[Senate Hearing 110-557]
[From the U.S. Government Publishing Office]
S. Hrg. 110-557
TRACKING SEX OFFENDERS IN INDIAN COUNTRY: TRIAL IMPLEMENTATION OF THE
ADAM WALSH ACT
=======================================================================
HEARING
before the
COMMITTEE ON INDIAN AFFAIRS
UNITED STATES SENATE
ONE HUNDRED TENTH CONGRESS
SECOND SESSION
__________
JULY 17, 2008
__________
Printed for the use of the Committee on Indian Affairs
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0COMMITTEE ON INDIAN AFFAIRS
BYRON L. DORGAN, North Dakota, Chairman
LISA MURKOWSKI, Alaska, Vice Chairman
DANIEL K. INOUYE, Hawaii JOHN McCAIN, Arizona
KENT CONRAD, North Dakota TOM COBURN, M.D., Oklahoma
DANIEL K. AKAKA, Hawaii JOHN BARRASSO, Wyoming
TIM JOHNSON, South Dakota PETE V. DOMENICI, New Mexico
MARIA CANTWELL, Washington GORDON H. SMITH, Oregon
CLAIRE McCASKILL, Missouri RICHARD BURR, North Carolina
JON TESTER, Montana
Allison C. Binney, Majority Staff Director and Chief Counsel
David A. Mullon Jr., Minority Staff Director and Chief Counsel
C O N T E N T S
----------
Page
Hearing held on July 17, 2008.................................... 1
Statement of Senator Dorgan...................................... 1
Witnesses
Gregory, William, Tribal Prosecutor, Little Traverse Bay Bands of
Odawa Indians.................................................. 21
Prepared statement........................................... 23
Johnson, Jacqueline, Executive Director, National Congress of
American Indians with attachment............................... 25
Prepared statement........................................... 27
Lopez, Hon. Isidro B., Vice Chairman, Tohono O'odham Nation...... 8
Prepared statement........................................... 10
Moore, Hon. Robert, Tribal Councilman, Rosebud Sioux Tribe....... 13
Prepared statement with attachments.......................... 15
Suppah, Sr., Hon. Ronald, Chairman, Confederated Tribes of The
Warm Springs Reservation....................................... 4
Prepared statement........................................... 5
Appendix
Pearson, Hon. Myra, Chairwoman, Spirit Lake Sioux Tribe, prepared
statement...................................................... 45
Spirit Lake Sioux Tribe, prepared statement...................... 46
TRACKING SEX OFFENDERS IN INDIAN
COUNTRY: TRIAL IMPLEMENTATION OF THE ADAM WALSH ACT
----------
THURSDAY, JULY 17, 2008
U.S. Senate,
Committee on Indian Affairs,
Washington, DC.
The Committee met, pursuant to notice, at 10:07 a.m. in
room 562, Dirksen Senate Office Building, Hon. Byron L. Dorgan,
Chairman of the Committee, presiding.
OPENING STATEMENT OF HON. BYRON L. DORGAN,
U.S. SENATOR FROM NORTH DAKOTA
The Chairman. We will call the hearing to order. My
apologies for being delayed. I have been at an Energy Committee
hearing this morning on the subject of gas prices and oil
prices. It took longer than I expected.
This is a hearing of the Indian Affairs Committee. Today,
the Committee will hold a hearing to examine the implementation
of the Adam Walsh Child Protection and Safety Act of 2006. I
was a cosponsor and worked in constructing that Act. The Act
sought to fill the gaps in prior sex offender registration
requirements.
The failures in tracking sex offenders hit particularly
hard in North Dakota, but it hits hard all across this Country
when we see the unbelievable stories about the victims of sex
offenders. This is a photograph of a young woman named Dru
Sjodin. She was abducted in Grand Forks, North Dakota on
November 22, 2003. Dru Sjodin's family and the memory of Dru
Sjodin has inspired at least one significant portion of the
Adam Walsh Child Protection and Safety Act.
Dru Sjodin was murdered by a man named Alphonso Rodriguez,
Jr. He was a level three sex offender. He was a sexual predator
who had been in prison for 23 years, and prior to being
released from prison, was judged to be a high risk for another
violent offense, by psychiatrists and others who evaluated him.
Despite that, he was released from prison without
notification of the local State's attorney, without
notification of local law enforcement authorities. He moved to
a place near a State border and those who might have been
wishing to track whether sexual offenders were living near them
by accessing a State offender list would not have seen that
this particular man was living just a few miles on the other
side of a State border. They would not have seen his name. He
was at a shopping center in Grand Forks, North Dakota. He
kidnapped, raped, and murdered Dru Sjodin. He has since been
tried and found guilty and been given the death penalty.
But the question that is raised in cases like this is how
does it happen that we have a sexual predator registry of
violent sexual predators that is not complete, that does not
give us information about who the sexual predators are and
where they are living? The other important question is, why do
we not have a system that identifies not only the sexual
predators who are at high risk, but especially those who are at
high risk of re-offending when they are to be let out of
incarceration so that the notification can be made to victims,
victims' families, and to the local State's attorneys in the
event that some substantial additional monitoring would be made
of those high-risk sexual offenders, or perhaps some additional
incarceration when necessary?
The Adam Walsh Act I recognize is not necessarily complete
in every respect, but it is an Act I think that moves us
forward in trying to protect people against violent sexual
predators and sex offenders. For the first time in dealing with
these laws, the law brought Indian tribes to the table. For
example, under the guidelines of the Act, tribal court
convictions will be given full faith and credit with respect to
notification under this Act. In addition, sex offenders who
live or work on Indian lands must comply with the registration
requirements. This will help reject any notion that Indian
lands are safe haven for criminals.
Those who follow this Committee know that I have held
hearings in which we have had testimony that one in three
Indian women during their lifetime will be raped or be the
victim of a violent sexual offense. I think it is very
important that we make certain that Indian lands cannot and
will not and should not be safe havens for criminals who are
engaged in these kinds of offenses.
Because the law deals with sex offenders, it has a
significant impact on tribes and their lands. As this
Committee's previous hearings have shown, Indian Country is
suffering an epidemic of sexual and domestic violence. Victims
of abuse on reservations in some cases have had to wait hours
and in some cases weeks for a response by law enforcement
because tribal police are understaffed--another subject which
this Committee is dealing with.
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 there was not sufficient
consultation with tribes. This rush to move without adequate
consultation has an impact on tribal governments. They should
have been consulted, but under the Act tribal governments were
given until July 27, 2007 to adopt a tribal resolution to carry
out the obligations of the Act. If a tribe did not make the
decision by July 27, then the responsibilities will be turned
over to State governments.
As that date approached, no one in the Justice Department
could explain what obligations a tribe would face. Indian
tribes were left with a choice: choose to comply with the
unknown requirements, or act to cede your sovereignty. I, along
with Vice Chairwoman Murkowski and Senator Biden, introduced
legislation that would have permitted additional time to answer
questions that are now raised by the implementation of the Act.
A similar bill was passed in the House last July, but
blocked when the bill was referred to the Senate. As a result,
tribes were forced to make uninformed decisions to comply with
the Act or to face the consequences. One hundred ninety-eight
tribes chose to exercise their authority as governments and
maintain their own sex offender registry. These 198 tribal
governments now have one year to reach compliance. If the
Attorney General determines that a tribe has not complied, then
the tribe's authority will be delegated to the State.
However, tribes and others have raised a number of
questions regarding compliance. For example, can a tribe
require a non-Indian sex offender to submit information to the
tribal registry? Is there tribal notification or an appeal
process to the Attorney General's decision of noncompliance? Is
there a transition process from tribal authority to State
authority?
There are many other questions our witnesses will point out
and discuss today, but my point is the last thing Indian
Country justice needs is more questions and confusion itself.
Our law enforcement hearings have shown that this division in
the criminal justice system is a major cause of violent crime
problems in Indian Country. This describes the division of
different jurisdictions. It is a patchwork of difficulty and
complexity that frankly is just not working.
The Adam Walsh Act adds yet more questions and more layers
of confusion. It seems to me that we need to answer those
questions. I have asked the Department of Justice to come. They
indicated that they would submit a statement and answer follow-
up questions. I am disappointed that they are not here in
person. I understand it has something to do with not being able
to get a statement through the Office of Management and Budget,
which apparently runs the entire government these days.
Look, the issue is this: The Adam Walsh Act exists. It
exists because I and others believe it is important that it
exist. It ought not be the case that anywhere in this Country a
violent sexual predator should be able to live and not be
identified or registered or a part of the monitoring that
exists with governments, be that tribal government, State
government, or any level of government.
The question before this hearing is not how do we find a
way to allow reservations to avoid the responsibility. That is
not acceptable, nor do I think our tribes are asking for that
circumstance. I think the question is how do we make sure that
the tribal governments are able to comply in a thoughtful way
so that we have a seamless capability of identifying and
monitoring sexual predators across this Country.
So that represents the purpose of this hearing. We have
five witnesses today: The Honorable Ronald Suppah, who is the
Chairman of the Confederated Tribes of Warm Springs in Warm
Springs, Oregon. Mr. Suppah, thank you for being with us.
We have Isidro Lopez, Vice Chairman of the Tohono O'odham
Nation in Sells, Arizona; the Honorable Robert Moore, the
Tribal Councilman at the Rosebud Sioux Tribe in Mission, South
Dakota; Mr. William Gregory, Tribal Prosecutor, Little Traverse
Bay Bands of Odawa Indians in Harbor Springs, Michigan; and Ms.
Jacqueline Johnson, Executive Director of the National Congress
of American Indians.
I would ask that each of the witnesses summarize their
testimony, and we will include the full testimony as a part of
the permanent record.
Let's begin with Mr. Ronald Suppah, Chairman of the
Confederated Tribes of Warm Springs, Oregon. Mr. Suppah, you
may proceed.
STATEMENT OF HON. RONALD SUPPAH, SR., CHAIRMAN,
CONFEDERATED TRIBES OF THE WARM SPRINGS
RESERVATION
Mr. Suppah. Good morning, Mr. Chairman and members of the
Committee. I am Ron Suppah, Chairman of the Confederated Tribes
of the Warm Springs Reservation of Oregon. I appreciate the
opportunity to testify today on the Warm Springs experience in
trying to comply with the Adam Walsh Act.
