Two Countries in Crisis: Man Camps and the Nightmare of Non-Indigenous Criminal Jurisdiction in the United States and Canada.

• Author: Brooks, Justin E.

TABLE OF CONTENTS I. INTRODUCTION 535 II. TWO COUNTRIES. ONE CRISIS 538 A. The Rise of Non-Indigenous Criminal Jurisdiction over Indigenous Peoples in the United States and Canada 538 1. The Development of Criminal Jurisdiction over Non-Indigenous Assailants of Indigenous Victims on Indigenous Land in the United States 540 2. The Development of Criminal Jurisdiction over Non-Indigenous Assailants of Indigenous Victims on Indigenous Land in Canada 547 B. The United States and Canada within the International Framework of Indigenous Rights 552 C. Man Camps' Transnational Contribution to the MMIW Crisis 554 III. SEARCHING FOR A SOLUTION 556 A. Full Indigenous Criminal Jurisdiction over Non- Indigenous Offenders 556 B. Enforcement through Transnational Organizations 560 C. Improvement of Data Gathering on the MMIW Crisis and Man Camps Specifically 562 D. Private Action by Extractive Businesses 563 IV. INCENTIVIZING EXTRACTIVE INDUSTRY INVOLVEMENT AS AN INTERIM SOLUTION TO FULL INDIGENOUS CRIMINAL JURISDICTION OVER NON-INDIGENOUS OFFENDERS 567 A. Full Indigenous Criminal Jurisdiction over Non-Indigenous Offenders Is in Furtherance of the United States and Canada's Commitments to Internationally Recognized Indigenous Rights 567 B. To Support Internationally Recognized Indigenous Rights, the United States and da Should Provide Extractive Industries with Incentives to Address the Violent Impact of Man Camps 572 V. CONCLUSION 576 I. INTRODUCTION

'No one should suffer the grief of having a sister, mother or daughter suddenly disappear never to be seen again. No one should have to live in fear that they will be the next woman or girl to go missing." (1)

Olivia Lone Bear, a citizen of the Fort Berthold Reservation in North Dakota, went missing in 2017. (2) Her family reported her disappearance to local law enforcement soon after she was last seen, but she was not found until nine months later. (3) At the search's culmination, it was not law enforcement that found her, but rather a group of volunteers that discovered Olivia's body in a truck at the bottom of a lake that authorities had already searched. (4) Olivia's loved ones blamed the delay and necessary involvement of volunteers on the lackluster response of law enforcement. (5) Law enforcement agents, in turn, blamed the legal framework that constrained them. (6) While Olivia's remains have been recovered, her case remains unsolved. (7)

In the United States, thousands of Indigenous Peoples (8) are missing or murdered. (9) A deficiency of data on the crisis makes completely accurate statistics impossible, but available reports reveal that many of the perpetrators are non-Indigenous. (10) This problem is not unique to the United States, however, as Indigenous women and girls also disproportionately represent homicide and missing persons cases in Canada. (11) The growing number of missing and murdered Indigenous Peoples in both countries is known as the Missing and Murdered Indigenous Women Crisis (MMIW Crisis). (12)

With limited exceptions, enforcement of criminal law against non-Indigenous offenders who attack Indigenous victims in the United States and Canada is entrusted not to Indigenous communities, but to the non-Indigenous governments with jurisdiction over those communities. (13) Yet, these governments have failed to pursue non-Indigenous offenders to the satisfaction of the communities directly impacted by their inaction. (14) There is even evidence to suggest that non-Indigenous offenders target Indigenous Peoples specifically because of the lowered risk of law enforcement intervention. (15)

Exacerbating the crisis is the importation of non-Indigenous people onto Indigenous land by extractive industries. (16) With the objective of extracting natural resources on or around Indigenous lands, private companies have established temporary housing for transient workers to staff mining operations. (17) These "man camps" are typically comprised of non-Indigenous workers with only a transitory relationship to the Indigenous land they have come to live on. (18) Violent crimes against Indigenous Peoples--particularly sexual crimes--increase around these man camps. (19) For example, the man camps around the Bakken oil fields in North Dakota have fueled a wave of murders, rapes, and human trafficking. (20) In British Columbia, Canada, extractive industries have been linked to an increase in violence against women. (21)

In response to a lack of transnational literature on the MMIW Crisis, this Note analyzes the intersection of extractive industries, jurisdictional complexities, and violence against Indigenous Peoples in the United States and Canada. Part II provides a brief background on the laws governing Indigenous Peoples in the United States and Canada, the transnational agreements each country has endorsed in relation to Indigenous rights, and the emerging correlation between extractive industries on Indigenous land and violence in each country. Part III then analyzes proposed solutions to man camps' contributions to the MMIW Crisis. Finally, Part IV proposes that until Indigenous Peoples are empowered to exercise full criminal jurisdiction to effectively protect their communities from all non-Indigenous violence, financial incentives should be provided by the United States and Canadian governments to encourage extractive industries to address the MMIW Crisis.

