Strategies to Restore Justice for Sex Trafficked Native Women
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This chapter historicizes the sex trafficking of Indigenous women in Central and North America beginning with Christopher Columbus, extending through the contemporary prostitution, and trafficking of Native and First Nation women. After analyzing prostitution and sex trafficking as central to colonization historically and contemporaneously, a strategy is outlined using civil litigation legal remedies in conjunction with developing a support system for the victims.
KeywordsColumbus Indigenous Colonization Sex trafficking Civil litigation Gynemutilation
This chapter examines the history of European sex trafficking of Indigenous women beginning with Columbus in the Caribbean through the colonial era in North America to the contemporary prostitution and trafficking of Native American and First Nation women. A focus on waterways and their connections with prostitution and trafficking via Red-Light Districts provides historical context for the institutionalized prostitution and trafficking in ports and surrounding areas, using the Duluth, Minnesota and Thunder Bay, Ontario ports as examples. The disparities Indigenous women in North America experience due to the ongoing effects of colonization and how they inform the disproportionate involvement of Indigenous women in prostitution and trafficking are outlined. Finally, using civil litigation along with providing culturally appropriate support to the victims is examined as a comprehensive strategy to restore justice to prostituted and sex trafficked Indigenous women in North America.
Using definitions and guidelines from the 2000 United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (UN Trafficking Protocol) and United Nations Declaration on the Rights of Indigenous Peoples (UNIDRIP) provide context for the prostitution and trafficking of Indigenous women and supports their rights in North America, especially those in the Duluth and Thunder Bay ports and surrounding area. This chapter identifies a legal strategy best suited to restore justice to Indigenous prostituted and trafficked women and therefore to Indigenous peoples by connecting civil litigation attorneys, abolitionists, and Indigenous advocates. Engaging with historical and contemporary prostitution and trafficking of Indigenous women will bring forward the first women sex trafficked in Central and North America as part of the colonization of Native peoples. This is a crucial step toward ensuring that all are included in the work to diminish, prevent, and eventually cease the global injustices of prostitution and sex trafficking.
History of Sex Trafficking of Indigenous Women in North America
Columbus and Slavery
Increasing resistance from Indigenous people regarding the veracity of Christopher Columbus’s expedition has revealed the brutality unleashed on the American continent and its people by Columbus and the European countries that arrived after his initial voyage (see Dunbar-Ortiz 2014). “Columbus’s very first business venture in the New World consisted of sending four caravels loaded to capacity with 550 Natives back to Europe to be auctioned off in the markets of the Mediterranean” (Resendez 2013, pp. 3–4). Columbus made three expeditions sanctioned by the Doctrine of Discovery, an international law that declared war on all non-Christians and approved the conquest of non-Christian people and their territories (Vera 2011, p. 455). In 1493, “following the ‘discoveries’ made by Columbus in the Americas, Pope Alexander VI issued the bull Inter Caetera, which indicated more explicitly that only Christian rulers could legitimately claim land ownership” (Vera 2011, p. 455). The bull Inter Caetera further condoned centuries of the attempted genocide of Indigenous people, including the enslavement of 2.5–5 million Indigenous people (Resendez 2013), death from disease (Silverman 2013), murder and dismemberment, land theft, destruction of animals and natural resources, starvation, removal, forced religious conversion, and unjust treaties ultimately resulting in a 90% decrease of the Indigenous population (Resendez 2013; Dunbar-Ortiz 2014).
What is lesser known is that Columbus and his men also raped, abducted, traded, and sold Indigenous women and girls for sexual exploitation (see Colon 1992). In 1500 Columbus wrote “A hundred Castellanos are as easily obtained for a woman as for a farm, and it is very general and there are plenty of dealers who go about looking for girls; those from nine to ten are now in demand” (Columbus 2003). Most Indian slaves were women and children, with Indian women being more valued than men due to sexual exploitation and reproductive capabilities (Resendez 2013, p. 6). European enslavement of Indians “constitutes an obvious antecedent to the sex traffic that occurs today” (Resendez 2013, p. 3). Columbus and his men were the first known sex traffickers of the Americas, making the sex trafficking of Indigenous girls and women a central component of the colonization of the Americas.
Colonial Era and American Revolution
The social, political, and cultural instability during the colonial era and American Revolution involved ongoing warfare, shifting allegiances among Indigenous and European nations, enslavement, and relocation of Indigenous people. Indigenous women and girls were particularly at-risk “…as females during wartime, colonial expansion, and slavery… [are] especially vulnerable to the sexual violence that so often accompanied conquest…” (Miles 2008, p. 63). Prostituted women traveled with military regiments and brothels were prevalent in the first 13 colonies (Gill 2001; Burrows and Wallace 1999). During the American Revolution, military leader George Washington ordered, “Lay waste all the [native] settlements around…that the country may not be merely overrun but destroyed” (“From George Washington” 2002). “Washington’s troops put to death all the women and children, excepting some of the young women, whom they carried away for the use of their soldiers and were afterwards put to death in a more shameful manner” (Sjursen 2018). In 1778, white men murdered a Cherokee woman and enslaved her young daughter who lived her entire life as a slave although enslavement of Native people had been illegal the year before she was captured (Miles 2008).