Warm Springs was surprised and upset, as was most of Indian
Country, to learn that Congress has jeopardized our sovereignty
by subjecting our government to the mandates of the Adam Walsh
Act. Faced with the option of trying to comply or losing
jurisdiction, we have chosen to comply, even though we have
very little experience in any sort of registry for sex
offenders.
Since hearing about the Act, we have easily had to spend
more than $10,000 of our own scarce resources to work towards
compliance. We have learned all we can about the Act, submitted
comments on the Act guidelines, attended consultation meetings
with the Department of Justice, started attending coordination
meetings with the State, and last September applied for a DOJ
grant to help implement the Act.
At the end of April this year, seven months after
submitting our grant application, the DOJ informed us we were
being awarded an Adam Walsh implementation grant of $300,000,
the amount we requested. But in mid-May, DOJ told us we needed
to submit more budget information before we could start drawing
on the grant funds. We submitted more detailed materials, but
in mid-June, DOJ again informed us they needed still more
budget information.
We are developing the additional information, but cannot
start spending the grant until DOJ is satisfied. Meanwhile,
time is passing before we can start ramping up towards
compliance, which must be demonstrated to the DOJ's
satisfaction by the end of April next year. This is just nine
months away.
At present, Warm Springs has almost no experience in
operating a sex offender registry. Our parole and probation
office keeps track of Indian sex offenders, but only as part of
the general listing of those Indians convicted of criminal
offenses in our tribal court. With just nine months to
demonstrate compliance, we have a lot to do. We must hire and
train a registrar and a police officer to operate the registry
and carry out its requirements.
We must acquire photo and fingerprint computer equipment,
upgrade our computers and our links to the State, county and
Federal systems, and learn the information sharing protocols.
We need to revise our tribal code to comply with Adam Walsh and
to train our tribal court about the Act.
In doing so, we must make sure all these activities comply
with the Adam Walsh guidelines which DOJ just issued at the
start of this month. Most of this is put on hold until we can
get our budget squared away with DOJ, which we hope will be
fairly soon.
If we cannot meet the April 27, 2009 compliance deadline,
we will have to ask the Attorney General for a one-year
extension provided under the Act. We hope we won't have to, but
we have a lot to do and time is running out.
In closing, I want to mention three additional concerns.
One is future funding. Compliance is expensive, and if there is
no future Federal funding, tribes will have to take it from
other needed programs or face losing our jurisdiction. This is
an unfair choice. Second, standards must be set for the
Attorney General's authority to revoke tribal jurisdiction. And
third, Federal prisons should do registrations. If tribes have
to do registrations, so should they.
That concludes my statement. I thank you.
[The prepared statement of Mr. Suppah follows:
Prepared Statement of Hon. Ronald Suppah, Sr., Chairman, Confederated
Tribes of The Warm Springs Reservation
Mr. Chairman, I am Ron Suppah, Chairman of the Tribal Council of
the Confederated Tribes of the Warm Springs Reservation of Oregon. It
is my pleasure to be here today to present testimony regarding the
implementation of the Adam Walsh Act (Public Law 109-248) by tribal
governments, and in particular by my Tribe, the Confederated Tribes of
Warm Springs. My comments include a discussion of the experiences of my
Tribe as we work to fulfill the Act and a discussion of the broader
concerns faced by tribal governments on the general application and
implementation of the Act.
Our testimony will inform the Committee how the unanticipated Adam
Walsh Act threatens our sovereignty and has challenged our existing
Tribal capacity and infrastructure, how we plan to address those
matters, and how the Department of Justice is, on the one hand,
providing funding for our compliance efforts while, on the other,
frustrating our efforts to comply with the implementation timelines
imposed by the Act. We will also address a number of the broader
concerns with the Department of Justice's implementation of the Act and
our Tribe's own particular concerns about how the Act might, or might
not, be sustained.
About Warm Springs
The Warm Springs Tribe is comprised of over 4,500 members and
occupies the 650,000-acre Warm Springs Indian Reservation in North
Central Oregon. Warm Springs is one of three non-Public Law 280 Tribes
among Oregon's nine Tribes, and the Warm Springs Police Department is
the primary law enforcement provider on the Reservation. As on many
reservations, the law enforcement presence on our Reservation is
sparse, primarily due to insufficient federal support.
Today, at present, Warm Springs does not have a sex offender
registry, and our specific experience with such a function is very
limited. We do, however, have a Parole and Probation Office that lists
and tracks the parole and probation status of those Indians convicted
of criminal offenses in our Tribal Court, including those convicted of
sex offenses. The Parole and Probation Office also has links to county
and State of Oregon counterpart offices. So, we have some capacity and
conviction registry and tracking experience, but we are not experienced
or equipped to meet the specific Adam Walsh requirements.
Our Tribe has exercised jurisdiction over what is today the Warm
Springs Reservation since time immemorial. We have always carefully
guarded that sovereign authority, including through the 1950s as other
Oregon tribes were stripped of that authority by P.L. 280 or were
completely terminated. To be suddenly informed that the U.S. Congress
has unilaterally acted in these modern times to place a portion of that
sovereign authority in jeopardy, and to saddle tribal governments with
unsought new obligations and expenses, is startling and abhorrent to
us. We immediately undertook to learn more about the Act and its
implementation. We attended consultation sessions conducted by the
Department of Justice and developed and submitted comments on the DOJ's
proposed guidelines for implementation of the Adam Walsh Act. Several
of those comments remain critical to us--and we believe to all tribes
seeking to assume the Act's registry responsibilities--and we discuss
them as on-going concerns later in this testimony. After assessing our
limited options under the Act, the Warm Springs Tribal Council enacted
a resolution to take on the registration requirements, and we submitted
that resolution to the Department of Justice on June 26, 2007, in
compliance with its deadline.
Compliance Efforts
We attended a July 31, 2007 tribal consultation session with the
Department of Justice in Phoenix, Arizona where DOJ announced that
implementation grants would be available. Accordingly, Warm Springs
submitted a grant application to the Department of Justice SMART Office
by the September 4, 2007 deadline for Adam Walsh implementation grants.
In April of this year, seven months after we submitted our grant
application, we initially received confusing information from DOJ about
the status of our application, but on April 20, we were informed we
were to receive a grant, and on April 30, Warm Springs Secretary/
Treasurer Charles Calica officially received notification from DOJ of
an Adam Walsh implementation grant award in the amount of $300,000.
However, we have not been able to start spending it. On May 13, we
received a request from the SMART Office Chief Financial Officer for a
budget narrative and listing of cost categories. On June 11, Warm
Springs submitted the information we believed the SMART Office
requested. But on June 17, the Department of Justice informed Warm
Springs that our first submission is insufficient, and that more
detailed budget information is required.
We are developing that more detailed budget information, but until
our budget is finally deemed acceptable by DOJ, we are unable to access
any of the grant funds, effectively delaying our ability to start
acquiring and developing the capacity necessary to meet both DOJ
deadlines of April 27, 2009 for certification of capacity and July 27,
2009 for commencement of registration activities.
In the meantime, and in fact since we first became aware of the
Adam Walsh Act's application to tribes, Warm Springs has had to spend
more than $10,000 of our own funds to learn about and work toward
complying with the Act.
Today, as we try to comply with additional DOJ grant requirements,
Warm Springs finds itself with each passing week facing a shorter and
shorter time in which to acquire the registration capacity that must be
submitted to DOJ by April 27, 2009. That leaves us nine months in which
we must acquire the necessary digital fingerprinting and photo hardware
and software, engage a Registry Administrator to operate the system,
engage a police officer to help carry out any necessary enforcement
actions and perform registration functions when the Registry
Administrator is not on duty, train both, establish information-sharing
protocols with other jurisdictions and upgrade our computer capacity,
upgrade links to the State, house the Registration office, revise our
Tribal Code to reflect Adam Walsh requirements, and train our Tribal
Court personnel about the Act. In addition, we now need to make certain
that our anticipated implementation plan comports with the Justice
Department's Final Guidelines for the Act, which were only issued this
month, eleven months after the comment deadline. If our implementation
program, which we have not yet been able to begin, is not completed to
the satisfaction of the Department of Justice by April 27 of next year,
we may have to request from the Attorney General a one-year
implementation extension as provided in the Act.
In revising our Tribal Code to accommodate the Adam Walsh Act,
there are a number of policy and jurisdiction issues that will have to
be considered. For instance, even though the Adam Walsh Act does not
require tribes to make it a crime for a sex offender to fail to
register, our Tribe will have to think about whether it wants to create
such a criminal violation. That's probably the most effective way to
get convicted sex offenders to comply with the registration
requirement. It would also help to avoid an Adam Walsh Act enforcement
vacuum on the reservation that could leave non-registrants at large on
the reservation and place our sovereign authority over this issue in
jeopardy of revocation by the Attorney General. Such a criminal
violation could also be enforceable against non-Indians as a civil
infraction. Any non-Indians who live or work on the reservation, and
who have been convicted in state or federal court of a sex offense that
requires Adam Walsh Act registration, are required to register with the
Tribe. Once we are able to access the DOJ grant funds, we will began
work on the Tribal Code provisions requiring compliance with the
Tribe's sex offender registration requirements. It will have criminal
penalties for Indians and civil infraction consequences for non-
Indians.
Meanwhile, since we learned about application of the Adam Walsh Act
to tribes, Warm Springs personnel have been active where we can be in
developing coordination for the implementation of the Act. The Oregon
Governor's Office has invited Warm Springs, along with all of Oregon's
eight other tribes, to participate in the State ``Public Safety
Cluster.'' These are quarterly meetings that involve State public
safety representatives and now all 9 tribes' public safety personnel
under the State/Tribal government-to-government process. We give each
other updates on the Adam Walsh Act among other public safety issues
that impact either jurisdiction. Also since passage of the Adam Walsh
Act, Warm Springs participates in the sex offender networking meetings
being conducted quarterly by the State specifically to coordinate on
Adam Walsh requirements. Warm Springs is fortunate to have good
relations with the State of Oregon and with several surrounding
counties, and we are counting on that history of good relations to ease
and speed the coordination required under the Act.
