North Dakota Human Trafficking Law Offers "Safe Harbor" to Minors

Along with jobs and commerce, the Bakken oil fields have brought organized drug crime and human trafficking to a state poorly equipped to handle either. New legislation went into effect August 1 that promises to start addressing the problem of human trafficking, particularly individuals or businesses who coerce minors into performing criminal acts, such as prostitution and drug dealing.

This amendment to the Uniform Act on Prevention of and Remedies for Human Trafficking clarifies the laws on trafficking, forced labor and sexual servitude—including patronizing a victim of sexual servitude—and makes these crimes a felony. The legislation defines aggravating circumstances as recruiting or enticing victims from shelters for victims, youth, runaways, or the homeless.

On the other hand, new protections are enacted for victims of human trafficking, including establishing victim confidentiality and limiting how evidence concerning the reputation or past sexual behavior of victims can be used by the prosecution. Minors who are coerced into criminal activity now have immunity from prosecution for delinquency for such crimes as prostitution, possession of drugs or drug paraphernalia, bouncing checks, petty theft and forgery. Any minor engaged in commercial sexual activity is considered a victim in need of child services. Individuals convicted of the above crimes while minors are encouraged to petition the court to vacate the conviction and get their record expunged. Victims of human trafficking can also bring civil action against traffickers and those who engage in commercial sexual activity. Finally, victims of human trafficking are automatically eligible for benefits or services from the state, regardless of immigration status, and even adds directives for helping undocumented victims qualify for a visa.

As part of the package, the legislature appropriated $1.25 million to help human trafficking victims, with a priority of establishing centers for victims to find services. The legislation also established a commission, which will be headed by State Attorney General Wayne Stenehjam.



What does this mean for residents of Indian Country, especially Fort Berthold, home to the Mandan, Hidatsa and Arikara Nations, where police report a fourfold increase in human trafficking, as well as associated crimes like drug dealing? The reservation has no shelters or other services for victims of human trafficking, although human trafficking groups have been working diligently to raise awareness of the issue among tribal members. The US Attorney's Office reported that fully half of the victims in sex trafficking cases prosecuted by the office were American Indian women and girls. The 20-officer strong Fort Berthold police force is struggling to respond to the surge in crime, with help from the FBI but without help from the state, despite the substantial oil impact money paid by the oil and gas development corporations.

None of the $1.25 million appropriated is earmarked specifically for services to tribes, and while the bulk of it is intended to be spent on services and programs in western North Dakota, there is no assurance that the centers will be convenient for Native victims of trafficking. Not all the 19 members newly appointed to the commission have been announced but so far, no representative from any of North Dakota's tribes has been named.

DOJ Issues FAQ for Prosecuting Under VAWA

Congress recently passed the Violence Against Women Reauthorization Act of 2013, or “VAWA 2013.” This new law includes significant provisions addressing tribal jurisdiction over non-Indian perpetrators of domestic violence. These tribal provisions were proposed by the Justice Department in 2011.

WHAT WILL TRIBES BE ABLE TO DO UNDER THE NEW LAW?
Tribes will be able to exercise their sovereign power to investigate, prosecute, convict, and sentence both Indians and non-Indians who assault Indian spouses or dating partners or violate a protection order in Indian country. VAWA 2013 also clarifies tribes’ sovereign power to issue and enforce civil protection orders against Indians and non-Indians.

WHEN DOES THIS NEW LAW TAKE EFFECT?
Although tribes can issue and enforce civil protection orders now, generally tribes cannot criminally prosecute non-Indian abusers until at least March 7, 2015.

WILL THIS BE VOLUNTARY?
Yes, tribes will be free to participate, or not. The authority of U.S. Attorneys (and state/local prosecutors, where they have jurisdiction) to prosecute crimes in Indian country remains unchanged.

WHAT CRIMES ARE COVERED?
Covered offenses will be determined by tribal law. But tribes’ criminal jurisdiction over non-Indians will be limited to the following, as defined in VAWA 2013:

• Domestic violence; 
• Dating violence; and 
• Criminal violations of protection orders. 

