Webinar presenter Leslie Hagen answered a number of your questions after her presentation, Investigating and Prosecuting Sex Trafficking Cases in Tribal Communities. Here are just a few of her responses.
Audience Question: How is historical trauma passed on? Is it at the cellular level, genetic level or some other way?
Leslie Hagen: I’m a prosecutor. So that sounds like a great question for a scientist. But from my perspective, I can’t answer the exact question. But how I have seen it play out is a distrust that can be handed down. As an example, and this is all based entirely on my experience. When I became an assistant US Attorney, I was assigned to violent crime in Indian country. I would go out in some communities, and people were reluctant to talk to me. They were reluctant to show up for appointments. When we built a little bit of a relationship, and we asked why it was because the answer was simply because for years, “we’ve said things about being violated, We’ve said things we’ve reported being abused, and nobody took any action.” Unfortunately, in some areas, that has occurred for generations, and I can certainly appreciate how there could be a distrust of the federal government given some of the failed policies over the last number of decades as they concern Native Americans, stripping people of their culture, putting them in boarding schools, cutting off their hair, beating them for speaking their language or for practicing their traditional ways. I think, you know, I don’t know if that’s at the cellular level, but I know that that distrust and fear is real. It’s legitimate, and it has been passed on.
Audience Question: Our Alaskan villages are off the road system and often very isolated. Do you think that the lack of worldly or city experience plays into the vulnerability?
Leslie Hagen: : Yes, and I wish we had time to play that video because it definitely addresses that. And also, when you have a chance to read the article, I’ve got some links to folk’s testimony when they testified at the children’s exposure to violence. And they talked absolutely about that. Sometimes adolescents come into Anchorage, from the villages, it’s an expensive ticket to get back home. It’s not like you can drive there or Uber, you have to take a plane. They have a lot of vulnerabilities because they haven’t perhaps spent a lot of time in the city, they may become desperate if they don’t have any money or any way to get back home. That can absolutely make them vulnerable to trafficking.
Audience Question: Are traffickers, typically from outside or inside the tribal community?
Leslie Hagen: Another tough question to answer definitively. I think they can be both. Some of the research shows that I believe it was about a quarter of the individuals that are trafficking victims are trafficked by family members. In the Jackie Little Dog case, that’s an example that was not an outside person, that was a relative to the victim that basically took her to that home, where there are a number of construction workers living and they partied and she ended up essentially engaging in sex as a minor with those individuals and got money or beer in return. So that would be an example of a family member. There can be outsiders using the Alaska example, if somebody comes into Anchorage from a village and can’t get back home and they’re sort of out on the street, wandering around, then it is more likely than not going to be an outside person that is going to prey on that particular individual. So really, can be both family and outsider.
Audience Question: Are you aware of any tribal trafficking cases involving LGBTQ individuals, if not, can you suggest reports or resources that discuss these cases?
Leslie Hagen: Before I did this, I went through and researched some of the additional laws and like the Choctaw and Pascua Yaqui, in the laws that I put up there. I also tried to find tribal case law which can be very difficult to find, because not all of it is on Lexus or Westlaw, which are two research engines that lawyers use to look up case opinions. I did not find any reported tribal court decisions concerning tribal human trafficking codes. That doesn’t mean that they’re not out there. It just means that I couldn’t find them. So I did not find anything specific to the LGBTQI population, but I can see how an individual who is part that may be at increased risk if their family kicks them out and they become homeless. That would certainly make them vulnerable if they end up in foster care because their family treated them badly. The Willamette University report documented ties between kids in foster care and trafficking. So I think, you know, being a lesbian, gay, bi, transgendered, doesn’t make you in and of itself, vulnerable to trafficking, but folks that are not accepted, not supported, engage in drug or alcohol abuse because they’re not accepted or supported. I think that that could be a risk factor, but I am unaware of any cases.
Audience Question: In one of the case studies that you provided, do you have any insight as to why the Native Americans received a full sentence, but the non-native American might have been able to plead to a lesser charge. And were either of them required to register as a child sex offender?