Colonial Expansion and Christianity
As colonization expanded, taking Native land and the sexual exploitation of Native women were justified by Christian leaders who pronounced the untamed land and Native people living on it were part of Satan’s kingdom (Pierce 2015, p. 65). Native women were often equated with being “whores” (see Bird 1999; Merskin 2010). Some argue “squaw” was derived from slang for vagina which came to mean “prostitute” (Monmonier 2006, pp. 3, 52), rendering Native women as a group to the status of whores.
In Canada during colonial times, the treatment of First Nation women was described as worse than Britain’s worst brothels; First Nation women were enslaved and traded at fur trade posts; and First Nation women were taken as payment for a male relative’s debt (see Pierce 2015). Canadian men took Anishinaabe women by force and made “great profit, the Masters in the Traffic of Females for the men’s uses” (Bourgeault 1989, pp. 100–101). During colonial expansion, Christianity, the military-states of Great Britain and then Canada, and commerce were powerful forces for the sexual abuse of Indigenous women. Canada’s historical treatment of Indigenous women was a by-product of colonialism that has perpetuated modern-day sex trafficking of First Nation women.
The European view of Native women as whorish and “fallen” contrasted to the matrilineal cultures of many Native tribes (Riel-Johns 2016, p. 36). In many tribes, Native men who abused women could be banished or killed. Therefore, the colonizers’ racist misogyny would have been unimaginable to Native people. Indeed, European men’s violence directed at Native women can be called “gynemutilation,” a term created by the author indicating the extreme sexual mutilation particularly exhibited against Indigenous women, other women-of-color, and prostituted and trafficked women. For example, in 1864 at Sand Creek, soldiers killed, scalped, and mutilated a group of primarily Cheyenne women and children. The soldiers cut out the Cheyenne women’s private parts and wore them over their saddle horns and on their hats (Pierce 2015, p. 70). In 1871, citizens attacked “Apaches camped at Fort Grant---… ‘two of the best-looking of the squaws were lying in such a position, and from the appearance of the genital organs and of their wounds, there can be no doubt that they were first ravished and then shot dead…’” (Pierce 2015, p. 70). Settlers and soldiers committed violence against Native women, fusing their view of Indian women as whores with westward expansion.
The US and Canadian governments created boarding schools to assimilate Indigenous children and tribes (see Booth, 2009). “[O]fficials and agents recruited, forced, or coerced children into government schools” (Booth 2009, p. 1). Sometimes police kidnapped children from their homes. Children were isolated and did not see their families for years (Booth 2009, p. 2). Schools were unsanitary, overcrowded, lacked qualified teachers, and forced Christianity on the children. Children were severely punished, ran away, used as child labor, malnourished, and died of disease (Booth 2009, p. 8). The Indian boarding schools use of Indian children for domestic and farm laborers qualifies as child labor trafficking under US Federal Law 18 U.S.C 1589.
The boarding schools instituted dynamics similar to those used by perpetrators of domestic violence, rape, and incest. The schools committed institutionalized abuse of Indigenous children, including sexual and physical violence; murder; starvation; strangulation; medical experimentation; electroshock; other kinds of torture; and pedophile and sex trafficking rings run by clergy, government officials, businessmen, and police (Farley and Lynne 2004, p. 108; Truth Commission Report 2015). The boarding school era groomed generations of Indigenous people for sexual exploitation, including prostitution and trafficking.
Ports and Waterways
After the arrival of Europeans, ports and waterways became sites of prostitution and trafficking. Red-Light districts flourished along rivers and seaports. Although the size, visibility, and location of the sex industry varied due to factors such as economic depressions and the industrial revolution, brothels and Red-Light districts were commonly located in working class areas to contain prostitution and the other components often associated such as saloons and gambling (Burrows and Wallace 1999, pp. 483–484). Another connection between ports and prostitution is the slang term “hooker,” often used for “prostitute.” (“Hooker” is thought to have developed from “Corlear’s Hook, adjacent to the shipyards, coal dumps and ironworks” in New York City where “droves of streetwalkers brazenly solicited industrial workers, sailors, and Brooklyn ferry commuters” (Burrows and Wallace 1999, pp. 483–484).) The historical interconnectedness of prostitution and trafficking on waterways and in ports with land-based prostitution and trafficking is unexamined.
During the Progressive Era (1890–1920), public awareness increased concerning the prostitution and trafficking of European American women. A Chicago judge wrote the “white slave trafficking is both interstate and international. Not one, but many shipments…come from Paris and other European cities to New York; and from New York to Chicago and other western points.” He describes a national network transporting women and girls throughout the United States (Bell 2018, p. 228). While “white slave trafficking” awareness was racist, steeped in Christian theology, and concerned with saving “fallen” white women (see Donovan 2006), it is a historical glimpse into the structure of prostitution and trafficking that affected Indigenous women and girls, leaving a legacy of abuse.