Additional Concerns
Mr. Chairman, Warm Springs should note that the $300,000 DOJ grant
we have been awarded is the amount we requested, and we believe it will
be sufficient to implement the program for one year. However, we are
concerned about the availability and adequacy of federal support for
the cost of continuing operations in out years. Under our plan to meet
the requirements of the Adam Walsh Act, Warm Springs will have on-going
annual costs of approximately $175,000. Like most of Indian Country,
our fiscal resources are quite limited, and if there is not sufficient
federal support, the Tribe could be placed in the exceptionally unfair
position of drawing funding from other critical Tribal services to meet
the unfunded mandate imposed by the Adam Walsh Act or face the
diminution of our tribal sovereignty. So that tribes are not placed in
this untenable position, we urge this Committee and the Congress to
authorize and appropriate the funds necessary for tribal compliance
with the Act on an on-going basis.
Warm Springs also wishes to emphasize two other prospective
troublesome issues we, and other tribes, commented on for the proposed
implementation guidelines, but which remain unaddressed in the final
guidelines issued earlier this month.
First, the Tribe is disappointed that the final guidelines lack
a ``due process'' mechanism for determining tribal compliance
with the requirements of the Act. It is highly objectionable to
Warm Springs that the Attorney General is allowed to
unilaterally determine that a tribe has failed to comply with
the Act and, as a penalty, delegate jurisdiction over the
Tribe's reservation to the state. Clearly, such an
administrative delegation of state jurisdiction over Indian
Country is not only offensive to tribal sovereignty, it appears
to be unprecedented in the more than two centuries of federal-
tribal relations. Certainly, such a grave decision by the
Attorney General, with such serious consequences for tribal
sovereignty and jurisdiction, should be undertaken with great
reluctance. Moreover, such a decision must, at a minimum, be
subject to judicial challenge by the affected tribe under
procedures that are consistent with the due process
requirements of the United States Constitution. Warm Springs
urges the Attorney General to adopt such procedures.
Second, we strongly object to the provisions of the final
guidelines regarding initial registration of convicted sex
offenders incarcerated in the federal prison system. Unlike
prisoners incarcerated in state and tribal facilities, federal
prisoners are not required to register before they are released
to the community under the final guidelines. The supposed
justification for that glaring omission in the otherwise
comprehensive requirement that incarcerated sex offenders must
register before release is that there is no federal
registration system. That is no excuse for not registering
federally incarcerated sex offenders before their release.
Certainly, it should be possible for the Federal Bureau of
Prisons to arrange for incarcerated sex offenders to register
with the state in which the federal correctional facility is
located. That is simply a matter of federal-state coordination
and cooperation. The alternative--simply releasing without
registering sex offenders convicted of the most serious
felonies, many of whom committed their sex crimes in Indian
Country--is unacceptable in view of the public safety threat
these violators pose. We recognize that the Bureau of Prisons
and the federal probation offices must notify state and local
law enforcement and registration agencies in destination
jurisdictions prior to the release of a convicted sex offender,
but the Bureau should ensure that offenders are registered in
the appropriate jurisdictions before they are released.
Mr. Chairman, Members of the Committee, that concludes my
testimony. Thank you for the opportunity to appear today and discuss
our efforts to comply with the Adam Walsh Act.
The Chairman. Mr. Chairman, thank you very much for your
statement. We appreciate your being here and your testimony.
Next, we will hear from the Honorable Isidro Lopez, who is
Vice Chairman of the Tohono O'odham Nation, Sells, Arizona. I
hope I have pronounced that correctly, Mr. Chairman.
Mr. Lopez. Yes.
STATEMENT OF HON. ISIDRO B. LOPEZ, VICE CHAIRMAN, TOHONO
O'ODHAM NATION
Mr. Lopez. Good morning, Chairman Dorgan, Vice Chairman
Murkowski, and distinguished Committee members. My name is
Isidro Lopez and I am the Vice Chairman for the Tohono O'odham
Nation. I thank you for the opportunity to testify today.
The Tohono O'odham Nation is the second largest reservation
in the United States and the nation's government has formed
longstanding partnerships with the Arizona Department of Public
Safety and a host of other law enforcement agencies to register
sex offenders and protect the public's safety on and off the
reservation.
The Tohono O'odham's own registration and notification law
was enacted several years before the Adam Walsh Act and our
program is staffed by a full-time State-certified tribal police
detective. As a result, the nation has registered more than 216
sex offenders on the reservation, with a resident population of
14,000. We understand the dangers posed by sex offenders whose
identities remain hidden and we are committed to public
disclosure of offender information.
Although the nation elected to carry out its own functions
under section 127 of the Act, it is difficult to obtain the
funding necessary to achieve full compliance. Because the FBI
stopped funding Indian Country crime lab services in 2006, the
nation entered into an intergovernmental agreement to reimburse
the State of Arizona $130,000 annually for crime lab services,
including the analysis and storage of offenders' DNA samples.
This data is then entered into the FBI's combined DNA index
system database in order to achieve the goal of making this
evidence nationally available.
In addition to the DNA collection and the services provided
by the State of Arizona's crime lab, the State also has been
posting the nation's registration on the Arizona sex offender
website and entering our offenders into the State criminal
justice information system for years. While the State and the
nation are now discussing an intergovernmental agreement to
formalize a website service arrangement, the nation is also
meeting with vendors who can create and launch a website that
will fully comply with the Act.
Despite the fact that the funding to implement the Act and
its guidelines and the jurisdictional maze Indian tribes always
face, the nation has been working closely with our neighboring
counties, the State, the City of Tucson, our tribal and Federal
partners, to implement and strengthen our sex offender
registration program.
These partnerships operate without official agreements, but
have been highly successful. Coordination with the U.S.
Marshal's office, for example, has resulted in apprehension of
charging five Indian and non-Indian offenders for non-
compliance with the nation's law. The Federal and State
probation departments likewise assist in registering offenders
who are subject to registration in the nation, at the halfway
houses before their release.
The nation is greatly encouraged that the final guidelines
remove the option for States to ignore tribal convictions based
on a perception that tribal justice systems deny fundamental
rights that are in fact guaranteed under tribal law and the
Indian Civil Rights Act.
That said, the nation is deeply troubled that even the most
horrific sex crimes are categorized in the least serious tier
of offenses if the conviction is obtained in tribal court. The
Indian women and children suffer no less, and perpetrators are
no less dangerous to the off-reservation public just because
tribal courts are limited by Federal law to imposing no more
than one-year sentences for rape and child molestation.
If even the most serious sex crimes are classified within
the least serious tier of offenses, the goal of the Adam Walsh
Act, one comprehensive system, one safety net without gaps, is
undermined. Ultimately, the nation's success in achieving the
goals of the Adam Walsh Act hinges on full recognition of
tribes as equal partners in the fight against these terrible
crimes. The extensive network of working partnerships we have
developed in Arizona must be matched by a recognition in the
Act and guidelines that States and tribes are equal.
Thank you.
[The prepared statement of Mr. Lopez follows:]
Prepared Statement of Hon. Isidro B. Lopez, Vice Chairman, Tohono
O'odham Nation
The Chairman. Chairman Lopez, thank you very much for your
testimony and for being with us today.
Next, we will hear from Tribal Councilman Robert Moore from
the Rosebud Sioux Tribe in Mission, South Dakota.
Mr. Moore, thank you very much.
STATEMENT OF HON. ROBERT MOORE, TRIBAL COUNCILMAN, ROSEBUD
SIOUX TRIBE
Mr. Moore. Thank you very much, Mr. Chairman. I appreciate
the opportunity to be here today. Senator Tester, good to see
you as well. To all the Committee, we extend our appreciation
for being here to represent the Rosebud Sioux Tribe as a
representative not only from our own tribal nation, but of the
Great Plains tribes as well, which you know so well, Senator
Dorgan. We want to thank you for all your continued work.
We want to thank you for the $2 billion for the PEPFAR
activity. It will go a long way to address some of the issues
that need to be addressed concurrent to the implementation of
the Adam Walsh Act, such as increased law enforcement,
increased victim services, and certainly even within the Indian
Health Service, some of the issues that occur when a child or a
young woman is sexually assaulted or molested.
I was asked to read one brief story from a tribal member
who had this happen to her. ``I am an enrolled member of the
Rosebud Sioux Tribe. I am an 18-year-old female who was
sexually assaulted when I was 15 years old. I was raped by a
neighbor who was in his early 20s. He is now in prison doing
seven years. One night I went to a neighbor's house with an
older girl and he raped me. I remember the rape. I just
couldn't help myself. It was like I was dreaming and my dream
became a nightmare.
I remember the ambulance taking me to the emergency room
where I lay bleeding in the trauma room for over eight hours.
Then I was taken upstairs and admitted. After 24 hours, I was
then flown to Sioux Falls where I was treated for my injuries.
I remember how scared I was and I thought I was going to die. I
survived, but had to go to mental health and support groups at
White Buffalo Calf Women Society. This is where I met other
victims who helped me.
My family took me to a traditional healing ceremony and
this is where I am today. The rape has affected my entire
family. My mother has always been there for me throughout this
whole traumatic experience. The support I received from victims
through White Buffalo Calf and my family have helped me to cope
with the sexual assault.
Today, I still attend the support groups and help others
who went through sexual assault because I have been there and I
am glad that our tribe has established a sexual offender
registry so that people can be aware of the sex offenders in
our area.''
We are somewhere in the middle of the two tribes you have
heard from already this morning in terms of the implementation
of Adam Walsh. We established our own sex offender registration
law at Rosebud about three months prior to the enactment of
Adam Walsh, and feel the same as many tribes around the Country
who already expressed their concern that Adam Walsh did not
happen with tribes, but it happened to tribes.
So now we are having to face some of the ramifications of
that, including the State's Attorney General having such great
authority to determine whether a tribe is in compliance or not
by the deadline or even following the deadline, if the deadline
for implementation is not extended. We are deeply concerned
about that because of the resources that tribes have already
said they have had to share themselves.
