Native American, yet Native Americans only comprised 2.2% of the population.[12]

The jurisdictional nightmare created by the United States has limited the ability of American Indian Nations to protect their citizens from violence. In 1978, the U.S. Supreme Court stripped tribes of criminal authority over non-natives, leaving the federal government with the responsibility of prosecuting non-Indian on Indian crimes that occur on reservations.[13] Unfortunately, the U.S. Government has little to no interest in fulfilling that obligation. The Justice Department only prosecuted 35 percent of rape cases reported on reservations.[14] The statistics are even worse when it comes to prosecuting those who traffic Native American women. The Justice Department admits that federal authorities have prosecuted just two trafficking cases in Indian Country between 2013 and 2016, with only one conviction.[15] Compare this to the over 1,000 cases that were prosecuted in other jurisdictions during the same period. [16] This indifference, despite a consistent stream of reports showing that Native Americans are victimized at rates far higher than any other racial group in the United States, is troubling[17]

Despite the glaring problem of non-Indian on Indian crime, the U.S. Government has done very little to fix the problem. The issue could be tackled by overturning the 1978 Oliphant v. Shasquamish decision and giving tribes back the jurisdictional power to prosecute non-Indians for all crimes on tribal land, or simply by prosecuting the crimes themselves as they agreed to do.[18]  There have been some small recent improvements, however, such as the 2013 Violence Against Women Reauthorization Act. As a part of the act, tribes can now prosecute and jail non-Indians married to Indians and living on reservations who commit spousal domestic abuse.[19] The Act does not, however, protect against violence by strangers, violence against children, or address human trafficking.[20]

Advocacy on this issue stands to gain media support as well. The media has failed to bring significant coverage to the issue with vast underreporting of the horrific situation faced by many in Indian Country.[21]  In the words of Laura Madison, who helped create the Save Wiyabi Project, a tracking and reporting database of missing American Indian Women, “Indigenous women go missing twice: once in real life and a second time in the news.”[22]

[1] Zoe Sullivan, Crimes against Native American women raise questions about police response, The Guardian (January 19, 2016), https://www.theguardian.com/us-news/2016/jan/19/minnesota-native-american-women-trafficking-police.

[2]  Aaron Ernst, The Dark Side of the Oil Boom: Human Trafficking in the Heartland, Al Jazeera America (April 28, 2014), http://america.aljazeera.com/watch/shows/america-tonight/articles/2014/4/28/the-dark-side-oftheoilboomhumantraffickingintheheartland.html.

[3] Sullivan, supra note 1.

[4] Id.

[5] Id.

[6] Mary Pember, Missing and Murdered: No One Knows How Many Native American Women Are Missing, Indian Country Today (April, 11, 2016), https://indiancountrymedianetwork.com/news/native-news/missing-and-murdered-no-one-knows-how-many-native-women-have-disappeared/.

[7] Sierra Crain-Murdoch, On Indian Land, Criminals Can Get Away With Almost Anything, The Atlantic (Feb 22, 2013), https://www.theatlantic.com/national/archive/2013/02/on-indian-land-criminals-can-get-away-with-almost-anything/273391/.

[8] Id.

[9] Id.

[10] Id.

[11] Victoria Sweet, Trafficking in Native Communities (May 24, 2015), https://indiancountrymedianetwork.com/news/politics/trafficking-in-native-communities/.

[12] Id.

[13] Tribal Court Jurisdiction, U.S. Attorneys Manual, 687.

[14] Crain-Murdoch, supra note 7.

[15] Department of Justice wont collect data on Native human trafficking victims, Indianz (September 27, 2017), https://www.indianz.com/News/2017/09/27/department-of-justice-wont-collect-data.asp.

[16] Id.

[17] Id.

[18] Lyndsey Gilpin Why Native American Women still have the highest rates of rape and assault (June 7, 2016), http://www.hcn.org/articles/why-native-american-women-still-have-the-highest-rates-of-rape-and-assault.

[19] Laura Morales, Native Americans can now prosecute non-natives in Tribal Court (March 16, 2015), http://www.fronterasdesk.org/content/9971/native-americans-can-prosecute-non-natives-tribal-court.

[20] Id.

[21] Lauren Chief Elk, The missing women you don’t hear about: How the media fails Indigenous communities, Salon (Feb 14, 2014), https://www.salon.com/2014/02/14/the_missing_women_you_dont_hear_about_how_the_media_fails_indigenous_communities/.

[22] Gilpin, supra note 20.