Duluth Port: A Case Study
Duluth, Minnesota, is a revealing case study of the connections among waterways, ports, commerce, and the historical and contemporary prostitution and trafficking of Native American and First Nation women. Eight Anishinabe reservations in Minnesota and Wisconsin are within 129 miles of Duluth. Duluth is also a political and social center for Canadian Anishinaabeg. Superior, Wisconsin is 6 miles south of Duluth and has an international port. The Thunder Bay, Ontario port, is 184 miles northeast of Duluth. The Duluth-Superior ports have been the “backbone of the region’s economy for well over a century” (“Duluth Seaway” n.d.). Minnesota’s economic history involves fur trading, fishing, mineral extraction, grain, and lumber. The Iron Range, west of Duluth, was (and is) responsible for supplying most of steel to the US Natural resources surrounding Duluth and the railroad industries created significant commerce for the port, city, and state. Currently, “the cargo handled at the Port of Duluth-Superior generate[s] $545.7 million…in the Great Lakes regional economy”; in addition, “[a] total of $156.3 million in state and federal taxes were generated by cargo and vessel activity at the Port of Duluth-Superior” (Martin 2011, p. 12). Tourism in Duluth generates an estimated $400 million annually (“Minnesota Sea” 2016). Due to the wealth created from the resources and location of reservations and ports, Duluth is a prime example of geography informing where, how, and to whom prostitution and trafficking occur. The Duluth port and surrounding area were and continue to be the locus for the prostitution and trafficking of Indigenous women and girls within hundreds of miles.
Historical Evidence of Prostitution and Trafficking Around Duluth
Although it is often believed that systems of prostitution and trafficking developed recently, or only occur in urban areas, historical evidence suggests otherwise. For instance, in 1903 on the edge of the Red Lake Reservation, a “squaw-house-of-ill-fame” existed 190 miles northwest of Duluth in rural, northern Minnesota. “Squaw-house-of-ill-fame” suggests that this brothel provided Indian women for sex. Police records from 1899 to 1911 in Beltrami County (part of the Red Lake Reservation is in Beltrami County) reveal arrests of madams for running houses-of-ill-fame, along with arrests and fines of other women for “disorderly conduct,” a common charge for women in prostitution. In 1916, a man was arrested for transporting a girl from rural Minnesota to Superior for prostitution (Held under Mann Act 1916). Early residents of Iron Range towns “stated that prostitutes walked the streets by day…” (MAG 2014). It is likely that Native women were the first to be sold, traded, and bought in the Duluth area as they were elsewhere in Central and North America.
Red-Light Districts in Duluth, Superior, and Thunder Bay
From the 1830s to the 1930s, the Canal Park area of Duluth was a Red-Light District (Dierckens 2012–2017). Brothels, saloons, and gambling dens lined the streets of Canal Park. In 1906, a chorus girl named Emma Moon disappeared from a brothel. The press reported, “she’d been kidnapped by ‘three lake captains,’ who took her ‘on a trip down the lake.’ Miss Moon’s fate is unclear” (Bakk-Hanson 2012–2017). Duluth police records from the era concerning “sporting people,” a term for prostituted women, pimps, and johns, indicate extensive interactions among police and “sporting people.” Police ledgers list the race of some arrested women as “Indian” and their occupation as “Whore” (Duluth Police 1887–1902).
Superior also had a Red-Light District. In 1901 the Superior Mayor said a city council member operated a brothel and wanted to open another near his saloon that he and another Council member financially benefited from (“June 19, 1901” 2018). O’Kash, a former Superior police officer, states prostitution in the port was common knowledge among officers and many citizens (1994), indicating historical institutional awareness and involvement of authorities in prostitution. He discusses a police officer who “visited” prostitutes along with widespread speculation that a Superior Police Chief’s wealth was due to payments from brothels.
Similarly, Thunder Bay “has a long-standing history of brothels and prostitution” (Wesley 2015). When a Thunder Bay mayor was a cop in the 1970s, he was told the “brothels were tolerated as part of the community” and “had always been there…” (Wesley 2015). Records document nearly 200 years of prostitution and trafficking in the Duluth/Superior area with police involvement in and complicity. Therefore, the police have been actively involved in furthering colonization against Native people.
