The following column is the opinion and analysis of the writer:
A disturbing incident happened a few years ago at a casino near Tucson.
A female member of the Pascua Yaqui tribe was working at the tribal casino one evening, fixing slot machines, when a group of drunks began harassing her. She ignored the men at first, but when their behavior grew worse, she called security. As the men were being escorted out of the casino, one of them grabbed the woman’s genitals and squeezed.
The assault was caught on surveillance video and the employee wanted to press criminal charges, but the tribe could not prosecute. The federal Violence Against Women Act allows Native American tribes to prosecute non-Indians for certain crimes in tribal courts, but only if the victim has a prior relationship with their non-Native attacker.
In this case, the casino employee had never met the assailant before he attacked her. The tribe had to let him go.
Sadly, this type of situation is not unusual. The 2013 re-authorization of the Violence Against Women Act — better known as VAWA — was a huge step forward for tribal law enforcement, but it has significant holes that allow violent people who are not tribal members to get away with crimes on Indian reservations and Indian lands.
It is time for Congress to close this gap.
Last year, Congress tried to pass an improved version of VAWA, but the effort failed. The new act would have allowed tribes to prosecute non-tribal members who commit crimes of domestic violence, dating violence, child abuse, elder abuse, sexual violence, stalking and sex trafficking on tribal land. It also would have allowed tribal prosecution for obstruction of justice and assaults against law enforcement and corrections officers in the course of pursuing VAWA crimes.
Incredibly, under the current law, a non-Indian could attack a tribal police officer who responds to a crime and walk away with no tribal charges at all. Non-Indians are effectively above the law in Indian country due to the tribes’ lack of jurisdiction over them.
This poses a particular threat in Arizona, with our 22 Native American tribes. Arizona has the second-largest population of Native Americans in the country, and the Navajo Nation in northeast Arizona is one of the largest Indian lands in the United States.
The American Bar Association supports a new Violence Against Women Act that recognizes the inherent authority of tribal governments to prosecute non-Indian perpetrators of crimes arising from gender-based violence, while ensuring that due process rights are protected. The ABA also supports expanding VAWA to Alaska native villages. The current act does not apply to native lands in Alaska because Congress in 2013 did not consider them part of “Indian country.”
Today there is a new Congress with a new opportunity to empower Native Americans by giving tribal governments greater authority to police their own tribal lands.
Native Americans are victims of violent crime at twice the rate of other populations, and violence against Indian women is particularly troubling. Women on some reservations are murdered at a rate 10 times the national average. Congress has described the rate of violence suffered by Indian women as reaching “epidemic proportions.”
It is time for members of Congress to come together to protect victims of violence on native lands. The new Violence Against Women Act will be re-introduced shortly. We urge Congress to pass it in 2021.
Patricia Lee Refo is president of the American Bar Association and a partner with the law firm Snell & Wilmer in Phoenix.