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### **Prosecuting Sex Trafficking Crimes in Indian Country**

January 2024 | Volume 17 | Issue 1

The issue of sex trafficking in Indian country has received significant attention. When a crime occurs in Indian country, multiple jurisdictions may have the legal authority to investigate and prosecute the offense. Determining which jurisdiction has authority to investigate and prosecute the crime of sex trafficking in Indian country requires examination of the following: the location of the offense; the Indian or non-Indian status of the trafficker, if known; and, if the victim is an adult, whether there was force, fraud, or coercion exerted to induce the commercial sex act.

In a hypothetical case, John Doe, a non-Indian, takes two Native American young women to the casino resort operated by tribe A, a federally recognized tribe, and checks into a hotel room using a credit card for payment. The casino is in Indian country. The women are 18 and 19 respectively. Casino security notices that over the course of one evening, several men individually leave the gaming floor and visit Doe’s hotel room. They are in the room for a short period of time. Security also notes that the women never leave the room. Security suspects that Doe may be trafficking the young women. Consequently, security calls the tribal police department and the Federal Bureau of Investigation (FBI). Following an investigation, law enforcement determines that both women were runaways from the foster care system. Two years earlier, Doe had found the women at a bus stop, offered to give them shelter and employment, and then later threatened to call child protective services and have them arrested if they did not perform sex acts in exchange for money and drugs. Doe is arrested, and the women are provided medical and mental health care.

##### Does the Federal Government have jurisdiction to prosecute John Doe?

hBased on the limited facts provided, it is likely the Federal Government has jurisdiction to prosecute Doe. The federal human trafficking statute is found at 18 U.S.C. § 1591, and the official title in the federal code is “[s]ex trafficking of children or by force, fraud, or coercion.” The elements for the offense are the following:
          - “(a) Whoever knowingly--
          - “(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or
          - “(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
          - “knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).”

Section 1591 is a crime of general applicability. If the government can prove that the crime was committed “in or affecting interstate or foreign commerce,” there is no need to consider other bases of jurisdiction, like the General Crimes Act (18 U.S.C. § 1152) or the Major Crimes Act (18 U.S.C. § 1153) for crimes occurring in Indian country. 

A critical question for the federal prosecutor using § 1591 in Indian country is what activity falls within the definition of interstate commerce. Must the trafficker, customer, or victim travel across state lines or in and out of Indian country? Or does purely intrajurisdiction activity meet the legal definition? The case of United States v. Evans addressed the issue of whether solely “intrastate” commercial sexual activity could satisfy the interstate-commerce element of § 1591(a)(1). In Evans, a 14-year-old girl (Jane Doe) worked in Miami-Dade County as a prostitute for the defendant. “[Defendant] arranged ‘dates’ for Jane Doe at local hotels.” Jane Doe gave all money earned to the defendant. Evans communicated with the victim using a cell phone. “[The defendant] supplied Jane Doe with condoms to use on the dates.” The most-used brand of condom was produced overseas and imported into Georgia for sale and delivery throughout the United States. Jane Doe was ultimately hospitalized for 11 days and diagnosed with AIDS. After her release from the hospital, Evans contacted Jane Doe via landline telephone and asked her to work for him again. Jane Doe worked for the defendant until she was hospitalized again to be treated for AIDS. 

The U.S. Court of Appeals for the 11th Circuit found that § 1591(a)(1) was constitutional as applied to defendant’s purely intrastate activities. The court said that § 1591 “was enacted as part of the Trafficking Victims Protection Act of 2000 [(TVPA)]”; this act “criminalizes and attempts to prevent slavery, involuntary servitude, and human trafficking . . . particularly of women and children in the sex industry.” Importantly, the court highlighted that “Congress found that trafficking of persons has an aggregate economic impact on interstate and foreign commerce.” The court stated that Congress’s conclusions in this regard were not irrational. Therefore, the 11th Circuit concluded that defendant’s enticement of a 14-year-old girl to commit intrastate prostitution “had the capacity when considered in the aggregate with similar conduct by others, to frustrate Congress’s broader regulation of interstate and foreign economic activity.” In short, defendant’s “use of hotels that served interstate travelers and distribution of condoms that traveled in interstate commerce are further evidence that Evans’s conduct substantially affected interstate commerce.” This case is often cited to support a broad definition of interstate commerce.

Evans was also charged with a count in violation of 18 U.S.C. § 2422(b), which criminalizes the actions of anyone who, by “using the mail or any facility or means of interstate or foreign commerce, . . . persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, age to engage in prostitution . . .” Defendant admitted to contacting the victim via cellular telephone and landline. But on appeal, he argued that the government failed to prove that his intrastate calls were routed through interstate channels. The 11th Circuit disagreed and held that “telephones and cellular telephones are instrumentalities of interstate commerce.” This finding, too, may prove important to the prosecutor analyzing whether § 1591 is a viable charge for sex trafficking in Indian country.