Contemporary Disparities in North American Indigenous Women’s Lives
Disparities in Native American Women’s Lives in US
Centuries of colonization and historical trauma have resulted in numerous disparities for contemporary Native women, positioning them differently from other groups in the US. These disparities are evident in income, violence, PTSD, housing, child removal, and incarceration. Native women earn 57% of what white men earn. The more education Native women obtain, the less they make in contrast to comparatively educated white men (“National Women’s” 2015). Native women suffer higher rates of violence in the US than any other group, including Black males. Sixty-one percent of Native American women have been assaulted and 34% will be raped in their lifetime (Tjaden and Thoennes 2000), and they have the highest rate of domestic violence at 39% (Center for Disease 2008). Evocative of historical “gynemutilation,” when physically assaulted Native women are more likely to be injured than other women are and more of these injuries need medical care (Bachman et al. 2008). On some US reservations, Native women are murdered at higher than ten times the national rate (Perrelli 2011). Despite that most perpetrators of violence against women are intra-racial, for Native women, most perpetrators are interracial. Sixty-seven percent are white men (Bachman et al. 2008). Native women have high rates of Post-Traumatic Stress Disorder (Bassett et al. 2014, p. 417). Indian children are removed from their families at higher rates than any other race and often placed in non-Native families, despite federal legislation stating Indian children should be placed in Native homes. Native women are incarcerated six times more than white women (Flanagin 2015). In Minneapolis, Native women “were stopped, searched and arrested at higher rates than any other demographic group, including black men…” for being “suspicious persons” in an area with high rates of sex trafficking, indicating a connection between the view of Native women as prostitutes and police behavior (Jany 2018).
Disparities in First Nation Women’s Lives in Canada
First Nation women in Canada have similar disparities. Aboriginal families’ median income is 30% less than other Canadian families. Approximately 25% of First Nation women have a high school degree or equivalent and slightly more than 25% of First Nation women do not have a high school diploma or equivalent (Wilson and Macdonald 2010, p. 16). “Aboriginal people…are ten times more likely than non-Aboriginal people to become homeless” (McCallum and Isaac 2011, p. 9). First Nation “women are seven times more likely to die of violence than other Canadian women” (Kubik and Bourassa 2016, p. 23). Up to 4000 First Nation women are missing and murdered (Kassam 2017). More First Nation children are removed from their families now than during the boarding school era (“First Nations” 2011). Aboriginal women are one in three of all federally sentenced women, despite being less than 3% of the population (Vallee 2018). Furthermore, Human Rights Watch states police are perpetrators of violence against Indigenous women (Kubik and Bourassa 2016, p. 22). These disparities are the context out of which Indigenous women and girls are disproportionately prostituted and trafficked.
Contemporary Prostitution and Trafficking of Indigenous Women in North America
Prostituted and Trafficked Native Women in US
The disparities experienced by Native American and First Nation women make them more vulnerable to prostitution and trafficking. These disparities are further compounded by the violence and dehumanization of prostitution and trafficking. Indigenous women are disproportionately in prostitution and trafficking. “Across four sites surveyed in the US and Canada, an average of 40% of the women involved in sex trafficking identified as” Indigenous (Sweet 2015). In “Garden of Truth: The Prostitution and Trafficking of Native Women in Minnesota” roughly half of the women met the US federal definition of prostitution, pointing to roughly half of the respondents’ involvement in “survival sex” in lieu of livable wages (Farley et al. 2011). In “Garden of Truth,” 92% of the women wanted to leave prostitution, reinforcing the notion that women are in prostitution due to a lack of viable choices. Ninety-eight percent were currently or previously homeless, pointing to the vulnerability to sexual exploitation that homelessness creates and to the homelessness sometimes created by prostitution and trafficking. More than 2/3 of the women had family members who had been in boarding schools. Involvement with child welfare was commonplace as nearly half of the women had been in foster care, and almost half were abused in foster care. As children, the women were placed in Native foster homes just over 1/3 of the time. The women also experience extremely high rates of sexual violence. Nearly 80% of the women in “Garden of Truth” had been sexually abused as children by an average of four perpetrators. Ninety-two percent reported being raped; 84% experienced physical violence; and 72% suffered traumatic brain injuries in prostitution. Fifty-two percent of the women experienced PTSD, a rate comparable to combat war veterans. Similar to other kinds of sexual violence committed against Native women, white men had bought 78% of the women. Articulating 500 years of colonization, one of the johns said: “I thought we killed all of you” (Farley et al. 2011).
Prostituted and Trafficked First Nation Women in Canada
In a 2005 Canadian study on prostitution and trafficking 52% of the women were First Nation. Statistics reveal ninety-six percent of those women were sexually abused in childhood; 81% experienced childhood physical abuse; 88% were physically assaulted in prostitution; 92% were raped in prostitution; and 83% were homeless” (“Sexual Exploitation” 2014). A Government of Canada website states “of the approximately 400 children and youth exploited in Winnipeg every year, a high of 70–80% were of Aboriginal descent…” (“Sexual Exploitation” 2014). An example of “gynemutilation” is the Pickton pig farm in Vancouver, Canada. Over 30 women’s remains were found on the farm; 1/3 of the women found on the farm were First Nation (Gerald 2014). Robert Pickton, a john, killed the women and fed their bodies to the pigs (Parry 2006). Many of the women had attended sex parties on the farm along with the Vancouver mayor, other politicians, police, and Hell’s Angels, indicating collusion among powerful men and a crime syndicate (Parry 2006).
