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Andrea L. Johnson

Andrea L. Johnson, A Perfect Storm: the U.s. Anti-trafficking Regime's Failure to Stop the Sex Trafficking of American Indian Women and Girls, Columbia Human Rights Law Review 617 (Spring, 2012) (481 Footnotes Omitted)(Student Note).(Article with Footnotes-pdf)

In 2001, the United States Department of State ceremoniously revealed its inaugural Trafficking In Persons (TIP) Report, nine months after the passage of the Trafficking Victims Protection Act (TVPA)--the first comprehensive federal law to address human trafficking. The introduction to the statutorily mandated report included a bold statement: “The United States is principally a transit and destination country for trafficking in persons.” The report did not qualify this statement nor did it rank the United States based on the anti-trafficking standards to which it held other countries. President Bush lauded the report and two years later in a speech to the United Nations spoke extensively of the “special evil” that human trafficking presents as part of the global terrorist threat. Trafficking of Americans fully within U.S. borders was, apparently, not a problem.

Despite these public affirmations, the numbers paint quite a different picture. Department of Justice (DOJ) statistics show that 83% of alleged sex trafficking incidents reported in 2008-2010 involved U.S. citizens trafficked within the United States. Experts and advocates estimate that the number of U.S. citizen sex trafficking victims is between 100,000 and 300,000, compared with foreign sex workers trafficked to the United States, which number between 14,500 and 17,500. A 2001 report by researchers at the University of Pennsylvania lent support to these estimates, finding that about 293,000 American youth are at risk of becoming victims of commercial sexual exploitation. These striking numbers make the United States the only advanced democracy in the world where the majority of its sex trafficking victims are its own citizens.

Unfortunately, many policy makers, academics, law enforcement officers, and even service providers continue to operate under the misguided assumption that every sex trafficking victim in the United States originated in a foreign country and is living without lawful immigration status. We seem to forget--or perhaps willfully ignore--that the United States has a long history of sex trafficking entirely within its borders. Since the arrival of the first colonizers in the United States, the sexual exploitation of women of minority races--often for commercial purposes--has been an integral part of colonial, expansionist, nationalist, and racist projects. While sex trafficking has affected women from all segments of society, American Indian women have suffered sexual violence and exploitation at the highest rate of any ethnic group. Traded for their sex and labor by colonizers and westward settlers, American Indian women and girls were continuously subjected to sexual exploitation--often by state actors--well into the twentieth century as part of their forced removal by the U.S. government to reservations, boarding schools, foster homes, and urban centers.

It would be incorrect to suggest that we have forgotten this history of sexual exploitation, because we have not even had the chance. While the U.S. government abandoned its official exploitative policies and practices in the late 1970s, the legacy of sexual oppression has left Native women and girls vulnerable to sexual exploitation at the hands of private actors, primarily pimps. As a result, the sexual exploitation and trafficking of American Indian women and girls continues at disproportionate rates. Alaska, Washington, Oregon, Minnesota, and South Dakota have all investigated reports of Native girls and women lured into sex trafficking rings within the last few years. In Minnesota, where the most research has been conducted, a 2007 state trafficking report found that twelve law enforcement officers and service providers had worked with a total of 345 American Indian sex trafficking victims in the previous three years. A study in Minneapolis the same year showed that “24% of women on probation for prostitution in North Minneapolis are Native women”--more than ten times the proportion of American Indians living in the city (2.2%). Likewise, Alaska Native women and girls comprise approximately 33% of all prostituted and trafficked women in Anchorage, but Alaska Natives only constitute around 8% of the city's population. The DOJ has acknowledged that the disproportionate representation of American Indian women among sex trafficking victims is a problem nationally.

Despite the government's significant efforts to combat trafficking since the passage of the TVPA in 2000, sex trafficking of American Indian women and girls continues strong--the data above is only the tip of what is almost certainly a much larger iceberg. Decades of official government exploitation have created a psychological, socio-economic, and legal dynamic in American Indian communities that facilitates the sexual exploitation of Native women and girls at the hands of private actors. Unfortunately, current anti-trafficking efforts have been constructed and implemented in a way that overlooks this legacy and perpetuates the factors that make Native women vulnerable to sex trafficking.

This Note explores how the United States' modern anti-trafficking efforts have failed American Indian sex trafficking victims. Part II analyzes the unique characteristics of the sex trafficking of American Indian women. Part III lays out the anti-trafficking structure that federal and state governments have developed since 2000. Part IV then evaluates how this structure has failed to address the needs of American Indian victims both in its construction and implementation. This failure is part of a broader failure of the United States to effectively assist U.S. citizen and legal permanent resident (LPR) trafficking victims, also known as domestic victims. The construction of the TVPA, the government rhetoric surrounding it, and even the federal definition of sex trafficking have all focused myopically on foreign victims, largely ignoring the situation of domestic victims. This foreign victim paradigm of sex trafficking has, in turn, severely marginalized domestic victims in the implementation of government anti-trafficking efforts by law enforcement, prosecutors, and service providers. For American Indian victims, this marginalization is further aggravated by jurisdictional complexities, lack of tribal resources, institutional racism, and generational trauma. Part V explores ways to undo this marginalization and improve anti-trafficking efforts so as to meet the needs of domestic victims and, in particular, American Indian victims.

For several reasons, this is an important time to address the sex trafficking of American Indians and domestic victims more generally. First, the trafficking of American Indian women and girls is a growing problem associated with the increased presence of gangs and drug trafficking rings on tribal land. Weaknesses and potential improvements to anti-trafficking efforts need to be identified before sex trafficking operations become better organized and are driven deeper underground. Second, the Trafficking Victims Protection Act--the statutory leader of all U.S. anti-trafficking efforts--is to be reauthorized in 2012. This presents an opportunity to rebalance the anti-trafficking structure to protect foreign and domestic victims. It is also an opportunity to be an example to the rest of the world of respect for indigenous rights. Aboriginal women are disproportionately represented among prostituted women. Under international and federal law, the U.S. government has a responsibility to protect the rights and well-being of American Indians. The Violence Against Women Act specifically recognized that this responsibility extends to assisting tribal governments in safeguarding the lives of Native women. Addressing American Indian trafficking victims in the new TVPA would meet these obligations and set an example.