Certainly with us, our Violence Against Women Act safety
grant is now funding activities that otherwise should be coming
from the Adam Walsh implementation grant which we were not
awarded, and certainly you can see the hoops that now a tribe
has to jump through at Justice just to receive the resources to
build their own system and to manage their own system and to
protect what is their sovereignty.
In South Dakota, as you are probably aware, we have great
jurisdictional issues with the State of South Dakota. They
would jump at the chance to have any entrance onto any of our
current tribal jurisdictions, even in surrounding counties
outside of the main Todd County, which is the Rosebud
Reservation proper.
We are also concerned about the release of Federal inmates
convicted of sexual offenses that are not registered prior to
their release. As you articulated this morning as well with the
Dru Sjodin case, that was the case. He was not registered
before he was discharged and released.
Ironically for tribal citizens who are in the same
situation, they will get better health care in Federal prison,
but then they have a three-day free pass to go anywhere they
want, and perhaps repeat an offense again. So it is a very
significant issue for us and of grave concern.
We are also concerned about the funding issues and the
competitive nature of these grants, because without having to
compete for them, we would be able to have those resources
directly to tribes to support what is the need of that
particular tribe, given their size and jurisdiction and their
ability to perform the work, because it already establishes a
failure on the part of the tribe if they are not given those
resources to implement the Act.
That is just real briefly. You have my written testimony.
We have shared our sex offender law with the staff as well for
the Committee, and we want to continue working with not only
your Committee, but others, the Department of Justice and
others, like Leslie Hagen of the SMART office who has been such
a great value to tribes in helping them through the process,
that we want to be able to do everything we can to make this
law work, not only for the State of South Dakota and for the
Rosebud Sioux Tribe, but so that the legacy that Adam Walsh
will have for Members of Congress like yourself will be rich
and strong.
Thank you.
[The prepared statement of Mr. Moore follows:]
Prepared Statement of Hon. Robert Moore, Tribal Councilman, Rosebud
Sioux Tribe
The Rosebud Sioux Tribe is located in south central South Dakota
and borders the Pine Ridge Reservation on its northwest corner and the
State of Nebraska to the south. The reservation is located in Todd
County, however, the Tribe's jurisdiction extends to tribal communities
in Gregory, Mellette, Lyman and Tripp Counties in South Dakota covering
over 5,900 square miles.
The area is home to over 25,000 enrolled members of the Tribe with
an average per-capita income of $7,500. Todd County is historically
recorded by the United States Census Bureau as one of the top five
poorest counties in the United States. Over 50 percent of our
membership is under the age of 21. The unemployment rate hovers around
84 percent. There are several thousand non-Indians within the Tribe's
civil jurisdiction.
The Tribe has contracted law and order services from the Bureau of
Indian Affairs through the Public Law 93-638 process and currently have
16 officers to respond to calls. This significant disparity in
population and geographical service area to the number of officers on
duty at any given time is a grave concern of tribal leaders who are
responsible for public safety and tribal court services. The tribal
court is inundated with a case load into the hundreds with two
prosecutors, two full time judges, one public defender and minimal
court support staff.
Historically, crimes against children were unheard of as they are
held sacred. In the rare instance of a crime, especially sexual
assault, tribal members were ostracized from the tribe. The advent of
such horrific crime, often fueled by other social and economic factors,
has deepened the reverence of children for our Tribe and raised the
urgency to strengthen tribal law to properly charge, adjudicate and
build victim support services.
As a result of raised awareness by local victim advocacy groups,
notably the White Buffalo Calf Woman Society, Inc, the Tribe's plan of
action was to adopt Megan's Law and establish a resolution for Rosebud
Sioux Tribal Council to enact a Sex Offender Registry on April 25, 2006
at least 3 months prior to the signing of the Adam Walsh Act.
The Adam Walsh Act, passed without tribal consultation or comment,
represents a significant assault on tribal sovereignty. The State of
South Dakota was an option state after the passage of Public Law 280.
In other words, the State of South Dakota has the option of assuming
criminal jurisdiction on Tribal lands and reservations.
The State made numerous attempts at assuming piecemeal jurisdiction
over tribal lands, but the Tribes in the State of South Dakota sought
declaratory and injunctive relief from the State of South Dakota from
exercising jurisdiction over Indians on highways within Indian
reservations. Rosebud Sioux Tribe v. State of South Dakota, 900 F. 2d
1164 (8th Cir. 1990).
In May of 2007, the Rosebud Sioux Tribe enacted a resolution to
opt-in as the primary for administering sex offender registration
provision of Adam Walsh.
While federal law predating the Adam Walsh Act provided national
standards for state sex offender registration programs, it made no
comparable provision concerning sex offenders who are convicted in
tribal courts, or who enter the jurisdiction of a tribe following
conviction in some other jurisdiction. As a result, there has been a
lack of consistent means for tribal authorities to be notified on sex
offenders entering their jurisdictions, to track those offenders, or to
make information about those offenders available to members of tribal
communities for the protection of themselves and their family. With
assistance and guidance of Department of Justice and SMART Office,
White Buffalo Calf Woman Society, Inc. developed another resolution
with implementation of the Adam Walsh Act in which Rosebud Sioux Tribal
Council passed on May 10, 2007.
Currently, White Buffalo Calf Woman Society, Inc. (WBCWS), the
Tribe's designated lead victims service agency, is utilizing a Safety
Grant for Indian Women to work with the state of South Dakota on the
Adam Walsh Act-Sex Offender Registry. The Tribe's Attorney General,
with WBCWS is working closely with State's Attorney General's office to
draft a cooperative agreement concerning the transfer of electronic
information and to address other issues as necessary for full
implementation by the July 2009 deadline for Tribes. In addition, we
have signed memorandum of agreements with surrounding counties for
which the Tribe has jurisdiction.
In fact, the Rosebud Sioux Tribe's sex offender registration law
requires that convicted offenders who are sentenced to register must
register twice a year and extends severe civil penalties to non-Indian
offenders. The State of South Dakota currently requires that offenders
register only once a year.
There are currently 38 registered sex offenders within the Tribe's
jurisdiction. However, within the next 5 years, given recent cases and
convictions we may see that number rise to over 60 offenders who must
register with the Tribe.
With that in mind, there are several key issues of concern for
consideration in the enforcement of Adam Walsh within our jurisdiction.
We must have additional dollars to increase law enforcement. The
Tribe has one designated officer responsible to enforce the Tribe's
existing registration law which is attached to this testimony.
Additional resources will further allow the Tribe to adequately
address the many man hours to ensure that our code meets the standards
of the recent SORNA final regulations, approved and make sure all the
technical aspects (databases, computer equipment, etc.) of the Act are
in place.
Further, Congress must address issues and concerns of tribes with
the Adam Walsh Act.
Currently the Act, affirmed by the final SORNA regulations permits
the United States Attorney General the discretion to the State to
enforce state law and jurisdiction over Indians of the reservation
despite the passage of the Indian Civil Rights Act of 1968, a federal
act requiring tribal consent to the assertion of state jurisdiction.
The Adam Walsh Act permits assertion of state authority on Indian
reservations without requiring tribal consent, and is therefore
represents a significant erosion of tribal sovereignty.
Congress must compel the US Attorney General to fully address and
establish a due process to tribes found out of compliance with the Act
and to provide resources to bring tribes into compliance, including
technical assistance and other human, as well as financial, resources.
This may also include assisting tribes in establishing coalitions to
enforce the Act within tribal jurisdiction where a smaller tribe may
not have the ability to do so on their own.
Finally, Congress must look at extending the July 2009 deadline to
ensure that Tribe's, including the Rosebud Sioux, are consulted in a
meaningful way to address ongoing concerns with the Act and any future
legislation that forces tribes to submit to state jurisdiction and
abrogates treaty, federal and constitutional law.
The Chairman. Mr. Moore, thank you very much for your
testimony.
Next, we will hear from Mr. William Gregory, who is a
Tribal Prosecutor at Little Traverse Bay Bands of Odawa Indians
in Harbor Springs, Michigan.
Mr. Gregory, thank you for joining us today.
STATEMENT OF WILLIAM GREGORY, TRIBAL PROSECUTOR, LITTLE
TRAVERSE BAY BANDS OF ODAWA INDIANS
Mr. Gregory. Thank you very much, your honor. It is a
privilege to be here to share information from Michigan Indian
Country. I thank you and the Committee and the staff for this
opportunity.
Michigan Indian Country is composed of 12 federally
recognized Indian tribes. We have been working in a consortium
for the last two years to secure funding and to encourage
cooperation among the tribes on law enforcement issues. I have
been a prosecutor and a judge at five different tribes in
Michigan since 1989. In my experience, I found a great deal of
problems with tribes sharing information.
In Michigan, we have an excellent relationship with the
Federal and State governments. The State of Michigan allows
Michigan tribes to utilize the law enforcement information
network which is an area where you can get criminal histories,
background checks, but the big problem is that the tribal
courts, tribes do not put their criminal convictions on that
link system.
So when we do a criminal background check in a tribe in
Michigan, it is incomplete because we don't know what is going
on in the other tribes. This makes us handicapped when it comes
to the officers knowing who they are dealing with and what kind
of person they are dealing with, and also for the prosecutors
to understand that they could possibly be enhancing a charge
against a particular individual.
So for two years prior to Adam Walsh, we have been
struggling with how to get this information-sharing going.
Again, most of the tribes in Michigan have--there are 11 of the
12 that have deputization agreements with their local counties.
They also have a good relationship with the Western District
U.S. Attorney's Office because 11 of our tribes are located in
the Western District.
Adam Walsh has been well explained. The impact has been
felt in Michigan as well. The ultimatum about setting up your
own sex offender registry or let the State come in and give
them access encouraged all the tribes of Michigan to file
resolutions to set up their own sex offender registry, without
knowing the impact, the options and all the problems that might
be there.
Fortunately, in Michigan we have had some grants, some
great grants that have allowed us to put into place
infrastructure that I think will serve us well as we go
forward. Just quickly, I would like to mention a few of those.