Contemporary Prostitution and Trafficking of Native Women in Duluth
What we have found with the Native girls from the reservations is there is quite a bit of recruitment, enticement, and I look at it as kidnaping from pimps. A girl, who was sixteen at the time, was literally sold to the crew of a boat [in Duluth port] and she was held captive on board this vessel as it made its way up and down the Great Lakes. They are [pimps] identifying the disenfranchised segment of a population and in this area, they choose to focus on the reservations. (g3nerations 2012)
In research conducted by the author as part of her graduate course work at the University of Minnesota at Duluth and with Mending the Sacred Hoop, another Native woman said she and other Native women had been sold to sailors on the ships at least into 2013 by professional and street-level male traffickers (Stark 2013).
Native women and youth have reportedly been trafficked out of the Duluth port to other cities from Toledo down to New Orleans and Thunder Bay and Toronto. Indigenous women also report being trafficked into Duluth from Canada (Stark 2013). This constitutes international trafficking under the Palermo Protocol in Anex II, Articles 3 and 4 (United Nations Office on Drugs and Crime 2004, pp. 42–43). The past and current prostitution and trafficking in the Duluth port is a system of sexual exploitation involving the complicity, perpetration, and collaboration of traffickers and third party facilitators (Third party facilitators are those who under 18 U.S.C. 1591(a)(2) “(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1).”) including ship captains, sailors, taxi cab drivers, hotels, bars, foster care providers, brothels, street pimps, dockworkers, dock security workers, organized crime, gangs, professionals in the criminal justice system, and others in Duluth/Superior area. This network recruited, lied to, and coerced Native women, girls, and boys onto the ships for what was often euphemistically referred to as “the parties on the boats” (Stark 2013). However, after getting the women drunk, crewmembers would “run a train,” a euphemism for gang rape, thus grooming the women for future exploitation.
Some Native women and teens were abducted and sold through gang activity. “According to Drewlo, organized crime in the form of gangs has played a large role in trafficking girls in and around Duluth for years” (Pember 2012). Drewlo explained one girl “was locked in a cabin on the boat for days while the crew raped her repeatedly. She managed to escape when the ship was in port in Cleveland and made her way back to Duluth, where she contacted police. In the end, however, she was too frightened to testify and disappeared” (Pember 2012). One woman woke on a moving ship to three men discussing whom they were going to sell her to in Thunder Bay. Five of her friends disappeared on the ships (Stark 2013) – strikingly similar to the 1906 disappearance of Moon. Anishinaabe journalist Annette Pember says, “We all knew about women who disappeared to ‘work the boats’… The story of the boat whore…visits destruction on the powerless yet holds them responsible” (2012). One Anishinaabe man who had female and male relatives used on the ships recounted the trauma his relatives experienced from being sold on the ships along with the trauma he experienced from witnessing the harm caused to his family. He spoke powerfully to the intra- and intergenerational harm to families. One time he went onto a ship to look for his teenage cousin who had been on the ship for months. He found her in a small room that “smelled of sex,” where she had been held. He said they performed an abortion on her while on the water (Stark 2013).
Contemporary Prostitution and Trafficking of First Nation Women in Thunder Bay
The US State Department recognizes Canada “as a source, transit corridor and destination country for sex trafficking, and calls women from aboriginal communities ‘especially vulnerable’” (Grant 2016). First Nation women and girls are also reportedly sold in and out of the Thunder Bay port. One high-ranking Ontario Provincial Police officer stated, “it wouldn’t be a surprise women were in the sex trade business,” on the ships (“Ojibway woman” 2013). In Thunder Bay in the mid-1970s, Bridget Perrier was sexually abused at eight and placed in foster care. At 12, she was sold for “sex parties on cargo vessels out of the Port of Thunder Bay to Duluth, Minn.” The “men were very violent” (Mitchell 2015). On occasion, the captain who sold Perrier took her from Thunder Bay to Duluth. Perrier returned home eventually, but others did not. Sometimes sailors took Thunder Bay girls onto the ships (“Former child” 2013). A sailor told Perrier they could throw girls overboard and they would never be found. According to Perrier, there were “many girls. This is Thunder Bay’s little secret” (Parry 2006). Unknown is how many Indigenous women disappeared on the ships – into the waters or on land far from their homes.
Using Civil Litigation with Support Systems to Deliver Justice to Prostituted and Trafficked Indigenous Women in North America
Obtaining justice for Indigenous women in prostitution and trafficking through the US and Canadian legal systems is inseparable from the historical trauma, sovereignty of Indigenous nations, socioeconomic disparities of Indigenous women, violence against Indigenous women, and issues specific to prostitution and trafficking. (While many view the demand for reparations as part of an anti-colonial strategy, some argue that rather than use colonial courts, it is “more appropriate to use bodies that adjudicate disputes between nations, such as the United Nations.” However, such strategies cannot work in the US as the US does not agree to such measures (Smith 2004).) Therefore, legal strategies to end the prostitution and sex trafficking of Indigenous women must address their unique legal and political positions in North America. Given that the US and Canadian criminal justice systems are rooted in the colonization of Indigenous people and continue to fail and foster distrust in Indigenous communities, other means of obtaining justice should be explored alongside the reform of the criminal justice system currently being sought by some Indigenous advocates (see Deer 2015). One potentially effective legal strategy for Indigenous prostituted and trafficked women in North America consists of using civil litigation in conjunction with culturally appropriate support systems for the victims.
