Sexual Abuse of Indian Children and Tribal Government Compliance with
The Adam Walsh Child Protection and Safety Act of 2006
Part I: Introduction
In 1995, American Indian and Alaskan Native youth from across the country gathered to testify at a hearing of the Committee on Indian Affairs on the challenges facing American Indian youth. After speaking on the welfare of Native American children with regards to mental and physical health, a young man from the Sisseton-Wahpeton Dakota Nation concluded his address stating, “[t]he challenges that we face are ones that will be devastating to our people, because without us, there is no future.” Despite the statement’s simplicity, it conveyed a grave message to Congress: the needs of Indian children and families must not be overlooked.
One of the most significant challenges in Native American communities is childhood sexual abuse. American Indian children have a victimization rate of 13.9% per 1,000 children of the same race. This statistic is exceeded only by the victimization rate of African American children, who experience the highest rate of physical and sexual abuse at 16.6% per every 1,000 African American children. Many risk factors that increase the incidence of child abuse, physical or sexual, are significantly prevalent in the Native American community. Some of these risk factors include: poverty and its inextricable relationship to unemployment, substance abuse, unstable family relationships, criminal behavior of a parent, pre-existing mental health issues exacerbated by the symptoms of stress, and geographical isolation its effect on access to appropriate social assistance. The most indicative of these risk factors families who live in poverty. According to the United States Census Bureau’s 2008 American Community Survey, 11.7% of the Native American and Alaskan Native population lived below 50% of the federal poverty level, compared to 4.4% of the white population. The statistics are even more disparate with regards to the percentage of the population living at or below the poverty level. While 10.5% of the white population lived at or below the poverty level, a shocking 25.3% of the Native American and Alaskan Native population was living at this same level. Furthermore, 4 of the 10 United States counties with the highest all ages poverty percentages are within South Dakota, each lying substantially or entirely or within an Indian Reservation. Three different reservations are represented in those four counties: the Crow Creek, Pine Ridge, and Cheyenne River Reservations. These statistics are highly alarming on their own, notwithstanding poverty’s relationship to the increased risk of childhood sexual abuse.
The book The Unredeemed Captive is a story about the French-Indian raid on the small town of Deerfield Massachusetts. The raid is not a total surprise to the people of Deerfield, they find out a few days prior to the incident. They hear of towns east of them being attacked. The town of Deerfield did not feel that they were to be affected by the Indians. These few extra days to prepare for the “ ...
In 1978, the Indian Child Welfare Act was passed by the United States Congress and codified at 25 U.S.C. §§1901-63. In an effort to “promote the stability and security of Indian tribes and families . . .,” the ICWA established minimum federal standards for child custody proceedings involving the removal of Indian children to adoptive or foster care placements. The Act also allocated funds for the creation of child and family service programs. While the ICWA does not specifically mention childhood sexual abuse, the Act was Congress’s first official recognition that “the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe[.]” The Act’s language suggests an admission by Congress that most Indian children were not being adequately protected. This landmark act paved the way for future legislative action addressing the health and safety of Indian children. Vital social programs addressing the particular needs of Indian families were the result of legislature such as the Indian Child Protection and Family Violence Act of 1990 and the Foster Care Independence Act of 1999.
The Young Offenders ActA Continuing Debate There is no question in society as to whether or not young people are committing crime. In fact, since '1986 to 1998 violent crime committed by youth jumped approximately 120%.' The Young Offenders Act is a heated debate in today's society, and one of the most controversial Acts in Canadian history since it was introduced in 1984. Some people think a ...
Part II: sex offender Registration and Notification Legislative History
Throughout the 1990s and extending into the 2000s, cases involving the abduction, murder, rape, abuse, and other atrocities committed against children gained national attention. Frequently, the perpetrators were repeat offenders with lengthy records of prior sex offenses. These highly publicized cases sparked public outrage and inspired legislative attention. Prior to 1990, shockingly, only twelve states had registration requirements for convicted sex offenders. In 1990, Washington State became the first state to enact registration and community notification laws. While widespread adoption of similar laws promptly followed in a significant number of states, Congress did not address registration requirements for sex offenders until 1994.
At the forefront of sex offender legislation was the Jacob Wetterling Crimes Against Children and Sexually Violent Offender Registration Act of 1994. The Wetterling Act established guidelines for states to track sex offenders, directing states to annually confirm the residence of non-violent offenders convicted of a sexual offense against a minor for ten years after the offender’s release into the community. Sexually violent offenders were required to confirm residence quarterly throughout the offender’s lifetime. Furthermore, the Act dictated that the development of community notification systems was permissible, but not mandatory. Such notification became mandatory with the subsequent amendment of the Wetterling Act, widely referred to as Megan’s Law. An additional result of Megan’s Law as that sex offender registration records were made available to the public, if requested.
A number of legislative acts followed, each progressively strengthening the operation of sex offender registration and notification systems nationwide. It is undeniable that ground-breaking progress was made in the implementation of federal registration and notification systems throughout the 1990s. Throughout this progress, however, considerable concerns began to emerge. One of the most significant shortcomings of the previously discussed legislation was the failure to address implementation of federally mandated sex offender registration and notification programs in Indian country. No jurisdictional provisions were in place requiring tribal compliance with the legislation. This “[e]ffectively [meant] that sex offenders [could] continue to reside in Indian country undetected and unbeknownst to the community.” Additionally, the new registration and notification systems further hindered communication and information sharing between tribes and states.