In 2006, T-CHRIP, which stands for Tribal Criminal History
Record Improvement program, gave us some money for the tribes
in Michigan which we went around to the tribal courts and
helped them set up databases, because the basis for a good
criminal information-sharing system is a tribal court or a
court that can share information on convictions.
In 2007, from T-CHRIP, we got a live-scan grant to provide
all the tribes in Michigan with live-scan. It also takes the
fingerprints and the palm prints which makes it Adam Walsh-
compliant. From VAWA, we received grants to set up a personal
protection order database. We have also requested in 2008 to
expand that to all of the tribes.
We are also looking for a grant from T-CHRIP for record
management systems, for all the law enforcement departments,
again the type of record management system that can be stored
information and can exchange that information with other law
enforcement agencies.
And then we were fortunate to get a grant from SMART office
in 2007 for technology and training. Those grants have all
formed and created an infrastructure on which part of each will
contribute to the Adam Walsh Act necessity, technology,
connectivity that we anticipate.
The outlook for compliance in Michigan, the tribes are
working cooperatively. They have identified options at recent
summit meetings over the last year. There are committees right
now that are preparing impacts for tribal leaders to identify
the best options so that they can make a decision. Once the
tribal leaders make a decision to go forward, I believe that
compliance in Michigan is possible by the goal established by
the Act, but more than likely we will need an additional year.
Thank you.
[The prepared statement of Mr. Gregory follows:]
Prepared Statement of William Gregory, Tribal Prosecutor, Little
Traverse Bay Bands of Odawa Indians
Mr. Chairman and members of the Committee; The Little Traverse Bay
Bands of Odawa Indians, on behalf of the 12 federally recognized tribes
\1\ in Michigan, would like to thank you for this opportunity to
provide input on the implementation of the Adam Walsh Act in Michigan's
Indian Country.
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\1\ The word Tribe and Band are used interchangeably in Michigan.
---------------------------------------------------------------------------
The 12 tribes are located throughout the state. The tribes are
known as the Three Fires of the Algonquin Tribe who migrated from New
England. The Three Fires are composed of the Odawa (Ottawa), the
Ojibeway (Chippewa), and the Poddawadomi (Pottawatomi). The Odawa were
traditionally located along the western shore of Lake Michigan and were
manly involved in fishing and trading. The Ojibeway were located along
the eastern shore of Lake Huron and the north shore of Lake Superior
and were mainly involved in fishing. The Poddawadomi were located in
the southwestern area of Michigan and were mainly farmers. One tribe of
Poddawadomi, the Hannahville Indian Community, moved to the Upper
Peninsula of Michigan to escape the relocation of their tribe to
Kansas.
I have served as a prosecutor for 19 years with several Michigan
tribes, Grand Traverse Bands (12 years), Saginaw Chippewa Indian Tribe
(3 years) and the Little Traverse Bay Bands of Odawa Indians (6 years)
as well as a special prosecutor for the Little River Band of Ottawa
Indians, and the Sault Tribe of Chippewa Indians. Some of these
assignments overlap in time. I also served as an interim chief judge
for the Saginaw Chippewa Indian Tribe of Michigan.
The Michigan tribes have a good relationship with the Michigan
State Police and all tribal law enforcement departments utilize the
Michigan Law Enforcement Information Network (``LEIN'') for background
checks and other criminal justice information.
The criminal history records available on LEIN do not contain
tribal court convictions so the criminal histories are incomplete. As I
prosecuted in the different tribal courts I often dealt with offenders
that I had dealt with in other courts. In those rare instances I could
enhance charges if the offender had prior convictions for the same
offense. As a prosecutor I would only learn about a prior conviction by
personal knowledge from prior contact or by informal talks between law
enforcement personnel from other tribes.
I was concerned about this lack of criminal histories from other
tribes so I asked our grant writer to be on the lookout for any grants
that would provide funds to establish a tribal wide criminal history
repository for Michigan tribes. My grant writer was skeptical but
within a few months of my inquiry we received word of the Tribal
Criminal History Record Improvement Program (``T-CHRIP'') funded by the
Bureau of Justice Statistics in the Department of Justice. We received
funding for 2006 to explore means and methods for enhancing law
enforcement in Indian Country through a tribal criminal history
repository that would be accessible to tribes and the Michigan State
Police. During our first round we learned that the first and foremost
problem was the lack of criminal information capable of being shared.
The thrust of the first T-CHRIP grant was to assist Michigan tribes
develop sharable databases using Microsoft Access and the services of
Aventure Technology of Santa Fe New Mexico, a firm with extensive
experience serving tribes in New Mexico.
In 2007 the Little Traverse Bay Bands (``LTBB'') secured funding
through a Violence Against Women's Act (``VAWA'') grant to establish a
pilot program for a personal protection order (``PPO'') database with
four (4) Michigan tribes. The database will be operational at the end
of July, 2008 and the LTBB has made application for a follow on grant
to complete the database for all Michigan tribes. The infrastructure
for the PPO database will also support a criminal history network as
well as a sex offender registry as required by the Adam Walsh Act
(``AWA'').
In 2007 the LTBB received a second T-CHRIP grant to purchase
livescan fingerprint machines for all Michigan tribes. Automated
fingerprinting is a basic necessity for all tribes because the State of
Michigan and the FBI no longer accepts paper finger prints cards. The
latest model livescan machines also receive palm prints, a requirement
of the AWA.
In 2008 the LTBB applied for another T-CHRIP grant to purchase
record management systems (``RMS'') for tribal law enforcement
agencies. Some tribes only use a paper filing system to keep track of
investigation and arrest information. An RMS contains more information
than a typical criminal history record that only contains court
convictions. A tribal network of RMS will aid investigations and the
collection of crime statistics.
The tribal court databases, the PPO database, the RMS network, and
the livescan fingerprint machines form an infrastructure that will lead
to complete justice information sharing among tribes and assist the
tribes to comply with AWA.
In 2007 the LTBB received a grant from the SMART Office on behalf
of all Michigan tribes for training and infrastructure to facilitate
AWA implementation. The SMART Office has been extremely helpful in
general and Leslie Hagen in particular. Ms. Hagen has attended every
conference and training sponsored by the SMART Office and she has
attended several conferences in Michigan. She is well versed on the AWA
and is an excellent advocate for Indian Country USA.
The AWA was a bolt out of the blue for Indian tribes throughout the
nation; tribes complained that the AWA was an unfunded mandate and the
Department of Justice did not consult with tribes before the enactment
of the AWA. The single most onerous aspect of the AWA for tribes was
the ultimatum that if tribes didn't elect to stand up their own SOR the
State of Michigan would assume responsibility and the state would be
given access to the tribal justice systems. Under this threat every
tribe in Michigan filed resolutions with the SMART Office by July 27,
2007 to stand up their own SOR. Michigan tribes made their election
without knowing the full impact of their election.
LTBB has hosted two conferences to provide information to the
tribes about the different options the tribes have for implementing AWA
and the impact of each option. The Smart Office, the US Attorney for
the Western District of Michigan, \2\ and SEARCH, a national non-profit
organization that works on national information sharing standards, and
the Michigan Sex Offender Coordinator have provided information to
Michigan tribes.
---------------------------------------------------------------------------
\2\ There are 12 federally recognized tribes in Michigan; 11 are
located in the Western District. For more than 10 years the Western
District has employed a Indian Country liaison AUSA. The western
district has been extremely supportive of tribal efforts and has
participated in all conferences and training sessions on Adam Walsh.
---------------------------------------------------------------------------
Some tribes are leery of sharing information; they feel that it
infringes on their sovereignty. Most tribes see the need for
information sharing, especially as it pertains to criminal offenders
who travel from reservation to reservation. These tribes see the
sharing of information as providing officer safety and safer
communities. Some tribes view the AWA as extending tribal sovereignty
by requiring non-Indians who work, reside, or attend school to register
with the tribes. The tribes also have the option to enact civil
penalties for non-Indians who fail to register or update their
registration. 18 USC 2250 makes it a 10 year felony offense for anyone
who enters, leaves, or resides in Indian Country. Tribal leaders see
the efficacy of knowing what sex offenders are residing, working, or
attending school in their jurisdiction to protect children.
Following the AWA Summit on July 1, 2008 in Petoskey Michigan,
different disciplines within the various tribes are working together to
form ad hoc committees to share ideas and come up with ways and means
to comply with AWA.
Four options for implementing AWA were identified and discussed at
the July 1 Summit: (1) Each tribe stand up their own SOR; (2)
Individual tribes stand up their own SOR and negotiate memorandums of
understanding (``MOU'') with the State of Michigan to share different
responsibilities under AWA; (3) Tribes form a consortium to develop a
tribal wide SOR; and (4) Tribes form a consortium and negotiate an MOU
with the State of Michigan to share responsibilities for a SOR.
The next step is to reach tribal councils and executives, educate
them about the different options and come to a consensus and proceed to
implementation.
The State of Michigan has participated in all the AWA conferences
and trainings and is very willing to work with tribes in a manner of
the tribe's choosing.
The final guidelines for AWA were just released by the SMART
Office; the final guidelines clarify some of the questions raised in
the previous edition.
Tribes are also encouraged to hear of the proposed Indian Law
Enforcement legislation that I have had an opportunity to review. The
Michigan tribes have been well served by the US Department of Justice.
Because of the funding, the cooperation, and the training offered by
the DOJ, the Michigan tribal law enforcement community would look
favorably if Indian Country law enforcement were placed within the
aegis of the DOJ. The BIA currently administers Indian Country law
enforcement programs but the BIA is poorly equipped to perform their
responsibilities and law enforcement is not the BIA's number one
priority.
Thanks to the efforts of the SMART Office, the Bureau of
Statistics, and the VAWA office, Michigan tribes are well placed to
comply with AWA within the established time frame. It will not be easy,
there will be sacrifices, there will be spirited differences to
reconcile but the rewards loom large: communities will be safer, law
enforcement will be coordinated throughout Indian country; tribal
courts will be more efficient, and tribes will be more unified.
Thank you again for this opportunity.
The Chairman. Mr. Gregory, thank you very much for your
testimony. We appreciate your telling us of your experience
with the multiple tribes in Michigan.