In the US and Canada, the focus of using the court system to pursue legal remedies for sex trafficking victims has primarily been in the context of criminal prosecutions. Pursuing criminal charges poses significant obstacles for Indigenous prostituted and trafficked women. First, all 50 US states criminalize those who prostitute or who cannot prove the US federal definition of trafficking of “force, fraud, or coercion” (U.S. Department of State 2013). Unlike the US, Canada’s Bill C36 acknowledges prostitution as a site of extreme violence against women. Canada’s Bill C36 is similar to the Nordic Model in that it criminalizes buying and selling people for sex and does not distinguish between “prostitution” and “sex trafficking.” However, unlike the Nordic Model in other countries, Canada’s C36 has a communication provision that continues to criminalize the prostituted woman if the act occurs in a public area where there might be children (“For the Record” 2014), thus making that aspect of the bill like the US’s criminalization of prostitution. Although decriminalizing prostitute people is contentious, and prostitution is sometimes viewed as a “choice,” separating prostitution from trafficking is unjust as it criminalizes poor, homeless, addicted, previously trafficked women many of whom were first bought and sold as youth, who must choose between prostitution and survival (Native Women’s 2014). This division is particularly egregious for Indigenous women due to the historical and contemporary impact of colonization that has resulted in disproportionate involvement of Indigenous women and youth in prostitution. The Native Women’s Association of Canada states “Aboriginal women have the right to protection and safety of the law regardless of the views of others that they are choosing prostitution” (Native Women’s 2014, p. 34). In “Garden of Truth,” about half of the women could be charged as criminals despite the disparities leading to their involvement in prostitution (Farley et al. 2011). That 92–95% of Indigenous women want to leave prostitution and trafficking is an indication that the women are restrained and controlled by a variety of factors detailed earlier in this chapter; however, these factors do not all meet the legal definitions of trafficking in the USA and Canada. This leaves many women to be viewed as engaging in prostitution through “choice” rather than due to systemic discrimination and therefore lack of choice (“Native Women’s” 2014, p. 26). Pursuing justice for Indigenous women using the criminal courts creates a legal barrier for prostituted Indigenous women. First Nation prostituted women say the focus is “on persecuting the women, but not on pursuing the traffickers, johns or pimps…” Others “remarked that women would be unlikely to go to the police because police were potential johns” (“Native Women’s” 2014, p. 53).
Second, the US government has repeatedly undermined the sovereign status of Indian nations. “Manifest Destiny naturally grew out of the principles and elements of the Doctrine…it was specifically anticipated and intended that Manifest Destiny would be a disaster for the Indian nations…” (Miller 2011, p. 336). In 1823, the Supreme Court ruled in Johnson v. M’Intosh that the Piankeshaw could only sell their land to the US government. This undercut the sovereignty of Indian nations by arguing that the USA, via inheriting Great Britain’s claim of ownership of land in the USA, owned the land preemptively. Native people were simply occupants, not owners (JUSTIA n.d.). The Supreme Court rooted its decision in Johnson v. M’Intosh in the Papal Bulls and the Doctrine of Discovery (Vera 2011, pp. 467–468). Reliance upon the US and Canadian criminal justice systems by Indigenous victims and nations rests upon a biased historical precedence that affects contemporary criminal justice system responses toward Indigenous victims and nations. United Nations says “… aboriginal women continue to suffer high levels of violence with insufficient criminal liability and without having adequate access to justice” (Mitchell 2015).
Additionally, Native women encounter complicated jurisdictional issues that other women do not, diminishing Native agency. Unlike other US citizens, US Attorneys decide whether to prosecute on behalf of Native victims. US Attorneys decline “to prosecute 67% of sexual abuse…” cases (U.S. Government Accountability 2010, p. 9). Given the multiple barriers, Indigenous prostituted and trafficked women face, successfully prosecuting a criminal case on behalf of Native prostituted and trafficked women seems improbable.