##### Does the Tribal Government have jurisdiction to prosecute John Doe?

Maybe. In 1978, the U.S. Supreme Court ruled (in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191) that tribal courts have no criminal jurisdiction over non-Indian offenders. The inability of tribes to prosecute non-Indians for offenses committed against Indians in Indian country left some victims without justice and tribal communities feeling vulnerable. Tribal leaders and victim advocates worked hard to include in federal legislation an ability for tribes to prosecute non-Indian defendants.

In 2013, Congress passed the Violence Against Women Reauthorization Act (VAWA). Title IX of VAWA 2013 is titled “Safety for Indian Women.” Section 904 of this Title, tribal Jurisdiction over Crimes of Domestic Violence, amended the Indian Civil Rights Act (ICRA) of 1968. 25 U.S.C. § 1304(b)(1) states that “the powers of self-government of a participating tribe include the inherent power of that tribe, which is hereby recognized and affirmed, to exercise special domestic violence criminal jurisdiction [SDVCJ] over all persons.” However, a tribe’s ability to prosecute a non-Indian offender was limited to violations of “domestic . . . or dating violence . . . occur[ring] in the Indian country of the participating tribe” and violations of a qualifying protection order. Implementing tribes had to provide non-Indian defendants appearing in tribal court with a host of due process protections.

On March 15, 2022, the president signed the VAWA Reauthorization 2022 into law. However, many of its provisions did not go into effect until October 1, 2022. The most significant change is that the ICRA was once again amended, and SDVCJ is replaced with special tribal criminal jurisdiction (STCJ). The list of “covered crimes” for STCJ includes the following: assault of tribal justice personnel, child violence, dating violence, domestic violence, obstruction of justice, sexual violence, sex trafficking, stalking, and violation of a protection order. The term “sex trafficking” means conduct within the meaning of 18 U.S.C. § 1591(a). A participating tribe may not exercise STCJ over an alleged offense, other than obstruction of justice or assault of tribal justice personnel, if neither the defendant nor the alleged victim is an Indian.

Effective October 1, 2022, for a tribal court to prosecute a non-Indian defendant pursuant to STCJ, the tribe must afford the defendant certain due process protections:
          - “(1) all applicable rights under this Act;
          - “(2) if a term of imprisonment of any length may be imposed, all rights described in section 1302(c) of this title;
          - “(3) the right to a trial by an impartial jury that is drawn from sources that--
          - “(A) reflect a fair cross section of the community; and
          - “(B) do not systematically exclude any distinctive group in the community, including non-Indians; and
          - “(4) all other rights whose protection is necessary under the Constitution of the United States in order for Congress to recognize and affirm the inherent power of the participating tribe to exercise special domestic violence criminal jurisdiction over the defendant.”

25 U.S.C. § 1302(c), enacted as part of the Tribal Law and Order Act of 2010, provides to defendants the following rights:
          - “(1) provide to the defendant the right to effective assistance of counsel at least equal to that guaranteed by the United States Constitution; and
          - “(2) at the expense of the tribal government, provide an indigent defendant the assistance of a defense attorney licensed to practice law by any jurisdiction in the United States that applies appropriate professional licensing standards and effectively ensures the competence and professional responsibility of its licensed attorneys;
          - “(3) require that the judge presiding over the criminal proceeding--
          - “(A) has sufficient legal training to preside over criminal proceedings; and
          - “(B) is licensed to practice law by any jurisdiction in the United States;
          - “(4) prior to charging the defendant, make publicly available the criminal laws (including regulations and interpretative documents), rules of evidence, and rules of criminal procedure (including rules governing the recusal of judges in appropriate circumstances) of the tribal government; and
          - “(5) maintain a record of the criminal proceeding, including an audio or other recording of the trial proceeding.”

A tribe’s decision to implement STCJ does not “create or eliminate any Federal or State criminal jurisdiction over Indian country.” In short, the tribe’s exercise of this inherent power is “concurrent with the jurisdiction of the United States, of a State, or of both.” VAWA 2022 makes STCJ available to any participating tribes in the State of Maine (previously, tribes in Maine were unable to exercise SDVCJ authority because of the Maine Indian Claims Settlement Act of 1980).

STCJ affords tribes the ability to provide justice to victims of crime, hold offenders accountable, strengthen their sovereignty, and make their communities safer. Provided that tribe A has implemented STCJ and offered Doe all the required due process protections, tribe A could bring sex trafficking charges against him. 

In conclusion, working in Indian country is complex because multiple jurisdictions and a myriad of criminal justice and social services personnel may have an active role to play in a single case. Thus, the federal, state, and tribal governments’ response to sex trafficking must be coordinated and collaborative.

Leslie A. HagenNational Indian Country Training CoordinatorLeslie.Hagen3@usdoj.gov

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