Leslie Hagen: So the case where the person was convicted of child abuse, I do know because I have spoken with the prosecutor that prosecuted that case. That particular defendant was a native defendant, and there was a desire on the part of the victim to not have to go through a trial. That plea decision was made after consultation with the victim and the victim’s family. That case is a little unique in that it was pled to something other than trafficking, but I wanted to include that to highlight that sometimes that does happen and there are myriad reasons why cases pled out. And then also there’s probably just some of these cases that are going to be prosecuted as a sexual assault crime. If you’re familiar with the federal sexual assault statutes, let’s say a 2242 is where a person is unable to consent. And I think that’s what happened in the more set case, that was actually what he was convicted of because the victim had been given drugs and alcohol. In that case, he got a 45-year sentence. And he got a great sentence because there were many crimes. And by great, I mean, large, long sentence because many crimes were committed and he was engaged in not only sex trafficking, sexual abuse, and a lot of drug trafficking. So that really drove up the sentence in that particular case.
Audience Question: Have any studies been done on the trafficking of Native Americans in South Florida?
Leslie Hagen: I am not aware of any specific to South Florida.
Audience Question: Does a victim’s origin being from a reservation but then being trafficked off the reservation provides a basis for federal jurisdiction?
Leslie Hagen: It goes back to that analysis, are we prosecuting the case under something that involves the Major Crimes Act or the General Crimes Act? And then that travel in and out of Indian country may be very relevant? If we’re looking at something being prosecuted under 18 USC 1591, let’s say sex trafficking. The travel aspect may be less relevant. And what we’re going to focus in is: how did that impact interstate commerce? You may remember I referenced the Evans case. And it was really critical in that case that they were able to determine what brand of condom was used, and they could show that it was made outside of the US and transported into the US for sale throughout the country. So you could make that nexus we’re always looking in the federal system for what is our nexus, what gives us jurisdiction. So that impact on interstate commerce, the Lifestyle condoms, the use of the landline telephone, the use of a cellular phone, in that case, again, both instrumentalities of interstate commerce, were very important, and also that there were hotels frequented. So, it is going to depend on are we going to prosecute this case as a sexual assault using the Major Crimes Act or General Crimes act? Then we’re going to look, you know, where did the crime occur? Did it occur in Indian country? If we’re looking at a sex-trafficking prosecution, we’re really going to focus on what facts do we have in this case to show that there was an impact on interstate commerce?
Audience Question: Did the Supreme Court ruling on all the Oliphant versus the Suquamish Indian tribal case, create jurisdiction issues for law enforcement and prosecutors?
Leslie Hagen: What Oliphant said it was a case back in 1978. And it said that tribes do not have criminal jurisdiction over non-Indians. We still have federal prosecution and for some of these offenses, there may be state prosecution. There’s a lot of facts that we would need to know but in the abstract to answer Rebecca’s question. Yes, it did provide some challenges because essentially the Supreme Court said tribes don’t have any jurisdiction to prosecute non-Indians for crimes that non-Indian commits on that reservation. That has changed a little bit. With passage of the Violence Against Women Reauthorization Act in 2013, there was a provision in there that amended the Indian Civil Rights Act that said, tribes can prosecute non-Indians for certain violations of domestic violence, dating violence or violations of a protection order. But it is limited to those three things and we also have to show that that non-Indian defendant had a native victim and sufficient ties to the tribe. It is not inclusive of human trafficking at this point, and it is not specifically inclusive of sexual assault at this point. It’s dating violence. So we’d have to look at how the tribe defines dating violence. Domestic Violence, again, we would have to look at the tribe’s definition, because that non-Indian would be prosecuted for a tribal violation, and also violations of protection orders.
Audience Question: What about prevention? Are there programs that help provide prevention training for people involved with tribal communities?
Leslie Hagen: Yes, looking at what are the vulnerabilities of individuals that are potentially subject to being victimized by a trafficker? We could think of all kinds of prevention programs. So if we’ve got kids that are sexually abused at home or physically assaulted, what kind of programs do you already have existing in your community? For adults that are struggling with drug or alcohol issues or previous victimization issues, what programs support strengths are in that community to help that individual, hopefully, make them less vulnerable? You know, is there an issue with homelessness in the community? What can be done? The National Indian Gaming Commission has done some training around issue spotting in casino operations. There are some specific things out there for trafficking, but I think, which are important, but I also think if we look at who is potentially vulnerable to being trafficked, we probably have some programs already in place on the reservation. We just need to get the people plugged into them and get those services out there. So, there are some areas where we need to do some specific workaround trafficking. But I think if we can really put the heavy focus on identifying in our communities who are vulnerable to being trafficked and get them the support and help that they need, we could go a long way to eradicating this problem.
Click Here to Watch a Recording of Investigating and Prosecuting Sex Trafficking Cases in Tribal Communities.