Pursuing Civil Litigation
Pursuing civil litigation for the harm caused to Native prostituted and trafficked women can be an effective legal strategy. Both the US (18 US Code 1595 in TVPRA 2003) and Canada (Bill C-49) have specific provisions for using civil litigation for trafficking survivors. Although civil litigation is still based in a European judicial system (Common Law n.d.) and cultural barriers exist between Indigenous communities and European-based courts (Harpe and Rupertsland 1999), in civil court charges are not instigated by a police investigation so the women are not required to engage with or be dependent upon the police; rather civil litigants are plaintiffs in the legal action they pursue. Private investigators gather evidence for plaintiffs’ attorneys. Therefore, a source outside the criminal justice system, working with the plaintiffs’ attorneys rather than the state, conducts the investigation and is less apt to be controlled by or feel loyalty to peers, co-workers, or the “blue wall.” (The UN addresses the difficulties prostituted and trafficked women experience with law enforcement, stating that “one of this Protocol’s primary goals is to maintain a careful balance between law enforcement and victim protection” (Barnett 2006).) Second, civil litigation could potentially bring justice to a larger number of exploited Indigenous women as it might be possible to use civil litigation for women who meet the definition of prostitution using the 1984 Minneapolis Civil Ordinance as a model (Appendix: The Dworkin/MacKinnon… 1985). The Minneapolis Civil Ordinance hinges on the harm caused during the making of the pornography, stating that anyone “coerced, intimidated, or fraudulently induced…into performing for pornography shall have a cause of action…” The Ordinance also specifically allows someone who “knew that the purpose of the acts or events in question was to make pornography…” to file a civil lawsuit (Appendix:… 1985). Although the Ordinance twice passed Minneapolis City Council, the mayor vetoed it both times (MacKinnon and Dworkin 1997). Since then, however, victims harmed in the making of pornography have successfully used civil litigation seeking “restitution under VAWA, as authorized by the Crime Victims’ Rights Act, for harm…” (Laird 2012). Therefore, it is plausible to challenge the preclusion of prostitution in the US and Canadian federal definitions by using civil litigation based upon the harm committed against the “prostitute person” regardless of whether there was “force, fraud or coercion” in her or his entry into the act. Nowhere in the trigger for civil legislation does it state that “force, fraud or coercion” must be proven for a cause of action to be brought, so why do the US and Canada apply this requirement for someone harmed in prostitution? The federal definitions are based on antiquated and sexist ideas about women and not in an understanding of the interconnectedness among sexual exploitation, colonization, racism, sexism, homophobia, transphobia, ableism, homelessness, and poverty evident in prostitution. Historically, at the core of these outdated ideas about choice and prostitution are Indigenous prostituted women, who continue to pay with their lives for the ideas, actions, and institutions imposed on them by Europeans.
Next, civil litigation grants increased agency and sovereignty of the individual(s) because a civil lawsuit is filed with the victim as the plaintiff rather than through the state. In criminal court, prosecutors represent the state or government rather than the victim, and for Native and First Nation prostituted and trafficked women, this distinction is important. While there are ethical and brave US and Canadian Attorneys, they are beholden to the system in ways that civil attorneys are not. Even for those willing to challenge the system, others in the criminal justice system can influence or outright prevent them from prosecuting (see “Robert Pickton case” 2015). Given the institutional power and outright corruption those in the criminal justice system would have to challenge, how many have the political will and ability to do so, and will risk their careers for Native prostituted women? In addition, the state – from public perception and tourism to financial ties between political powerbrokers and businesses – is often connected with and benefits from systems of prostitution and trafficking. This is particularly apparent when considering the considerable amount of money derived from tourism, employment, and taxes paid by businesses benefitting directly and indirectly from prostitution and trafficking. Tremendous political pressure would be put upon a US Attorney and others to not proceed with a case representing Indigenous women as prostitution and trafficking are industries generating billions of dollars globally. Cases with international connections also involve international diplomatic nation-state and trade relationships. Since prostitution and trafficking are part of the GNP and may involve international politics, nongovernmental entities are more likely to pursue justice for Native prostituted and trafficked women. One possible limitation of using civil legislation is that a payment “suggests that the US simply needs to pay a lump sum to cover its past and ongoing injustices and then absolve itself of the responsibility to transform institutionalized structures of white supremacy” (Smith 2004). While this is an important point, benefits could still occur from an individual civil case won by an Indigenous victim such as monetary assistance, public awareness, and deterrence. However, in consideration of the concern, a Native nation could file a class action suit for the harm caused to the victims, their families, and the nation itself. The harm is particularly profound for Native communities given the historical and intergenerational impact of the prostitution and trafficking of Native women. A class action suit would be similar to the one against Canada regarding the boarding school history, the largest class-action settlement in the history of the country (“Final Report” 2015); the 14 Caribbean countries suing three European countries for the legacy of slavery (Mullins 2013); the civil lawsuit by Washington tribes leveling “racketeering, negligence, conspiracy, unjust enrichment, fraud and other charges against…companies [that] made billions of dollars off the opioid epidemic” (Pilling 2018). Filing a class action lawsuit is akin to the communal traditions of Indigenous cultures and would highlight the need for justice for individual victims along with the community-wide harm caused by those who buy and sell Native people for sex. The tribes could set aside monies won in a civil lawsuit to assist those directly harmed and establish a fund for prevention and other activities the tribe felt would help its citizens similar to the California Trafficking Victims Protections Act (Werner and Kim 2015). Victims would hold perpetrators accountable and obtain practical assistance for themselves and their families, and the tribe could facilitate healing and prevention.