WHAT CRIMES ARE NOT COVERED?
The following crimes will generally not be covered:

• Crimes committed outside of Indian country;
• Crimes between two non-Indians; 
• Crimes between two strangers, including sexual assaults;
• Crimes committed by a person who lacks sufficient ties to the tribe, such as living or working on its reservation; and 
• Child abuse or elder abuse that does not involve the violation of a protection order. 

WHAT IS THE PILOT PROJECT?
A tribe can start prosecuting non-Indian abusers sooner than March 7, 2015, if

• The tribe’s criminal justice system fully protects defendants’ rights under Federal law;
• The tribe asks to participate in the new Pilot Project; and 
• The Justice Department grants the tribe’s request and sets a starting date. 

WHAT RIGHTS DO NON-INDIAN DEFENDANTS HAVE?
A tribe must
• Protect the rights of defendants under the Indian Civil Rights Act of 1968, which largely tracks the Federal Constitution’s Bill of Rights, including the right to due process.
• Protect the rights of defendants described in the Tribal Law and Order Act of 2010, by providing

• 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. 
• Include Indians and non-Indians in jury pools. 
• Inform defendants ordered detained by a tribal court of their right to file Federal habeas corpus petitions. 

IS THERE NEW FUNDING FOR THE TRIBES?
In VAWA 2013, Congress authorized up to $25 million total for tribal grants in fiscal years 2014 to 2018, but Congress has not yet appropriated any of those funds. However, tribes may continue to apply for funding through DOJ’s Coordinated Tribal Assistance Solicitation (CTAS), which can support VAWA implementation. Additional funding sources may be available through other Federal agencies.

HOW CAN WE LEARN MORE?
Please contact the Justice Department’s Office of Tribal Justice (OTJ) at 202-514-8812 or Office on Violence against Women (OVW) at 202-307-6026, or visit www.justice.gov/tribal.

House Bill Keeps Tribal Protections

Republicans in the U.S. House have introduced the Violence Against Indian Women Act of 2013 in response to concerns about the VAWA reauthorization recently passed in the Senate. While this bill protects the rights of tribes to prosecute non-Indians accused of domestic violence on tribal lands, offenders would have the right to request federal prosecution if they felt their Constitutional rights were being violated.

Senator John Barrasso from Wyoming, vice-chair the Senate Committee on Indian Affairs, voted against a previous version of VAWA but supports this one. Barrasso’s spokeswoman, Emily Lawrimore, told Indian Country Today Media Network, “He voted against the recent VAWA bill because it contains provisions that would likely be ruled unconstitutional by the courts. A Supreme Court ruling against this provision could be damaging to tribal authority and have irreversible consequences.”

So will this fix work to ensure the law holds up in court, or will it maintain the status quo, where domestic violence cases rarely get attention from federal prosecutors? Please join us at our LinkedIn Group, SafeRez, to share your thoughts!

What Can We Do About Domestic Violence NOW?

Whether or not the final reauthorization of the Violence Against Women Act allows tribes to prosecute non-Indians who harm Native women, the question still remains of what we are doing, can do and will do to prevent these crimes and bring the perpetrators to justice.

No matter how you look at the statistics, a lot of rape, battering, stalking, child abuse and elder abuse cases already fall under the jurisdiction of tribal authorities, but aren't adequately prevented or prosecuted. The problems are legion. Tribal systems are overburdened, underfunded and often understaffed; the tribal jail system is "unbelievably broken" (according to a comment about a 2008 BIA study); victims and family members are often unwilling to involve police or press charges; drug or alcohol use may impact the reliability of testimony; and when criminals move to other reservations, their arrest records rarely follow them.  Like eating a whale, these obstacles seem overwhelming, but can be reduced one bite at a time.

Congress can:
Fully fund the Tribal Law and Order Act, federal prosecutor's offices and existing public health programs, as well as create new funds for tribes to increase staffing, facilities, training, services and education.

Tribal governments can:
Make addressing domestic violence a priority by encouraging collaboration among tribal departments, seek and allocate funding for service providers and programs, actively participate in education and outreach, and ban non-Native offenders from tribal lands.

Tribal law enforcement can:
Stock adequate rape kits, seek funding to beef up staffing and training, collaborate with federal law enforcement and other tribal police to share best practices and resources, and work with health care providers and tribal or state service providers to deliver victim services, and share data with other tribes.

