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VAWA and the Rolled-Up Newspaper of Goodness

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In the 1990s, a bumbling cartoon superhero named The Tick declared, "You know, evil... is just plain bad... You gotta smack it in the nose with the rolled-up newspaper of goodness. Bad dog!"

Last year, House Majority Leader Eric Cantor and many House Republicans earned a smack on the nose and a "bad dog," for their efforts to defeat the bill to reauthorize the Violence Against Women Act. Those efforts were rooted, in part, in the provisions that would have restored to tribal governments the ability to prosecute non-Indians who commit domestic violence in Indian country. The Senate had voted overwhelmingly in favor of the bill.

Reauthorizing VAWA was one of the first items before the new Senate this year, which promptly passed it 78-22, putting the ball back in the House of Representatives' lap. The House redeemed itself this week by voting overwhelmingly in favor of the bill. The bill now goes to President Obama for his signature.

The president's signature will remedy a long-overdue inequity. Almost 20 years ago, Singapore convicted an American of vandalizing cars and sentenced him to be caned. The resulting media storm sparked a debate about foreign countries prosecuting Americans who commit crimes abroad. That debate centered largely on the punishment imposed; very few people took the position that Americans should not be held responsible for their (mis)behavior.

Despite this consensus, a group of Americans has been essentially exempt from prosecution, even though their crimes are committed on American soil against American citizens. As a result of a 1978 decision by the U.S. Supreme Court, tribal governments could not prosecute non-Indians who committed crimes on their reservation. It was unclear why crossing the boundary into Indian country carried with it an immunity from prosecution that travel into a foreign country did not.

The Supreme Court's decision left only the federal government with the ability to prosecute crimes committed by non-Indians against Indians. This limitation is critical because one in three Native women will be sexually assaulted in her lifetime, and the vast majority of sexual assaults against Native women (86 percent) are committed by non-Native men; an unusual figure because most rapes are intra-racial: 69 percent of rapes of white victims are by whites; 81 percent of rapes of African-Americans are by African-Americans. At least 70 percent of rapes of American Indians are inter-racial.

While the federal government has the authority to prosecute these crimes, it rarely does so. Studies show that federal prosecutors decline to file charges in 40 to 70 percent of cases of violence on reservations. In effect, non-Indians often have a "get out of jail free" card. It is puzzling that Americans who commit nonviolent offenses in foreign countries are subject to trial and conviction, but Americans who commit violent offenses in the United States are effectively immune from prosecution.

This week's vote by the House of Representatives is a crucial step in holding Americans accountable for crimes committed against Americans on American soil. Sexual assault on Native American women should be regarded as more serious than vandalizing cars in Singapore, and it is about time that Congress recognized it as such.

Melissa L. Tatum is the Director of Indigenous Peoples Law & Policy Program at The University of Arizona James E. Rogers College of Law.