Support for Prostituted and Sex Trafficked Indigenous Women
While it is crucial to have laws in place for prostitution and trafficking victims, without supportive efforts the laws will remain unutilized. To make it feasible for Indigenous prostituted and trafficked women to use civil legislation, other support should be implemented. First, awareness needs to be raised among survivors, Indigenous communities, and non-Indigenous allies, including allies in the criminal justice system and social services. Second, trainings should inform tribal lawyers and civil lawyers about using civil legislation for prostituted and trafficked Indigenous women. Ideally, given the interconnected relationships between Canadian, US, and Central American Indigenous people along with the cross-border nature of the prostitution and trafficking of Indigenous women, representatives from all three countries should collaborate, including immigration advocates. The right to collaborate with Indigenous nations separated due to national boundaries is outlined in Article 36A of United Nations Indigenous Declaration on the Rights of Indigenous Peoples. The resulting structure must center the sovereignty of Indigenous prostituted and trafficked women, their families, and tribes (United Nations 2008).
Safety for Prostituted and Sex Trafficked Indigenous Women
Another need while pursuing a civil lawsuit is the women’s safety. Indigenous advocates and survivor/advocates are best suited to devise safe houses and other options to support the women and their children to ensure for culturally appropriate and effective services (Wilson and MacDonald 2010, p. 4). These needs will vary based upon the tribes, geography, individual’s circumstances, and other factors. Although nonexistent in Canada, in the US Protection and Advocacy System (P&A) can be utilized to support the women. “P&A is a nationwide network of congressionally mandated, legally based disability rights agencies. P&A agencies have the authority to provide legal representation and other advocacy services, under federal laws, to all people with disabilities.” P&A’s can advocate on behalf of victims of prostitution and trafficking as many of the women would qualify for their services due to psychological and physical disabilities from being hurt in prostitution and trafficking. P&A services also have a specific section for traumatic brain injuries, which are common among prostituted and trafficked women. In addition, to increase safety, P&A services can provide representatives to present testimony in court on behalf of the victims (National Disability 2017).
Duluth as a Case Study
The prostitution and trafficking of Native women in Duluth best fits the 2000 UN Trafficking Protocol. “This definition is intended to include a wide range of cases where individuals are exploited by organized criminal groups, or where there is an element of duress with a transnational aspect. The Protocol specifically provides that the consent of a person to exploitation is irrelevant if there has been any coercion or deception involved, or any benefit granted by the trafficker” (Barnett 2006). This definition provides context and validation to the long-standing harm caused to Indigenous women and communities through systematic prostitution and trafficking. What the UN defined in 2000 has been committed against Indigenous communities for centuries as part of colonization. Duluth provides an opportunity to envision how using civil litigation could occur in an area with a historically institutionalized system of domestic and international prostitution and trafficking. First, the plaintiff could be an individual victim, a group of victims, a tribe, or a band such as the Fond du Lac Band of Ojibwa. According to the TVPRA of 2003, the plaintiffs would have to have been trafficked within the past 10 years. The tribal government could sue as a sovereign nation, using civil legislation against an individual, group of defendants, corporation, or governmental entity for perpetration, negligence, racketeering, kidnapping, sexual and physical abuse, trafficking, complicity, and lack of protection of its citizens. (Civil legislation could be used by tribes on their reservations against sex traffickers and/or drug traffickers, especially regarding mining camps.) Alternatively, victims could sue individually or as a group for harm on land, in the port, or on the ships. Possible defendants for those used in the port and ships include the Port Authority, ship owners, Coast Guard, security companies monitoring the docks, Homeland Security, and corporate dock owners. The cases that involve transportation on the ships would trigger jurisdictional issues. While there are multiple factors involved in establishing jurisdiction, the Great Lakes are considered inland waters and thus under US jurisdiction (United States Coast Guard n.d.) and US citizens have legal protections from being trafficked in the port and on waterways (Legal Information Institute n.d.). In Duluth, it is imperative to bring in outside forces given the institutionalization of the prostitution and trafficking of Native women; the size and geographical isolation of the city which makes it easier to control the criminal justice system and social services; the enormous amount of money from employment, tourism, taxes related to the port; and the influence of city, county, state, national, and international politics and trade relations. The “Duluth System” maintains and profits off the sale of Native women and youth and cannot be relied on to provide justice.
When considering how to impact over 500 years of sex trafficking and prostitution of Indigenous women in North America, developing a strategy utilizing civil litigation in conjunction with supportive services for the plaintiffs has the potential to be more effective than pursuing justice through the criminal courts. This is particularly true in areas such as the Duluth port with its historical and contemporary confluence of Native populations, foreign and domestic influx of men, corporations, industries, natural resources, and institutionalized prostitution and trafficking. While work toward improving the criminal justice system for Indigenous prostituted and trafficked women should continue, collaboration should begin so that Indigenous prostituted and trafficked women can access civil litigation should they choose to do so. This would not only benefit them, their families, and Indigenous communities, civil litigation may be the only feasible way to impact the institutionalization of the prostitution and trafficking of Indigenous women in North America, particularly when corporations, governmental institutions, and organized crime are involved. Given the historical and contemporary transnational aspect of the sex trafficking and prostitution of Indigenous women, comprehending what Indigenous women have been experiencing for hundreds of years will lead the way toward a future in which no one is bought or sold.
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