TRIBAL TRAFFICKING LAWS

 

Native nations have a unique legal posture in American history and in American jurisprudence. Native nations are sovereign nations with the powers of self-government.  Native nations have their own constitutions and laws that govern conduct in Indian country. Federal law has become deeply intertwined with tribal law and Congress has the ability to restrict and modify Native nations' sovereign powers. Absent Congressional authority, states are precluded from regulating and exercising state authority in Indian Country.

 

Sex trafficking is a crime and when it occurs in Indian country, Native nations' power to keep their citizens safe is vital. Sex trafficking may include a host of criminal activities, such as sexual assaults and domestic violence, which are crimes in most Native nations. Because sex trafficking has typically been addressed by the federal law or Native nations' criminal codes on sexual assault, child abuse, and domestic violence, only a few of the 567 federally recognized tribes has a sex trafficking code.

 

The Mandans, Hidatasa, and Arikaras Nation (MHA nation) has the first tribal trafficking code which addresses both labor and sex trafficking. The MHA nation is a federally recognized tribe, and is federally recognized as the Three Affiliated Tribes.  

 

The jurisdiction of Native nations is quite complex. Authority over any criminal act will require a determination of where the crime took place, political status (Indian or non-Indian) of the victim, political status of the perpetrator and the nature of the crime committed. These factors must be analyzed to determine whether the federal authorities, Native authorities, state authorities, or some combination, have the power to hold perpetrators accountable.

 

Until recently, federal restrictions hampered the ability of Native nations to hold non-Indian offenders accountable for committing crimes in Indian country.  However, federal laws, like the Violence Against Women Act (VAWA) and the Tribal Law and Order Act (TLOA) have relaxed federal restrictions on Native nation's prosecution power to hold non-Indians accountable for crimes committed in Indian country. TLOA has also relaxed restrictions on Native nation's criminal sentencing authority. Loosening these restrictions on the sovereignty of Native nations will enable them to keep their citizens and communities safer and hold all perpetrators accountable for certain crimes committed in Indian country.