Sex offender registries raises sovereignty issues

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WASHINGTON – Two laws authorizing national sex offender registries were highlighted during the year.

The Violence Against Women Act, would establish a national tribal sex offender registry, as well as a related tribal registry of civil and criminal orders of protection issued by tribes and proximate jurisdictions.

The Adam Walsh Child Protection and Safety Act is not Native-specific and does not authorize a tribal orders-of-protection registry. AWA mandates the creation of tribal sex offender registries, but it does so on terms that empower the U.S. attorney general to revoke the jurisdiction of tribes that cannot or will not comply with the difficult, expensive and uncertain details of its implementation.

But because of the threatened transfer of tribal registration duties to states if Native governments do not meet federal government deadlines, and despite being left out during the law’s crafting and enactment, almost 200 tribes had agreed to establish their own AWA registries by mid-year.

Both acts have issues concerning timely access to information in the National Crime Information Center database that requires a special code currently administered by states.

The VAWA’s national tribal registry is intended in part to overcome the NCIC access problems some tribes have had, bypassing state administration and national requirements.

The registry necessary “because administrative barriers delayed or prevented the inclusion of tribal data on the National Order of Protection Registry and National Sex Offender Public Registry,” which in turn hindered all-important access to state-administered criminal information links with the National Crime Information Center, according to a joint publication of the National Congress of American Indians and Sacred Circle National Resource Center to End Violence Against Native Women.

At its annual meeting in October, NCAI passed a resolution in support of amendments to the VAWA “to strengthen the authority of and increase resources to Indian tribes to enhance the safety of Native women and hold perpetrators accountable for their violence.” The resolution also supports amendments to provide essential resources to nonprofit nongovernmental organizations that provide services to physical and sexual violence survivors.

The AWA sparked a flurry of opposition in Indian country centered largely on issues of sovereignty and the unfunded mandate.

At a meeting of NCAI’s National Task Force to End Sexual and Domestic Violence Against Women, NCAI’s associate counsel Virginia Davis described the AWA as a “quagmire.”

“Unfortunately, the Adam Walsh Act basically tells about half the tribes in the country that if they don’t comply with these really onerous mandates that are in the law – that, again, don’t really make sense for tribal communities – if the tribes fail to comply with those, then all of the tribe’s authority to track and register and manage sex offenders on tribal lands will be given to the state,” Davis said. “So it raises some serious sovereignty concerns and we’re continuing to really struggle with the Adam Walsh Act. So the Adam Walsh Act is becoming a quagmire, a real challenge for Indian country that I think we’re going to keep talking about for the next couple of years.”

By July, the Department of Justice had issued some clarifying regulations for the AWA, which Senate Indian Affairs Committee Chairman addressed in his opening remarks at a meeting July 17.

Under the guidelines, tribal court convictions will be given full faith and credit with respect to notification of tribal law officers that sex offenders are within or near tribal jurisdictions, Dorgan said. Additionally, sex offenders who live or work on Indian lands must comply with the AWA’s registration requirements, helping to reject any notion that Indian lands are safe havens for criminals, he said.

“Because the law deals with sex offenders, it has a significant impact on tribes and their lands. ... Far too many crimes go unprosecuted, which leads to under-reporting of the very problem. It is vital it seems to me that governments and victims in Indian country be informed regarding the whereabouts of sex offenders.

“Despite the significant impact of the Adam Walsh Act on Indian tribes, it is the case that there was not sufficient consultation with tribes. In the rush to move without adequate consultation, it had an impact on tribal governments. They should have been consulted,” Dorgan said.

Tribes must comply with AWA provisions by July 7, 2009. On a showing of significant effort, two one-year extensions can be provided under the law.