Next, and finally, we will hear from Ms. Jacqueline
Johnson, Executive Director of the National Congress of
American Indians.
Ms. Johnson, you may proceed.
STATEMENT OF JACQUELINE JOHNSON, EXECUTIVE DIRECTOR, NATIONAL
CONGRESS OF AMERICAN INDIANS
Ms. Johnson. Thank you, Mr. Chairman.
I want to personally also thank you, as well as Robert
Moore, for the assistance that you gave in the bipartisan way
that we were able to get this additional $2 billion, which is
actually going to be very, very helpful for law enforcement,
and certainly for the work that you did with your peers and
colleagues to make this happen. I really appreciate that.
But I also want to thank you, too, for the leadership that
you have taken on this law enforcement bill. I think the work
that you have done and your staff has done in collaborating
with Indian Country to really find out what we need will
support the things that we are saying here and recommending
today, particularly the inclusion of all the tribes in the Adam
Walsh provisions and requirements.
As you said very clearly, this system, you know, there is a
need for this system, and with the two bills as was heard here
today, the two bills, the Violence Against Women and the Adam
Walsh being passed within six months of each other, created
confusion for Indian Country in the last two years. Indian
Country is still standing by. I heard today some great
recommendations, as well as some tribes who have stepped
forward, putting forward their recommendations, putting forward
their own resources to be able to address this issue, but
unfortunately not all tribes are able to do that and they don't
have the resources to be able to be in the same position. So we
advocate today that we look for ways of being able to do that.
As the deadline for implementation approaches, we are still
finding that there is this great deal of confusion. The
guidelines, as stated earlier, were just issued earlier this
month, and we are still trying to figure out how they are going
to come together with the Violence Against Women Office and the
coordination and collaboration just within DOJ. It is something
that still needs to be tackled.
We also found that because many tribes, as was stated
earlier, opted in so they could protect their sovereignty,
those that were eligible to opt in to protect their
sovereignty, have recognized that they need to work through or
collaborate through working relationships with their States.
Many States have historically been very good about that. Some
States have been more challenging.
But what we are hearing from the States as we monitor where
the States are in their implementation is that many of them are
also suggesting that the resources aren't there for them to
comply with the Act. In fact, some States are even suggesting
that it may be too expensive for them to comply and that they
would rather receive 10 percent less than their Byrne revenues
resources, grant-funding, than to have to comply. So we in
Indian Country are also challenged. If a State chooses not to
comply, it makes it more difficult for our tribe to comply.
I could go on. My testimony is pretty detailed about all
the issues and concerns that we have. But mostly today, I want
to ask you, and of course the Senate Committee on Indian
Affairs, to take leadership on this issue, to address these
concerns, in order to re-address the law and to clarify the
things that we need. Robert Moore mentioned Leslie Hagen, who
has been working very closely with Indian Country. Many times
she has to say to us over and over again, these are all the
answers that I can tell you; this is the law as it is written;
we need to get Congress to clarify for that.
So I would like to just focus on the recommendations that
we have in our testimony right now before I close. First, from
the onset, the Adam Walsh Act left out over half the tribes
from the national system. In order to have a truly seamless
registration system, Congress must amend the Adam Walsh Act to
allow all tribes to participate in the national sex offender
registry system on an equal basis.
Second, the role of the BIA has been totally left out. In
fact, it has not been addressed. We urge Congress that you
include the BIA and bring them into the national sex offender
registration system. In our testimony, I go on about how many
systems that the BIA actually operates and manages for tribes.
Without their inclusion, we have a gap in Indian Country.
And third, the Adam Walsh Act has given the Attorney
General the unilateral authority to strip tribal governments of
their civil and criminal jurisdiction to monitor ex-offenders.
This unprecedented delegation is an extremely dangerous
precedent and NCAI urges Congress to amend the law to protect
both the tribal sovereignty and your right and authority over
Indian affairs.
And finally, while States have had decades to build their
sex offender management systems and modified and updated to
comply with the new law, many tribes are starting from scratch.
It will be extremely cost for Indian Country to comply with the
law's mandates. We urge that the Committee consider extending
the compliance for all tribes to provide additional time for
tribes to come online.
We look forward to working with you and your staff on
putting together a package of recommendations to consider to
redress this legislation. Thank you very much.
[The prepared statement of Ms. Johnson follows:]
Prepared Statement of Jacqueline Johnson, Executive Director, National
Congress of American Indians
The Chairman. Ms. Johnson, thank you very much.
We will be introducing in just a matter of days, perhaps
next Monday or Tuesday, the major law enforcement bill that we
have put together. We have been involved in a lot of
consultation around the Country on that piece of legislation.
We now have nine cosponsors that are bipartisan. We will be
formally introducing that bill in the Senate in just a matter
of days.
The reason I mention that is the subject today is really
law enforcement, and how do we streamline and improve law
enforcement on Indian reservations, and particularly how is the
coordination between tribal governments and other governments
improved.
I think it was you, Mr. Lopez, who testified--someone did,
I think it was you--who testified that we are in a circumstance
where given the way the law is written, if a violent sexual
predator commits a very violent act on a reservation, and for
one reason or another it is not prosecuted perhaps by the U.S.
Attorney in that area, but prosecuted by the tribal courts for
whatever reason, no matter how violent that Act, it falls into
tier one, because the sentence for that can be no more than a
one-year sentence. Is that correct? Would you expand on this?
Mr. Lopez. That is correct, because of the Indian Civil
Rights Act. If a member is convicted in tribal court, because
of our law, we can only prosecute or put in incarceration for
one year. As they leave the reservation or when we speak to the
State or the county, they are going to only recognize that they
bring him to the lowest tier I guess because of their
incarcerations, or rather their sentence has only been a year.
The Chairman. But it is entirely possible in that
circumstance you could have these folks mislabeled on the
registration. If you have someone who is classified as a sex
offender, but classified as tier one, when in fact it could
possibly be a very violent sex offender, but because of the
unusual circumstances of a tribal court in this case having had
to take jurisdiction and being prohibited from exercising more
than a one-year incarceration, it is very likely this would be
information that would I think misinform people if they looked
at it.
Well, I will come back to that. Let me ask a number of
other questions, if I might.
Mr. Gregory, you indicate the T-CHRIP program you talked
about.
Mr. Gregory. T-CHRIP, yes.
The Chairman. The T-CHRIP program and the need for a tribal
record management system dealing with the history of offenders,
perhaps not just sexual offenders, but all offenders.
Mr. Gregory. Yes.
The Chairman. Is it generally the case from your experience
that no such system exists? That the tribal courts when meting
out certain sentences to those who are brought before the
courts do not register that sentence or do not describe that
someplace in a record or database?
Mr. Gregory. They keep it in their own database or filing
system, whatever they may have, but they do not share that
unfortunately at this time.
The Chairman. Do tribal courts have access to the NCIC?
Tribal courts do not have access to that routinely, right?
Mr. Gregory. They could have it through the State of
Michigan through the Michigan State Police criminal history
record depository, then it would just go on.
The Chairman. Certain cooperative circumstances exist I
assume where tribal authorities, perhaps having agreements in
some parts of the Country with local law enforcement
authorities, could have access to information on the NCIC as
they work together on a case, but it is likely the case that
the NCIC, if it is not receiving information from dispositions
or adjudication of criminal cases on the reservations, the NCIC
is not having a complete list either then. Is that correct?
Mr. Gregory. That is very true, your honor, very true. It
is one of the main problems we have in law enforcement in
Michigan. But through the cooperative efforts that we have
carried out, I think that we are convincing them for safe
communities and for officer safety. The law enforcement
departments are strongly behind these measures. We are hoping
that the impetus from the necessity for sharing information
under the Adam Walsh Act is going to help us push the tribes
into that cooperative agreements and cooperative efforts to get
all criminal histories, including sex offenders, but of course
we are mandated under Adam Walsh on sex offenders, but on other
crimes as well because under Adam Walsh you have to have
criminal histories when you register offenders.
The Chairman. The criminal history is critically important
if we are going to address real law enforcement needs in a
significant way. The fact is in this Country generally, and I
am guessing although I don't have the data, on Indian
reservations a relatively small percentage of the crimes, or I
should say a large percentage of the crimes will be committed
by a small percentage of the population, in many cases over and
over and over again.
If you don't have an adequate criminal history, you have a
very difficult time trying to address those issues with that
smaller part of the population that is producing most of the
criminal activity.
Ms. Johnson, can you tell me what is happening across the
Country with all of the tribes? I assume tribes are strapped
for money, strapped for cash, strapped without the ability in
many cases to make the significant technology investments that
are necessary to have a really good criminal history record and
be sharing that. Is that the case?
Ms. Johnson. Yes. In fact, a lot of the tribal courts still
don't have electronic systems for just managing the data
themselves. So that would be one of the first steps, not only
that, but technology, the live-scan technology that most tribes
still don't have. It is good to see that there are projects out
there that are trying to do those kinds of things. There are
some tribes that are trying to do tribe by tribe recognition
and sharing of data on a very small scale, and that needs to be
expanded.
But you were just talking about access to the NCIC systems.
You know, less than 12 percent of the tribes have access to
those systems right now. NCAI met with the Attorney General and
said that was just paramount for us to be able to comply with
the law. We are really concerned that if we don't get access,
we will not be able to make the compliance requirement and then
the Attorney General is in a position to determine, without any
guidelines right now, of what meets compliance or not and could
transfer sex offender jurisdiction over.
The Chairman. So you are saying that access to that is
important in terms of reaching compliance under the Adam Walsh
Act?
Ms. Johnson. Critical. Yes.
The Chairman. Let me come back to that in a moment.
Mr. Suppah, you indicated that your tribe is considering
civil penalties for non-Indian violators on your reservation.
Is that correct? A non-Indian sexual predator comes back to
live on your reservation decides I'm not going to register no
matter what the tribe has decided I should do. Do you feel like
you have the capability of taking action and imposing a civil
penalty that will stick on a non-Indian in that circumstance?
