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Deer: Widening the gap

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Adam Walsh Act raises concerns

In the wake of a new federal law aimed at tracking sex offenders, tribal leaders and victim advocates are discussing the best course of action. The Adam Walsh Child Protection and Safety Act of 2006 (PL 109-248), passed by the Senate in July 2006, expands the National Sex Offender Registry. The act establishes a comprehensive national system for the registration of sex offenders. It requires all jurisdictions - states, territories and Indian tribes - to maintain a sex offender registry that conforms to the requirements under the new act. Unfortunately, the new federal law strips Indian tribes within PL-280 jurisdictions of the ability to participate in the new registry. The act creates additional obstacles for tribal governments attempting to protect their citizens.

The National Congress of American Indians passed a resolution in late February calling for amendments to the act. The resolution notes that Section 127 of the Adam Walsh Act ''addresses Indian tribes and was included without any hearings, consultation or consideration of the views of tribal governments and current tribal practices.''

''If the goal of the act is to provide law enforcement agencies across the country with the same access to information about the registration of sex offenders in the United States, Indian tribes must be included in their capacity as governments,'' said Juana Majel, NCAI recording secretary.

Section 127 requires that tribal governments not affected by PL-280 pass a resolution by July 27 indicating their intent and desire to participate in the national system and meet the requirements of the act. Without such a tribal resolution, the new act forever strips Indian tribes of the authority to maintain a registry and places it under the state government. State management of the tribal sex offender registry includes entering tribal lands to enforce the requirements of the act. The NCAI resolution calls this an ''expansion of state jurisdiction on tribal lands [that] represents an unprecedented diminishment of tribal sovereignty.''

According to Maureen White Eagle, a staff attorney at the Tribal Law and Policy Institute in Saint Paul, ''[t]he states and those tribes that decide to 'opt in' by the July 27, 2007 deadline agree to participate in an integrated, uniform registry system.'' NCAI and other national advocacy organizations are encouraging tribal governments to pass a resolution to protect their authority to engage in sex offender registration and tracking.

''We know that tribes are making this decision with incomplete information, but we are encouraging tribes to pass a resolution preserving their authority over their lands to buy some time to figure out the details,'' said NCAI Associate Counsel Virginia Davis. ''We think that tribes will be able to come up with any number of creative ways to meet the requirements of the act through cooperative agreements without diminishing their sovereign authority,'' she continued.

The Eastern Band of Cherokee Indians passed its resolution electing to maintain its tribal sex offender registry and participate in the new national registry. ''If a convicted sex offender is within the Qualla Boundary we have only one option - and that is to monitor his whereabouts. The fact that one of three Native women will be sexually assaulted in their lifetime mandates that we make the monitoring of these offenders our business,'' stated Clan Star Legal Director Robert Saunooke.

Concerns have also been raised about the differential treatment that the law gives to tribal governments in PL-280 states and tribal governments in non-PL-280 states. For tribes affected by PL-280, the pertinent state government is ''automatically'' responsible for the implementation of the sex offender registration on the reservation and the tribe must provide access and cooperate with the state.

''Tribes are very concerned about and dedicated to protecting women and children from sex offenders,'' said Majel. ''Unfortunately, the current language in the Adam Walsh Act does not honor or respect tribal authority in these cases. The authority to operate the registry within PL-280 jurisdictions is delegated to the state government. This is an outrage. Over one-half of all federally recognized tribes were denied participation in the national registry created by the act.''

''To effectively monitor sex offenders within tribal communities, the tribal governments must be involved. State and federal government cannot achieve the goals of the act within Indian tribes because they are not present in our communities. This act will again widen the gaping hole for perpetrators to enter our communities and prey upon women and children,'' said Karen Artichoker, director of Sacred Circle: National Resource Center to End Violence Against Native Women.

While many days late and even more dollars short, the Department of Justice has scheduled a consultation session with tribal leaders to discuss implementation of the act for March 27 in Prior Lake, Minn. In the meantime, NCAI and advocates say they will be working with Congress to amend the language to more accurately reflect the nature of tribal authority.

Sarah Deer, J.D., Muscogee, is a victim advocacy legal specialist at the Tribal Law and Policy Institute in St. Paul, Minn.