By: Katelyn Buckles

January 22, 2022

More than half of Native American and Native Alaskan women have reported experiencing sexual violence in their lifetime, and almost 15% of those women reported experiencing sexual violence in the year before they were polled.[1] Native women[2] in this period were 1.7 times more likely than white women to have experienced violence in the last year.[3] Native men were 1.4 times more likely than white men to have experienced violence by an intimate partner.[4]The study did not account for the experiences of Two Spirit or otherwise genderqueer individuals.

Violence against Native peoples is even more likely near “Man Camps”, temporary housing facilities for thousands of predominantly non-Native male workers brought in to do oil, pipeline, mining, and other resource development work on or near Native lands.[5] The culture of these camps encourages drug and alcohol abuse, violence, misogyny, hyper-masculinity, and racism.[6] These Man Camps directly harm Native communities. Between 2006 and 2012 in the Bakken region, the ancestral home to the Mandan, Hidatsa, and Arikara Nations and the temporary home of multiple Man Camps, there was a 45% increase in reported unlawful sexual contact, such as incest and statutory rape,[7]and a 75% increase in sexual assaults against men and boys.[8]

Through this increased violence, Native communities and Tribal law enforcement have been curtailed in their search for justice by antiquated colonial systems that actively suppress their sovereignty.

In 1978, the Supreme Court held in Oliphant v. Suquamish Indian Tribe that tribal courts do not have the inherent jurisdiction to punish non-Natives for crimes committed on Native land.[9] Three years later, in Montana v. United States, the Court created a narrow exception to this rule, stating that a tribe can retain inherent power to exercise civil authority over non-Natives on Native lands when their conduct threatens or has some direct effect on the health or welfare of the tribe.[10]

In 2021, the Supreme Court, in United States v. Cooley, affirmed Montana’s proposition[11] but held that a Tribal law enforcement officer only has the authority to temporarily detain and search a non-Native on a public right-of-way that runs through Native lands.[12] Though a positive recognition of Native land rights, this is an excruciatingly narrow ruling. The Court purposefully sidestepped the opportunity to overtly overrule Oliphant and instead only expanded the search and seizure powers of Tribal police officers on public roads.

For example, Jerome Lucero, a Zia Pueblo police officer, was able to temporarily detain a non-Native driving under the influence on Zia Pueblo land but was forced to let him go because the New Mexico State Police wouldn’t send an officer to arrest him.[13] Lucero’s situation directly mirrored the holding of Cooley,[14] but he was still barred from arresting the non-Native.

Cooley was a shallow step in the right direction for tribal sovereignty but does nothing to address the realities of violence perpetrated against Natives, especially sexual and intimate partner violence which is already under-reported and under-prosecuted.

The Supreme Court, or Congress, must actively work to bridge this gap, recognize tribal sovereignty, and bring justice for Native peoples, especially those made vulnerable by the Man Camps. Over 90% of Native peoples who reported experiencing violence in their lifetime stated that it was by a non-Native perpetrator[15] and thus require avenues of justice against non-Natives specifically. Non-Natives can make up as much as 77% of a reservation’s population[16]and transient workers only add to those numbers. These holdings have made Native communities on Native lands extremely vulnerable, as tribal law enforcement has no criminal jurisdiction over non-Natives except when they are driving on public roads, which is unlikely to fully address the epidemic of personal violence.

The United States, and its settler colonial ancestors, have waged continuous war on Native American populations since 1492,[17] and five centuries later that colonialism has manifested itself as violent Man Camps, the draining of resources from their ancestorial homeland, and policies that prevent Tribal authorities from punishing non-Natives who commit violence against their people. It is past time for the United States to recognize that genocidal violence is not only a part of its past, but its present as well, and let sovereign Tribes govern their own land.

[1] André B. Rosay, Violence Against American Indian and Alaska Native Women and Men, National Institute of Justice 2 (June 1, 2016), https://nij.ojp.gov/topics/articles/violence-against-american-indian-and-alaska-native-women-and-men (using a nationally representative sample of almost 4000 Native people from the National Intimate Partner and Sexual Violence Survey, with more than half of the survey respondents having lived within reservation boundaries or an Alaska Native village in the past year).

[2] Hereinafter, this piece will use the general term ‘Native’ to refer to indigenous peoples in the continental United States as well as Native Alaskans. This piece does not speak to the experiences of indigenous persons in Canada or Hawaii.

[3] Rosay, supra note 1, at 2.

[4] Id. at 3, 6 (stating that Native American and Alaska Native female victims were also 2.3 times more likely than white females to need medical care as a result of their assault, and unfortunately, Native women were also 2.5 times more likely to lack access to this care).

[5] See Unist’ot’en Do Not Consent to Man Camps Increasing Violence Against Our Women, Unist’ot’en Blog, https://unistoten.camp/mancamps/(stating that Man Camps can re-traumatize and trigger past traumatic experiences among residents, as colonialism and industry deliberately target Indigenous women and Two Spirits).

[6] See A.C. Shilton, The Human Cost of Keystone XL, Pac. Standard (June 14, 2017), https://psmag.com/environment/the-human-cost-of-keystone-xl (Annita Lucchesi, a Southern Cheyenne woman, overheard a group of oil rig workers in North Dakota say “in North Dakota you can take whatever pretty little Indian girl that you like and you can do whatever you want and police don’t give a fuck.”).

[7] Kimberly Martin et. al., Violent Victimization Known to Law Enforcement in the Bakken Oil-Producing Region of Montana and North Dakota, 2006-2012, Bureau of J. Stats. 8 (Feb. 12, 2019), available at https://www.ojp.gov/pdffiles1/bjs/grants/252619.pdf.

[8] Damon Buckley, Firsthand Account of Man Camps in North Dakota From Local Tribal Cop, Lakota Times (May 22, 2014), https://www.lakotatimes.com/articles/firsthand-account-of-man-camp-in-north-dakota-from-local-tribal-cop/.

[9] Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 212 (1978).

[10] Montana v. United States, 450 U.S. 544, 566 (1981).

[11] United States v. Cooley, 141 S. Ct. 1638, 1641 (2021).

[12] Id. at 1641-42.

[13] Savannah Maher, Supreme Court Rules Tribal Police Can Detain Non-Natives, But Problems Remain, NPR (June 9, 2021, 5:09 AM), https://www.npr.org/2021/06/09/1004328972/supreme-court-rules-tribal-police-can-detain-non-natives-but-problems-remain.

[14] See Cooley, 141 S. Ct. at 1646 (Alito, J., concurring) (stating that the holding does not extend past the search and seizure of a motorist on a public right-of-way by a Native officer).

[15] Rosay, supra note 1, at 4.

[16] Tina Morris et. al., the American Indian and Alaska Native Population: 2010, U.S. Census Bureau 14 (2012), https://www.census.gov/history/pdf/c2010br-10.pdf (tribal police officers lack inherent authority over up to 77% of their population, even post-Cooley as officers have limited authority over motorists on public roads exclusively).

[17] David Michael Smith, Counting the Dead: Estimating the Loss of Life in the Indigenous Holocaust, 1492-Present, 12 (Native American Symposium, 2017) (estimating that 12 million Indigenous people died in what is now known as the United States from 1492 to 1900).