By Yaakov Segal
Introduction
U.S. and international law broadly define sex trafficking as the recruitment and obtainment of people for a commercial sex act induced by force. (Deer 2010). Sex trafficking plagues the United States, but disproportiantely affects Native Americans. A significant proportion of research on sex trafficking finds Native communities suffering at higher rates than any other demographic groups. One report finds nearly 40% of all sex trafficking victims identifying as Native (Pytalski 2016). Among surveyed areas, indigenous peoples accounted for no more than 10% of the general population but a significantly higher proportion of the trafficking victims. Despite this, there have been relatively few published works that provide insight into this issue , and existing research provides insight on only a limited subset of areas (Pierce 2012). This paper investigates the higher proportion of Native American victims of trafficking and proposes (1) increasing victim services and (2) reducing jurisdictional complexities as two possible solutions.
Few policies exist to address the disproportionate impact of trafficking on Native Americans, a distinct demographic for reasons that will be discussed further. The Trafficking Victims Protection Act (TVPA) of 2000 was the first significant legislation addressing trafficking (Wagner 2017). The TVPA broadened the definition of sex trafficking- notably including prostitution- and allowed for easier prosecution of traffickers. Subsequent reauthorizations of the law in 2003, 2005, and 2008 expanded the range of services and protections guaranteed. The Justice for Sex Trafficking Victims (JVTA) act of 2015 responded to criticisms of the TVPA, expanding resources for survivors (Wagner 2017). Despite its bounds in narrowing in on sex trafficking, the TVPA and JVTA provided few protections to Native Americans. To the contrary, the JVPA gave Native American tribes more authority in prosecuting women involved with sex work, but not in prosecuting traffickers themselves (Ford 2014). Beyond this there is no language differentiating Native trafficking from normal. Recently there have been efforts to tackle it more head on, with states such as Minnesota, New Mexico, and North Dakota leading efforts to address the issue (Guardian). In 2021, President Biden issued an executive order to investigate the problem nationwide (Exec. Order 14053). Despite these successes, their recency has resulted in little available data for decision makers to consider.
Why Should the Government Care:
The U.S. government is directly responsible for the disproportionately-high rates of trafficking among Native women. Sex trafficking of indigenous peoples dates back to colonization in the 1500’s (Deer 2010). Portugal, Spanish, French, and English law all encouraged sex trafficking of Native tribes and the practice of officially enslaving them was practiced in America until the passage of the 13th amendment (Deer 2010). War, famine, assimilation, and relocation all contributed to the breaking-down of Native communities in the 19th Century, weakening their ability to prevent trafficking from occurring (Deer 2010). This continued in the 1960s with the broad relocation of Native peoples from reservations to urban areas. Relocation projects were presented as a panacea for tribal poverty by moving Native peoples into economically sound environments. The result, however, contributed to the Americanization of Native Americans but did little to fix hte underlying issue of poverty. Few social programs existed to effectively prevent Native communities from falling further into poverty. Such conditions persist today. This issue, combined with intergenerational issues like substance abuse, homelessness, and child abuse, have created the conditions for trafficking to occur. Given its long, often-antagonistic history with Native peoples, the United States has an interest and responsibility to implement policies to address this issues.
Policy Reccomendation #1:
Victim Services, which include any effort to help victims of sex trafficking heal and adapt back into society, present a short-run policy objective that would substantially improve conditions for trafficked Native people. As a whole, more resources for victim services are needed for all victims of sex trafficking (Wagner). It remains that there is little long-term support for victims in general. However, the factors that separate Native victims from other victims denote the need for support services geared at their needs specifically. One of the only examples of this in practice is the Phoenix program run by the Minnesota Indian Resource Women’s Center (MIWRC). The Phoenix program operated similarly to normal support programs for women affected by trafficking, offering emergency housing, education, legal aid, emotional support services and others (Deer 2010). The program has since morphed into other similar projects with different names. In other ways however, it differed in how the support services were offered. Instead of using normal counseling techniques, the Phoenix program employed tribal-based healing practices. Evidence backing cultural healing rather than using a “one size fits all” has been frequently corroborated (Pytalski 2016). A program like the Phoenix program should be adopted and become widely available to indigenous victims. A section of the Wisconsin state anti-trafficking budget must go directly towards this problem, due to Native Americans having needs beyond those of other victims.
Feasibility:
The two main barriers to this policy adoption are money and expert resources. The program would require similar funding to regular victim shelters. Native geared shelters would mainly operate similarly, with the key differences being how support is offered, and that it is a completely indigenous space. Although exclusive, an indigenous-only shelter is necessary and will most likely be in high demand given the scope of how many trafficked people are Native. Instead of typical therapy there would be tribal therapy methods led not by psychologists or therapists, but by Native community members. In this regard, the fight to secure funding would be fairly similar to that of a normal shelter. The main difficulty would be getting enough Native American community members to work full time at the shelter. Regular sex trafficking shelters are understaffed and struggle to find workers. This problem has a chance of being exacerbated with the demand for specific Native community members and Native healing practice experts. While potential issues at scale remain, the MIWRC successfully ran a program with high quality data collection that demonstrated its effectiveness, suggesting that it can be done.