Mr. Suppah. I guess the Adam Walsh Act does not require
tribes to have a sex offender registry. So that kind of loop we
wanted to address that by amending our tribal code to make it a
criminal violation for failure to register.
The Chairman. Let me ask any one of you who could answer
this about the Bureau of Prisons and the willingness of the
Bureau of Prisons to notify tribal governments before releasing
sex offenders. Who has experience with that?
Mr. Lopez?
Mr. Lopez. We get our information, as I mentioned, when
they are released through the halfway houses, because when they
release, they just don't come home. They go through a halfway
house, if you will. Once they are released from there, we get
out information if they say they are going to come back to the
nation, then their probation officers will let us know. That is
how we find out.
The Chairman. But the Bureau of Prisons does not let you
know, as a routine matter?
Mr. Lopez. No.
The Chairman. In the law enforcement bill that we will be
introducing, we do have a provision in that law enforcement
bill that would require the Bureau of Prisons to share that
information with tribal governments.
Mr. Moore. That would be great. Likewise at Rosebud, we
simply don't have that access to NCIC as well. In addition to
that, we do have a civil infraction in our law for non-Indians
for non-compliance of registering with our law, with a maximum
penalty of a fine of at least $500, but not more than a $1,000
fine. We understand we can't incarcerate them in our local
jail, but we can fine them. So we have made it a civil
infraction for non-Indians not registering within our
jurisdiction.
The Chairman. Has that been challenged at all?
Mr. Moore. Not at all.
The Chairman. Do you feel confident that you can make that
stick?
Mr. Moore. We can make it stick.
Mr. Gregory. Mr. Chairman?
The Chairman. Yes?
Mr. Gregory. I also believe that, I believe I have the
right cite, 18 U.S.C. 2250, which makes it a 10-year felony for
someone who is supposed to register or to update their
registration, and who either travels to Indian Country, travels
out of Indian Country, or resides in Indian Country, could face
Federal prosecution, serious Federal prosecution.
I would also like to add, and I am sorry to add this, but I
am very impressed with the law enforcement bill that I have had
the opportunity to review. All law the enforcement community
and the tribal community in Michigan strongly supports that
bill. We would even look favorably with the Department of
Justice taking over the administration of Indian Country law
enforcement.
One last recommendation would be that----
The Chairman. Wait a second. Say that again? That is a
surprising statement.
Mr. Gregory. We have spoken about it many times.
The Chairman. When you say we, you are speaking for whom?
Mr. Gregory. I am sorry, the tribal law enforcement
community. We have a Michigan Law Enforcement Association that
meets on a monthly basis. They have often stated their
preference to have Indian Country law enforcement come under
the aegis of the Department of Justice rather than the Bureau
of Indian Affairs.
The Bureau of Indian Affairs lacks a lot of the resources
necessary, the technology to take use of the statistics that we
are required to supply to them. Their number one priority is
not law enforcement, whereas under the Department of Justice it
is.
The Chairman. Ms. Johnson, what do you think of that?
Ms. Johnson. That is a loaded question.
[Laughter.]
Ms. Johnson. Well, you know, I think that Indian Country
has always wanted the Department of Justice to step up to the
plate more, to take on the responsibilities, but understanding
the jurisdictional and unique issues in Indian Country.
Unfortunately, the way that Justice is structured right now
where the tribal office sits within the structure it is not
high enough in the system for us to be able to have the right
kind of leadership from the helm.
We did mention that when I met with the Attorney General to
let him know that we really felt that in order to make the
changes necessary for Indian Country to feel more comfortable
with Justice, they would have to restructure themselves to have
a representative or an office within his office to take some
direction.
Once that step is developed, then maybe Indian Country
might feel a little bit different. I think a lot of folks in
Indian Country might support that. Others would be scared of
that just because of the unknown of what Justice could really
do.
The Chairman. Let me ask you to start at the top, Ms.
Johnson, with me. I repeat what I said earlier today. I think
there is no question that this Country has moved in an
aggressive way to say we are not going to continue to do
business the way we used to do business with sexual predators.
Arrest them, put them in prison, no matter how violent. When
they are let out of prison, you wave and give them a few bucks
and they are off someplace, not monitored.
We can't continue to do that. Those that are at risk for
re-offending at high risk, and that is judged by psychiatrists
and others. Mr. Rodriguez, who I described earlier, was judged
to be at high risk and sure enough he murdered someone.
We are not going to discontinue doing that, so we are going
to do something very different. If that different approach
means a registry that is significant, it is required, it is
taken seriously. If that is the case, then that registry and
the treatment of law enforcement all around the Country with
this issue has to be thoughtful, serious and complete. You
can't do that unless you include all aspects of this Country.
The sovereignty of reservations is very important, but its
sovereignty is no different than the sovereignty of our
government. If we decide we are going to do something, we have
to do it together.
So I understand the difficulty of Indian tribes trying to
respond to things that they are not quite certain with respect
to the requirements. So go through with me, if you will, if you
can, from the most important to the least important, the five
or six things that need to be resolved in order to answer the
questions that the tribes have about how to comply effectively
with the Adam Walsh Act.
Ms. Johnson. Okay. First of all, the tribes that are left
out. What we are hearing, you know, the Public Law 280 States
were left out of the system.
The Chairman. Explain that for the record, Alaska and
California.
Ms. Johnson. Okay. Alaska, California, there is a list,
Minnesota, it goes on. There are also some that were recognized
States that came after the actual law of Public Law 280, but
they have been exempted from the Act for compliance under the
way that this is, and they would be subject to the States. But
the difference is that for California, for example, a lot of
tribes in California, a Public Law 280 State, a lot of
California tribes feel very passionately about this issue.
Indian Country is totally with you about saying we need to
have a seamless operation, and we totally want to address sex
offender registry because our people, our women, our children
have such high percentages of being affected by this. But what
we want to make sure is that, you know, the States now can
decide whether or not how a State is going to provide that
oversight and monitoring within the tribal community. We think
the tribal communities should be able to have some say in how
that works.
For example in Alaska, 226 tribes out there, villages that
are out there, even their own State legislature, a
representative said the State doesn't have the resources to be
able to monitor those remote villages. Well, the tribes are in
those remote villages and they want to be able to monitor, but
the exclusion of the tribes from being included in the Adam
Walsh Act also excludes them from being able to get resources
necessary to help implement and to provide the seamlessness of
the registry system.
That goes the same thing with the Bureau of Indian Affairs.
By not including the Bureau of Indian Affairs in here at all,
you have a whole, you have detention centers, you have law
enforcement agencies, you have prisons that are operated by the
Bureau of Indian Affairs who don't have to comply. So you have
a gap in compliance that just simply needs to be addressed.
You have, as I said before, the Attorney General's
authority to strip tribal governments. It is very disconcerting
to me that, one, Congress would want to give their oversight,
their plenary power over tribal communities to the Attorney
General to decide whether or not they are in compliance, and
then could actually strip them of their civil and criminal
jurisdiction and transfer that jurisdiction over to the State
without Congress actually setting up standards of how that
would happen.
But mostly, I am more concerned about the tribes, tribes
who don't know what the rules are of the game at this point.
There is no requirement in the Act for them to develop, in
consultation with tribes, a due process or technical assistance
to be able to help a tribe come into compliance, so it simply
sets a precedent that is just really disconcerting to NCAI.
And then of course, just like when we experienced with the
welfare reform programs, tribes aggressively wanted to be
supportive. Tribes and States worked together, and NCAI was
very involved in that. But the States had a leg up because they
had been having systems in place for decades before. This is
the same thing. The States have had systems and resources to
develop those systems for at least a decade, and tribes are not
there. We want to get there. We want to participate. We care
about this in our communities, but we don't have the
infrastructure.
With the resources that could be directed to it to help us
develop the infrastructure, I have had more meetings with
tribes. I cannot believe it. The fact that we have this many
tribes who had to affirmatively opt in is a statement from
Indian Country because that is really hard to do. But to get
all of them, almost all of them--but a very small percentage of
them--to opt in says they care about this issue and we want to
do something to address it, but we need the resources and we
need the collaboration.
The challenge for us is this fighting that is happening--I
am not saying fighting--but the confusion that is happening
between the Violence Against Women Office and the SMART office
on implementation of Adam Walsh is causing confusion for Indian
Country. We need to be able to sit down and say, okay, how is
this going to work? How are we going to have a seamless
operation between those two systems? Because Indian Country
can't afford to have two separate systems. We need to have one
system that recognizes the responsibility of both of those
issues, and then we can move forward in implementing our system
that will coexist with theirs.
We as governments should have the same right as other
governments to have access to the data systems of the FBI. We
shouldn't have to go through a bunch of hoops with another
government that determines how we qualify.
Those are just a few of the issues.
The Chairman. Well, that is enough.
Ms. Johnson. Okay. Thanks.
[Laughter.]
The Chairman. You have raised I think some important
points. I would say that the legislation we will be introducing
also addresses a portion of this with respect to the NCIC and
the availability of that important data.
You make a point that I think is important for the
government to recognize, and that is over a period of some
years we have developed certain registries, including sex
offender registries. In fact, some tribes had done so prior to
the enactment of the Adam Walsh Act as well, not very many, but
some had done so.
But I think you make an important point that you don't just
ramp up a registry and have the base of knowledge and the
experience for doing that in a short period of time, because
the States haven't done it in a short period of time. So I
think that is important for us to understand and recognize.
I do think what we want at the end of this is a product
which is contributed to by all of the jurisdictions in this
Country so we have an adequate database, a good effective
database, that is a registry including all of the names of
those that we should be aware of who are violent sexual
predators, so that we can keep track of them and understand who
they are and where they are.
It doesn't pay for us to create a system that has a
patchwork of holes. I mean, that is not workable and doesn't
protect the American people.
Well, again I indicated to you we are going to be
introducing I expect either next Monday or Tuesday the major
law enforcement bill. John and Allison on our staff, and many
others, Heidi, have done a lot of work on this legislation. We
have traveled across the Country. We have consulted with
tribes. We have consulted with other levels of government from
county sheriffs to attorneys general of the States, to the
Justice Department.
We have done the due diligence you should do to try to
figure out what is happening, how do people feel about it, what
are the best of the ideas that are available, and try to
incorporate that into the bill.
