The crisis of sexual violence plaguing Indian Country is made drastically worse by oil-pipeline construction, which often occurs near reservations. The “man camps” constructed to house pipeline workers are hotbeds of rape, domestic violence, and sex trafficking, and American Indian women are frequently targeted due to a perception that men will not be prosecuted for assaulting them. Victims have little recourse, facing underfunded police departments, indifferent prosecutors, and a federal government all too willing to turn a blind eye to the ongoing violence.
This Note proposes a litigation strategy for tribes to address the crisis and compel federal action. Litigation would rely upon the “Bad Men” clauses in 1867 and 1868 tribal–federal treaties, which mandate government action when “bad men among the Whites” commit crimes against tribal members. Indian law canons of construction urge that these treaties be construed in favor of the tribes and interpreted in the manner in which historical tribal signatories would have understood them. Under the doctrine of parens patriae, tribes could bring Bad Men lawsuits on behalf of tribal members who have been harmed. Because Indian signatories to the Bad Men treaties would have understood them to impose a positive and prospective obligation to protect, tribes ought to be able to use such litigation to compel federal protection for the women victimized as a result of pipeline construction.