2. Two COUNTRIES, ONE CRISIS

   The MMIW Crisis persists across both the United States and Canada despite the boundaries separating the two countries. Because context is necessary to understand the crisis, subpart A will provide a brief examination of the foundational history of criminal jurisdiction over Indigenous Peoples in the United States and Canada. Subpart B will then examine the relevant framework of international law and organizations handling Indigenous rights. Lastly, subpart C will discuss man camps as a transnational problem for both countries.

   1. The Rise of Non-Indigenous Criminal Jurisdiction over Indigenous Peoples in the United States and Canada

      The laws governing Indigenous Peoples in the United States have been described as "an indefensible morass of complex, conflicting, and illogical commands" (22) rooted in colonial principles of "civilized" settler superiority over "uncivilized" Indigenous Peoples. (23) The laws governing Indigenous Canadians similarly grew from a colonial system driven by racist attitudes that encouraged the destruction and subjugation of Indigenous Peoples. (24) While school history textbooks may paint the European settlement of North America in a flattering light, (25) that settlement was fraught with deception and death. (26) Before European settlement, millions of Indigenous Peoples populated the lands now known as the United States and Canada. (27) These population levels declined dramatically after European settlement. (28)

      European settlement of North America began in the late 1400s and early 1500s. (29) While European leaders had less than peaceful intentions for Indigenous Peoples, (30) the settlers were outnumbered and in unfamiliar lands. (31)

      However, as more and more Europeans immigrated to North America, the population ratio shifted in the Europeans' favor, and conflict over land, natural resources, and ideologies became the norm. (32) Spanish settlers cleared Indigenous land and imposed religious assimilation on Indigenous Peoples through brutal, murderous methods. (33) Their English successors used similarly violent methods. Colonists "engaged in cruelty on a massive scale," massacring entire settlements and marking the landscape with the mutilated. Indigenous bodies. (34) The US government sanctioned the murder of hundreds of Indigenous civilians, and the US Government's forced removal of Indigenous Americans caused the deaths of thousands more. (35) Even when European settlers were not actively hostile toward Indigenous Peoples, the diseases that those settlers brought with them to North America ravaged Indigenous populations for over three centuries. (36) The decline of Indigenous populations in North America was accompanied by the rise of two non-Indigenous countries with developing legal systems that would later become the center of the MMIW Crisis.

      (1.) The Development of Criminal Jurisdiction over Non-Indigenous Assailants of Indigenous Victims on Indigenous Land in the United States

      In the early years of the United States, as the European settlers arrived, their purpose was not only to settle new land but also to eventually deprive Indigenous inhabitants of that which was rightfully theirs. After the Revolutionary War, George Washington, then commander in chief of the Continental Army, outlined his vision of American Indian policy to politician James Duane. In delineating a boundary separating US land from Indigenous land, Washington emphasized accommodating Indigenous Americans just enough to avoid war with them, in the hope that "the gradual extension of the United States would inevitably "cause the Savage as the Wolf to retire." (37) The scheme for taking Indigenous land thus became one of patience and attrition, as the United States set boundary lines that it failed to enforce against settler encroachment. (38) This encroachment was encouraged by a booming speculative black market through which US citizens made claims to Indigenous lands they had no legal title to. (39)

      A speculating settler's lack of legal title to Indigenous land became of little consequence in 1823, however, when the US Supreme Court decided Johnson v. M'Intosh. (40) Johnson is a foundational case in American Indian Law that established the "doctrine of discovery" as the legal basis for legitimizing US citizens' title to Indigenous land claims. The case arose after two US citizens came before the Court with competing claims to the same land, with one party claiming to have validly purchased the land directly from the Piankeshaw and Illinois Tribes. (41) The...