Tribal courts can:
Implement alternative sentences such as restitution for offenders, document cases so repeat offenders are identified and prosecuted accordingly, share data with other tribes and exercise the enhanced sentencing under TLOA.

Healthcare workers can:
Learn how to identify and screen victims of domestic violence, carefully document and report cases, develop a referral network of service providers, and provide resource materials for patients.

Families and friends can:
Learn about available resources, contact your tribal and federal government representatives to insist on change, organize safety and prevention programs, and support victims in leaving dangerous situations, prosecuting their attacker and in the healing process.

Victims can:
Share experiences with other victims in the community, help each other to find the strength to stop the abuse and to heal, and to raise a voice in protest against a culture that allows these crimes.

More Resources:
National Domestic Violence Hotline
Mending the Sacred Hoop
Tribal grant programs to prevent violence against women
Love is Respect: teen dating violence site
Men's Resource Center for Change
Guide to raising awareness in Indian Country


Do you have more ideas? We want to hear them!! Lamar Associates has started a new group, called SafeRez on LinkedIn and we welcome everyone who wants to change our communities for the better. Come and join the conversation!

Take Action on VAWA

The 112th Congress failed to reauthorize the Violence Against Women Act, in part because of its new protections for Native women, which apparently was a sticking point for House Republicans. A new version of the bill, which preserves the protections for Native women, will be voted on in the Senate as early as next week. The National Congress of American Indians have a number of ways you can support the bill.

You can:
Join a National Call TODAY, 3-4 pm EST by calling (877) 856-2376 | Conference ID: 95462308
Call or email your Senators to express your support of the bill: (202) 224-3121 (Capitol switchboard)
**Don't forget to ask them to sponsor the bill if they aren't already!
Participate in the "We need VAWA because...." campaign on Facebook, Instagram & Twitter by using the hashtag #VAWA or #NCAI1944
Join a State of VAWA Twitter chat February 11 at 2 pm EST

Native Women May Be Excluded From VAWA Reauthorization

Rumors are swirling in DC about what's stalling the reauthorization of the Violence Against Women Act. The House bill, which stripped protections for Native women victimized by non-Native men, among other groups, must be reconciled with a more inclusive Senate version. Indian Country Today Media Network was able to get some confirmation that the GOP is blocking the reauthorization solely to prevent the inclusion of protections for Native women. Representative Tom Cole, a Republican from Oklahoma and a member of the Chickasaw nation, argues that Tribes deserve local jurisdiction and that tribes need effective police power and protection in their own territory. The National Task Force to End Sexual and Domestic Violence Against Women also clarifies some of the facts about Title IX, Safety For Indian Women.

If you want Native women to have protection from domestic violence—no matter who commits it— contact Congressman Eric Cantor, who is leading the negotiations to draft new legislation before Congress breaks for the holidays.

Take Action to Help Native Women

October is the month to take action to support justice for Native women throughout the United States. You can sign a petition encouraging Congress to take immediate action to pass the reauthorization of VAWA, the Violence Against Women Act.

September Newsletter: End the Cycle of Violence * Free Resources * Disaster Response * Support Native Business

Click here for the Lamar Associates-Indian Country Training September Newsletter. In this issue, you will find information on ending the cycle on domestic violence, news about upcoming training opportunities, CDC alerts, improving disaster response for tribes, free online training, and our featured Native business of the month.

Protecting All Women Under VAWA

Since 1994, the Violence Against Women Act has been protecting women who have been victims of domestic abuse or sexual violence.  The law is up for reauthorization now and the House Judiciary committee has stripped out the language that would strengthen the capacity of tribal law enforcement to prosecute crimes against women under their jurisdiction.

Native American women suffer abuse at far greater rates than other American women. Sadly, there are a significant number of Native women who are currently unprotected by the law. Battering, abuse and rape cases involving a Native woman and a non-Native man have generally gone unprosecuted because of the lack of tribal jurisdiction over the non-Native man, even if he lives on the reservation.

The reauthorization bill submitted by the Senate allows tribes to prosecute non-tribal members who hurt Native women, but the response from the House has been to strip out these protections. The White House has joined a chorus of calls for House leadership to pass new legislation that doesn't make law enforcement pick and choose which cases they can prosecute. Supporters hope that an amendment restoring protection for Native women can be introduced on the floor.

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