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Trump policies, related violence against natives lead to 'raping of Indian country,' law professors write

Wednesday, September 12, 2018

LAWRENCE — Energy extraction contributes to climate change that hits tribal land especially hard. When temporary extraction camps set up near reservations, sexual violence against Indian women and children spikes. Trump administration policies are relaxing regulations on energy extraction, making the aforementioned problems worse, yet tribes lack the legal authority to address crimes committed on their lands, despite being sovereign territory. The result is a “raping of Indian country,” two University of Kansas professors write.

In a forthcoming article in the Columbia Gender Journal, Elizabeth Kronk Warner, professor of law and director of KU’s Tribal Law & Government Center, and Sarah Deer, professor of women, gender & sexuality studies, outline the worsening problem of energy extraction and related sexual violence, and they propose legal solutions. Using the term "rape" for anything outside sexual assault is controversial, the authors acknowledge.

“In this article, we deliberately employ the language of ‘rape’ – despite its controversy – to tell the legal story of how violence against native women is directly linked to the fossil fuel industry and, by extension, climate change,” Kronk Warner and Deer write.

The article includes a summary of energy policy under the Trump administration and how it directly affects native communities and residents of tribal land. Numerous regulations have been eased or suspended, once-public land has been opened to drilling and fracking, the United States has left the Paris Accord, and the administration is even reluctant to admit climate change exists.

“It would be one thing to say this administration wasn’t following on the path of the Obama administration, but by rolling back regulations, it’s making things even worse,” Kronk Warner said.

The article cites examples of tribal lands throughout North America that have been hit especially hard by climate change and the resulting strain it puts on the community, including loss of livelihood, increased flooding and wildfires, and depletion of natural resources. Furthermore, when energy development takes place near but not on tribal land, the tribes are seldom consulted before work begins, or are only paid lip service at best, the authors argue, even when research has shown the tribal lands suffer negative effects from the developments.

While energy extraction can be viewed as metaphorical violence against “Mother Earth,” there have been well-documented increases in sexual and violent crime against native women and children who live near energy development sites.

“There is a real connection for many tribes that attribute feminine qualities to the land,” Deer said. “Those same qualities of fragility and femininity apply to crimes such as sexual assault.”

The article details the phenomenon of “man camps,” or temporary communities of migrant energy workers that are nearly all men. Rates of rape, sexual assault, kidnapping, human trafficking, child abuse, drug abuse and preying on native residents have spiked in native communities located near such camps. Perpetrators often prey on the most vulnerable members of native communities, including those addicted to drugs or experiencing mental health issues.

The problem is exacerbated by tribes’ legal inability to prosecute crimes committed on their land by non-Indian citizens. Federal law prohibits tribal courts from prosecuting anyone from outside the tribal community, regardless of the crime they may have committed on Indian land.

Kronk Warner and Deer call for a congressional fix to change that. Instead of relying on county, state or federal authorities who are often reluctant to prosecute crimes that may not have the “splash” or public relations appeal of “bigger” federal cases such as organized crime, allowing tribes to handle such cases would ensure more justice for native communities, they argue.

The 1978 Supreme Court decision Oliphant v. Suquamish Indian Tribe stripped authority of tribal nations to prosecute non-Indians for any crime. Only in 2013 was there a slight fix to a decision Deer called “wrong then and wrong now,” allowing for tribal prosecution of domestic violence cases committed by non-Indians against tribal members. Since then, cases that tribes have been allowed to handle have shown to be fair, impartial and devoid of any “revenge against the white man” that was commonly cited as a reason such courts couldn’t be trusted.

“There was an assumption that tribes were unable to be trusted with justice over non-Indian defendants. That has proven to be patently false,” Deer said. “Not allowing tribes to prosecute crimes that happen on their land really allows non-Indian men to prey on native women and children. Criminals know the law, and it’s an attraction to predators.”

Changing federal law to allow tribes to have a say in environmental matters that affect their land would also help give a voice to communities directly impacted by energy extraction and resulting climate change.

“Tribes are directly affected by these kinds of decisions and can bring a lot to the table in negotiations,” Kronk Warner said. “Tribes should have a say in whether they develop their own energy rights, and obviously need help from the federal government in cases that affect them, and that’s part of why we talk about an Oliphant fix.”

For decades, the federal government has stated it supports tribal sovereignty and self-determination. The authors write the government can prove it means what it says by allowing tribes to prosecute crimes committed by others on their land and be a part of decisions that affect their very livelihood.

“If somebody commits a crime in your community, you should have authority over it,” Deer said. “If you can’t decide what’s right and wrong for your community, then what is sovereignty?”