EcoPerspectives Blog

Man Camps, Oil Pipelines, and MMIW: How United States v. Cooley is a False Victory for Indigenous Tribes

By Kimberly N. Mitchell, Staff Editor for the Vermont Journal of Environmental Law

March 23, 2022

 

Tribal officers’ hands continue to be bound after United States v. Cooley (hereafter Cooley), carrying on the violence against missing and murdered indigenous women (MMIW) . Cooley allows tribal officers to temporarily detain non-Indian members in Indian Country . However, that is the crux of the issue – the detainment is only temporary. Tribal officers still have to turn offenders over to State or Federal law enforcement .

 

The precedent case governing tribal criminal jurisdiction is Oliphant v. Suquamish Indian Tribe (hereafter Oliphant ). Oliphant held that tribes lack criminal jurisdiction over non-Indian members in Indian Country, dismissing inherent tribal sovereignty . Why is this a problem? Tribal governments lack the criminal jurisdiction to prosecute non-Indian members who traffic women and girls. 

 

“Man camps” are located near the oil extraction projects that employ them. “Man camps” can be defined as “temporary housing provided to employees of large extraction projects .” These camps have increased violence against Native women, as the men from these camps prey on the local Indigenous communities . For instance, the Tribal Police on the Fort Berthold Reservation in North Dakota “reported more murders, fatal accidents, sexual assaults, domestic disputes, drug busts, gun threats, and human trafficking cases than in any year before .” Surrounding counties have similar reports, but there is a special difference with Fort Berthold compared to the rest of North Dakota. The reservation’s population “has more than doubled” due to the “influx of non-Indian oil workers .”  

 

Human trafficking exists worldwide and all over the United States,; however, the prevalence within and around Indian country deserves wider recognition. Trafficking in general, according to the Trafficking Victims Protection Act of 2000, is defined as “the recruitment, harboring, transportation, provision, or obtaining of a person or services, through the use of force, fraud or coercion for the purposes of subjection to involuntary servitude, peonage, debt bondage or slavery .” Sex trafficking differs from human trafficking as it is “the recruitment, harboring, transportation, provision, obtaining, patronizing, or soliciting of a person for the purposes of a commercial sex act, in which the commercial sex act is induced by force, fraud, or coercion, or in which the person induced to perform such [] act [is] not [] 18 years of age .” 

 

If trafficking is left unchecked, human trafficking will continue to flourish, which is evident through the Missing and Murdered Indigenous Women and Girls phenomenon . The Missing and Murdered Indigenous Women and Girls phenomenon (MMIW) speaks to bring and spread awareness of a “generations-long silent epidemic that has stolen the lives of Indigenous Women, Girls, and Two-Spirits across [North America].” There are a few reasons why the MMIW issue persists; however, extractive, male-dominated industries near Native communities are a large contributing factor.

 

The main issue is that tribal governments have very limited control over non-Indians because of complex jurisdictional issues among federal, state, and Tribal governments . Tribal police departments have to grapple with jurisdictional issues, along with underfunding and a lack of resources to combat increased crime rates stemming specifically from the presence of man camps. Therefore, the perpetrators skate by, allowing atrocities against Indigenous women and children to continue, with little to no recourse .  

 

In 1978, the Supreme Court in Oliphant held that tribes do not have the right to arrest and prosecute non-Indians who commit crimes within Indian country . “If the perpetrator is non-Indian and the victim an enrolled member, only a federally certified agent has that right. If the opposite is true, a tribal officer can make the arrest, but the case still goes to federal court .” This holding results in a stalemate, or “jurisdictional triangle,” as tribal governments are left wanting jurisdiction but have to hand over these cases to a U.S. attorney, which is further juggled between state and federal authorities . Cooley only adds to this jurisdictional triangle.

 

The primary issue given these circumstances, amongst other aspects, is that victims are left to stand and wait by while little to no accountability takes place. These murdered and missing women receive no justice and certainly do not gain any form of autonomy back from their trauma. Cooley, on its face, acts as a step forward towards tribal sovereignty. Yet, tribal officers are left in the same situations as before. The officers still must answer to outside law enforcement, leaving a trail of jurisdictional challenges and complexity. 

 

Attorney Mary Katherine Nagle, a citizen of the Cherokee Nation, frames the issue at hand quite well: “Recognizing that governments on the local ground should have the right to protect people in their communities without having to look to the federal government or an outside sovereign is a core conservative value .” 

 

One would think giving tribal governments criminal jurisdiction over non-Indian members would be the most logical line of action. The Supreme Court seems to disagree.