Advantages and Disadvantages:
One reason to adopt this policy recommendation is because it offers the most immediate support. Thousands of victims are suffering right now because they don’t have access to this kind of support, and many fall back into the cycle of substance abuse and homelessness. This kind of solution can break that cycle and quite literally save lives. In the short term, it’s perhaps the most effective action that can be taken. The obvious disadvantage is that it does not address any of the long term issues. A problem with roots as deep as this requires far more than simply focusing on right now.
Policy Recommendation #2:
The second recommendation is solving the “jurisdictional maze” between federal, state, and tribal governments in prosecution of perpetrators. Many cases of Native trafficking victims are discarded simply because it is too confusing to navigate the system on where the case goes. If one feels that their case will go nowhere they will be much less likely to report (Ford 2014). The proposal would disentangle the complexities surrounding prosecution rights and create a liaison between state, federal, and tribal courts. The first step to reducing complexities between courts requires a simple report being created to use as a reference guide for law officials. In taking this simple step many fewer cases will be clogged in the judicial system. The creation of such a pamphlet can presumably be handled by experts familiar with the relevent law, particularly those on the Wisconsin task force against sex trafficking of indigenous peoples, as they will be best informed about the particular jurisdicitonal barriers. Essentially this is meant to make it so that a police officer does not need to be an expert to send a case to the correct court.
The second aid to solving jurisdictional issues is creating a liaison between the U.S. government and tribal courts. This may be a judge, clerk, advocate, or others. The primary responsibility of this liaison is to establish relationships between the U.S. government and tribes in a manner that will allow for more seamless operation of the courts in relation to one another. For example, a common case is a Native woman bringing charges against a non-Native trafficker. This kind of case is the one that ends up going nowhere due to a lack of understanding on how to handle it. The job of the liaison would be to effectively communicate between the U.S. and tribes to ensure no cases slipping through the cracks.
Feasibility:
A reference report guide and liaison will be relatively easy to implement. The reference guide simply consists of taking current information and compiling it into a user-friendly manual. The liaison will also be fairly simple. In most cases, there is already an unofficial person connecting governments and tribes. The liaison will be taking this person and making what they do an official role with outlined roles and duties. In the future, these efforts have the potential to provide the government with the information and tools to simplify jurisdictional complexities through legislation. Such efforts will best be spearheaded by the Missing and Murdered Indigenous Women Task Force of Wisconsin, a government task force aimed at solving the general issue of missing and murdered indigenous women.
Advantages and Disadvantages:
Simplifying jurisdictional issues can have a tremendous impact. It is often described as one of the roots of the problem and can provide long-term benefits. First, it will discourage traffickers from preying on Native women as much. As previously mentioned, traffickers see them as easy targets. They are well aware of the confusion that jurisdictional issues play and capitalize upon it, knowing they are much less likely to be prosecuted. There is also the issue of systematic underreporting from Native victims. If a victim feels their case will go nowhere, as it typically does, they are much less likely to report. Underreporting has been long cited as one of the biggest issues plaguing the lack of action going into the problem at hand.
The obvious drawback of the two proposed solutions is that they do not address the need for increased tribal authority in prosecutions. The 1978 Supreme Court case Squamish Vs. Oliphant stripped tribes of prosecution rights of non-Native offenders. Some of its impacts were reversed in the aforementioned VAWA reauthorization of 2013, but this still leaves out any tribal authority over sexual assault and sex trafficking. The remainder of cases go to state or federal courts, where they are rarely dealt with in a timely or effective manner. Devolving authority to tribes will ensure that cases are addressed by communities with an interest in preventing trafficking and potentially greater capacity to address such cases when compared to the federal courts.
Conclusion:
Current policy does not meet the needs of Native victims suffering from sex trafficking. Only in recent years has there been any attention devoted to the issue, and many policymakers remain unaware of the extent of the issue. The U.S. government bears significant responsibility for the systems of poverty, substance abuse, homelessness, and other risk factors that directly correlates with higher instances of sex trafficking among Native peoples. There remain little to no support systems for victims, and most that do exist lack quality. Additionally, the complex jurisdictional system leaves many cases unprosecuted, leading to systematic underreporting and an incentive for traffickers to prey upon Natives. Two solutions can help remedy this problem. First, additional, higher quality victim services are necessary. A larger portion of the anti-trafficking budget must be devoted to helping victims, rather than prosecuting perpetrators. These services are best done in a way that caters to the cultural needs of Native women, using tribal-based healing and other ancient tribal rituals. To reduce jurisdictional barriers, a comprehensive reference guide to be used by law officials and others who otherwise would be uninformed must be created. Additionally, a liaison between the government and tribal courts is recommended, as to lessen confusion between the two systems and better prosecution. By adopting these policy measures and recognizing the disproportionate trafficking of Native Americans as a legitimate issue, the U.S. can finally take steps to alleviate the problem it created.
Bibliography:
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Exec. Order 14053, 86 F.R. 64337 (2021)