Citation

Finn K, Gajda E, Perin T, Fredericks C. Harvard J. Law Gend. 2017; 40: 1-51.

Copyright

(Copyright © 2017, President and Fellows of Harvard College, Publisher Harvard Law School Publications)

DOI

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PMID

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Abstract

In 2010, large deposits of oil and natural gas were found in the Bakken shale formation, much of which is encompassed by the Fort Berthold Indian reservation. Fort Berthold is home to the Mandan, Hidatsa, and Arikara Nation ("MHA Nation" or "Three Affiliated Tribes" or "the Tribe"). According to one estimate, in five years the Bakken formation has gone from producing about 200,000 to 1.1 million barrels of oil a day, making North Dakota the number two oil-producing state in the United States.2 In fact, the oil boom has been credited with decreasing the unemployment rate in North Dakota to 3.2%, one of the lowest in the United States.3 However, rapid oil and gas development have brought an unprecedented rise of violent crime on and near the Fort Berthold reservation.4 Specifically, the influx of well-paid male oil and gas workers, living in temporary housing often referred to as "man camps," has coincided with a disturbing increase in sex trafficking of Native women.5 There has been a dramatic increase in sexual violence against women and children and, according to the same report, sexual assaults on males on the Fort Berthold reservation have increased by 75%.6 This increase comes at a time when Native women are already more than twice as likely to experience violent crimes as women as a whole in the United States.7

The social risks of oil development on American Indian reservations like Fort Berthold are distinct from those of development in other areas in the United States.8 The complex and shifting nature of federal Indian law presents legal and practical challenges to law enforcement in civil and criminal contexts.9 Federal Indian law requires a jurisdictional analysis that focuses on the identity of the perpetrator and the land status of the location where the crime occurred in order to determine which governmental body is responsible for arrest, detention, and prosecution.10 Further, the historical exploitation of Indian lands and people informs current social and economic conditions that contribute to increased sex trafficking of Native women and children. The combination of these historical and legal dynamics presents unique challenges as the MHA Nation considers their options to effectively police and regulate the conduct of non-Native entities on their reservation and in Indian Country.

This paper begins by describing the intersection of sex trafficking and oil and gas development on the Fort Berthold reservation. Next, the paper describes the jurisdictional regime within federal Indian law and other barriers to law enforcement that have created a situation ripe for trafficking and other crimes on the Fort Berthold reservation.11 Finally, the paper will examine strategies to address this complex issue, including corporate engagement of relevant companies, tribal capacity and coalition building, cross deputization, and civil considerations and remedies contained in the Violence Against Women Act of 2014 and the Tribal Law and Order Act of 2010. This paper asserts that all of the stakeholders involved in oil development on the Fort Berthold reservation--federal, state, tribal, and public and private companies--must work cooperatively to eliminate sex trafficking of Native women and children decisively.

Language: en