We have also now been able to get bipartisan support for
that legislation which we will introduce. I won't describe the
names today, but we will do that when we introduce it on the
floor of the Senate. I think that will move us forward, and I
think also should provide at least some assistance in some of
the areas Ms. Johnson you described with respect to the
deficiencies that exist in tribes trying to comply with the
Adam Walsh Act. So stay tuned for that.
I want to thank all of you for coming today to be willing
to testify and provide some additional information.
Mr. Moore?
Mr. Moore. Just one last comment. Not enough can be said
about the work of victims' support groups throughout the United
States in Indian Country, and the coalitions of these groups
who have done a significant amount of work to help tribes and
tribal leaders understand the import of establishing their own
laws for the implementation of Adam Walsh, like the White
Buffalo Calf Society and others throughout the Country, who
have just done an enormous amount of work to help us be able to
do our work to protect our children and our whole community.
I needed to say that because I serve on the VAWA task force
at NCAI, so I know the incredible passion that they have to
ensure that Adam Walsh is a successful piece of legislation
that is effective in Indian Country as it is throughout the
United States. Not enough can be said about the great work and
diligence that they have done for us.
The Chairman. I think that is important to say, and I
appreciate your making that point. There is one other point
that I think is important, and that is as we deal with this
issue of sexual predators and violence against women, and sex
offenses, it is very important for us to have trained
healthcare officials, nurses, doctors and others. It is
important even for the remote sites to have rape kits and
others things available for those who are trying to treat
victims.
We have had testimony before this Committee about just the
fundamental things that have been missing that do need to be
restored and the training needs to be developed. It is why I
and Senator Murkowski and others added the $250 million to the
authorization bill that passed yesterday--$250 million to the
Indian Health Service. We got a substantial amount of money to
law enforcement, thanks to two of our colleagues, Senator Kyl
and Senator Thune. We have all worked together. I have done
hearings in Arizona. Senator Thune and I have worked together
on the Standing Rock issue.
So we have worked on a lot of these issues, but especially
the issue of Indian health care, which I think is in full
crisis, adding $250 million, one-half of which would be
destined to improved facilities, and the other half of which
would be destined to try to address the contract health issue
dilemma that we have.
It is important as we continue to try to add money and make
the Indian Health Service work more effectively. I think it
does not work very well, frankly, to just do the basics out
there in the Country on the reservations, with the ability to
have trained people to help victims as they come in and are
being treated.
Again, I want to thank all of the witnesses for traveling
to Washington, D.C., except for Ms. Johnson who just comes
across the street. Thank you for traveling and participating
today and giving us your information. We will use this as we
proceed to try to address what we might be able to do to
respond to your concerns.
This hearing is adjourned.
[Whereupon, at 11:09 a.m., the Committee was adjourned.]
A P P E N D I X
Prepared Statement of Hon. Myra Pearson, Chairwoman, Spirit Lake Tribe
My name is Myra Pearson, Chairwoman for the Spirit Lake Tribe
located in the state of North Dakota. I have been following the Adam
Walsh Act for several months. I have concerns regarding both the
procedure and the substantive provisions of the law and the regulations
that implement that law.
As a tribal leader, a grandmother and a mother the safety and well-
being of our children and our members are at the forefront of the
issues that I consider to be imperative to the future of our tribe. I
believe that our children are sacred and we must do everything we can
to protect them and to ensure their future. It is for this very reason
that I am troubled by the Adam Walsh Act.
I believe that the underlying principle and purpose of the Act, the
protection of community members, creates common ground between local,
state, federal and tribal leaders, however the road to that goal of
safeguarding our members is where we clearly differ. I find it
extremely condescending and presumptive of the federal government to
pass legislation that not only attacks our sovereignty but that also
presumes to provide a road map that will tell us how to best safeguard
our own members. At Spirit Lake we were looking at resolutions to this
issue far before the passage of the Adam Walsh Act, but we were doing
it in our own way and in our own time. Now we are being forced to do it
in a federal way and on federal time.
Despite my objections to the procedure in which this law was passed
I also have several substantive concerns about the language of the Act
and the regulations that have been drafted to implement the Act. I plan
to submit more succinct legal comments on the regulations themselves,
but initial concerns include:
The classification process for various sex offenses . . . this
process conflicts with existing federal law such as the ICRA
which constrains the ability of our tribal court to administer
justice . . . how will such conflicts be resolved?
The provisions dealing with recognition of tribal court
convictions. again these provisions conflict with existing
federal laws such as the ICRA . . . . If tribes do not provide
legal counsel to defendants then the court orders will be no
good outside of Indian country . . . I wonder where the funds
will come for to pay for court appointed counsel and I wonder
if adopting what many believe to be a broken system that has
been implemented by states and federal authorities is the best
way to administer justice on our reservation. I also ask what
exactly is assistance of counsel . . . if we provide lay
advocates will that suffice? Who will ultimately determine
whether the defendant's rights were adequately preserved . . .
is this not a right of the tribal courts to first determine.
And finally what about the victim's . . . this law is
purportedly in place to protect victims and to prevent future
victimization by sex offenders, however if tribal court orders
are exempted from the recognition process because we do not
have the financial ability to substantially comply with federal
laws then I wonder whether we are truly delivering justice to
those children, individuals and families who have already been
victimized.
In closing it is one thing for tribes to ``opt in'' by passing a
resolution, and we can get our attorney's to draft a code that
substantially complies with the federal mandate, but I question whether
we have the necessary financial capabilities, infrastructure and
support to enforce these resolutions and federal laws and whether three
years is enough time to get to where we need to be. Will the
implementation of this law truly protect our children and our members
or will this be another law that is shelved and basically deemed
unenforceable? Are these laws going to be great in theory but not
rooted in reality.
Finally, while we are trying to jump through federal hoops, and
filing for extensions and scrambling to maintain the sovereignty we
have left where are the members and victims? We need to take action now
and in our own way and in our own time to protect our own members. We
learn from experience and that prompts action but when it comes to sex
offenders we know the problems and we know what needs to be done.
We would request also that we continue to be involved in the
consultation process concerning the language and implementation of
these regulations.
______
Prepared Statement of the Spirit Lake Sioux Tribe
The Spirit Lake Tribe strongly opposes the procedure followed by
the United States Congress in the passage of the Adam Walsh Child
Safety and Protection Act, particularly the Tribe opposes the lack of
meaningful consultation prior to the passage of the Act and views this
process as a violation of tribal sovereignty and further the Tribe
strongly objects to the ``use it or lose it'' provisions of the Act in
so far as they mandate Tribes to opt in or risk losing jurisdiction
with respect to the registration and monitoring of sex offenders.
With that this comment shall not continue to focus on the obvious
failings of the legislation itself nor on the process by which the
legislation was passed but rather shall focus on the regulations that
are being proposed to interpret and implement SORNA.
In particular the Tribe finds cause for objection and opposition to
the following:
The provisions dealing with retroactive application of the
law is somewhat of a concern especially when addressing
juvenile delinquencies. The procedure of registration and
notification was not contemplated by the Court at the time of
the conviction and the fact that our juvenile court focuses on
rehabilitation runs contrary to the retroactive application of
this law as it leaves no discretion for the court to determine
whether registration provisions are necessary; and
The regulations address the development of and access to
software but do not address technological capabilities
associated with the use and maintenance of that software. In
other words what type of servers will be necessary to utilize
the software and where will such funds come from?; and
The provisions that address ``substantial compliance'' are
too vague. There should be some factors listed to establish
criteria that can be applied to determine whether a tribe is in
substantial compliance. This is necessary to avoid entirely
subjective review of programs. Also there should be provisions
that address with some specificity the options available to
tribe's should they be found to be in noncompliance. Also there
remains some question as to how will substantial compliance be
determined. Will the SMART office simply review tribal
legislation or will the process involve site visits, proof of
technological capabilities etc.
The Tribe strongly objects to the delegation of jurisdiction
provisions of both the Act itself and the regulations. Despite
the fact that Spirit Lake Tribe has opted by resolution to
develop and administer its own sex offender registration and
notification program, such a decision should not have to be
made in order to retain our jurisdiction or risk losing it to
the state. We would like to see the Act itself amended
accordingly and would consequently request that such language
also be removed from the regulations.
The regulations contain various provisions that seems to
directly conflict with existing federal law such as the Indian
Civil Rights Act. In particular the provisions found at section
VI(A) pertaining to full faith and credit of tribal court
convictions is highly objectionable because it allows
jurisdiction to require that tribal convictions were obtained
only where a defendant was afforded assistance of counsel. The
Indian Civil Rights Act only requires that individuals be
informed of their right to counsel, not that the tribe provide
counsel to indigent defendants. The regulations should be
amended to clarify this apparent conflict. Additionally some
reference should be made to the use of lay advocates. Often
defendant's are represented by lay advocates rather than
licensed attorneys. These lay advocates know and understand the
tribal court and tribal law, however there is no indication
that convictions obtained where defendant's were represented by
lay advocates would be subject to registration requirements in
other jurisdictions.
The Tribe objects to the application of the Tier
classification system due to the fact that tribal convictions
and sentences are limited by existing federal law and not by
the views, policies or laws of the tribes. In other words the
tribes have been restricted by federal law to sentences of 1
year or less and now sex offenses are being classified in terms
of severity based upon those sentencing restrictions. In tribal
court someone who would be subject to a 15 year sentence for
aggravated sexual assault would only face 1 year in tribal
court for the same offense and the same facts. Consequently the
use of sentencing as a classification tool is not effective and
should be modified.
In terms of the required registration information the Tribe
objects to the requirements that tribal or traditional names be
registered. It is unlikely that this process would assist in
the tracking and monitoring of sex offenders and it is likely
that the use of this information would negatively impact
individuals who have the same tribal or traditional name as a
convicted sex offender. The Tribe would therefore ask that this
provision or requirement be removed from the regulations
entirely.
Finally from a practical standpoint the Tribe is concerned
that neither the Act nor the regulations address implementation
issues in terms of program development and program support for
tribes that are opting to develop and administer their own
programs.