For many decades, women in Australia have been subject to inequality and unfairness in a wide range of areas in employment. They have been discriminated based on gender, marital status, pregnancy and family responsibility. As well as this, many women have faced the most common form of discrimination based on sex - sexual harassment. In the past years, however, the legal system of Australia has ...
Part III: Enactment of the Adam Walsh Child Protection and Safety Act of 1996
Congress addressed this jurisdictional issue with its passage of the Adam Walsh Protection and Safety Act of 1996, the language of which currently remains in effect. An understanding of the jurisdictional implications necessitates a review of the AWA’s purposes and features. The essence of the Act is encompassed in Title I of AWA, entitled the Sex Offender Registration and Notification Act. SORNA commences with a poignant dedication to seventeen named children and young adults who were sexually assaulted and many of whom were subsequently murdered. One of these named victims is Dru Sjodin, who was a 22 year-old student at the University of North Dakota when she was sexually assaulted and murdered. Sjodin’s murderer was an unregistered sex offender who had recently completed 23 years in prison for a prior sex offense conviction. The Adam Walsh Act was enacted to serve several purposes: “to reformulate “the federal standards for sex offender registration in state, territorial and tribal sex offender registries, . . . to make the system more uniform, more inclusive, more informative and more readily available to the public online;” and to amend “federal criminal law and procedure, featuring a federal procedure for the civil commitment of sex offenders, . . . a number of new federal crimes, and sentencing enhancements for existing federal offenses.””
The Adam Walsh Act did not create a national sex offender registry. On the contrary, the AWA is a registry law that expands the previously established National Sex Offender Registry (NSOR) maintained by the Federal Bureau of Investigation. In addition to this expansion, the Act provides a baseline sex offender registration standard, which is a minimum standard for federal registration compliance. Each jurisdiction maintains the authority to prescribe a more stringent standard. The Office of the Attorney General has made suggestions of permissible increased actions that a jurisdiction may take in maintaining its own sex offender registration systems, such as a reporting system that requires registration by broader classes of convicted sex offenders and the verification of the offender’s registered address with greater frequency than those requirements identified in SORNA. Additionally, a jurisdiction may include on its sex offender locator website more personal information from a broader class of registrants than SORNA guidelines require. As the requirements of SORNA are discussed, it is important to be mindful that these requirements are merely the minimum acceptable standards prescribed by the federal government and that individual jurisdictions may have more restrictive requirements.
Young Offenders These days more and more young people are turning to crimes. These crimes are being committed by young offenders of all ages. The crimes they a recommitting are get even more and more serious and in the last five years the percentage of youngsters committing more crime has increase by more then 50%. Young offenders are committing these crimes because the know that the punishment is ...
The Adam Walsh Act calls for a comprehensive restructuring of the current sex offender registration database by creating three tiers of registrants based on severity of the offense, with increasingly onerous requirements and consequences for the offender. This is a strict liability scheme; judges and prosecutors have no discretion regarding an offender’s SORNA classification, and the AWA provides no provision for an offender to challenge that classification. Beginning with the most serious offenders, Tier III includes those whose offense is punishable by imprisonment for more than one year and is comparable to or more severe than the following four offenses, including attempt or conspiracy to commit such an offense: aggravated sexual abuse or sexual abuse whether against a minor or an adult; abusive sexual contact against a minor whose has not attained the age of 13 years; “involves kidnapping of a minor” (unless committed by a parent or guardian); or an offense which occurred after the offender became a tier II sex offender. These offenders must report in-person quarterly and keep their registration information current for life, or 25 years if a “clean” record for that long and the offense was a delinquent adjudication.
After the American Revolution the new United States government hoped to maintain peace with the Indians on the frontier. But as settlers continued to migrate westward they made settlements on Indian lands and demanded and received protection by the Army. Tecumseh, a Shawnee chief, organized several tribes to oppose further ceding of Indian lands. But they were defeated in 1811 by Gen. William ...
Tier II offenders are those whose offense is punishable by imprisonment for more than one year and is comparable to or more severe than the following offenses and is committed against a minor, including attempt or conspiracy to commit such an offense against a minor: sex trafficking, coercion and enticement, transportation with intent to engage in criminal sexual activity, abusive sexual contact, or an offense which occurred after the offender became a tier I registrant. Also included in this list are any offenses involving the following: use of a minor in a sexual performance; solicitation of a minor to practice prostitution; or production or distribution of child pornography. Tier II offenders must provide accurate registration information semiannually in-person for 25 years and no “clean” record exception. Finally, Tier I is a catch-all for those who are not Tier II or Tier III sex offenders; these offenders must annually report in-person to update information for 15 years, with a five-year reduction for ten years of a “clean record.” A clean record means that the offender was not convicted of either a felony or sex offense, has complied with any probation or parole stipulations, and has successfully completed “an appropriate sex offender treatment program certified by the jurisdiction or the Attorney General.”
Despite the variance in duration requirements for reporting and notification, criminal history and the types and amount of personal information an offender must provide for the registry is common to all offenders regardless of tier classification. In addition to compliance with the standards for record keeping of personal and criminal information, each jurisdiction in which a sex offender lives must maintain the offender’s fingerprints, photograph, palm prints, and DNA sample. For the purpose of monitoring jurisdictional compliance with the provisions of AWA, the Act created the Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART) Office.
All offenders are required to register initially in the jurisdiction where the offender was convicted prior to release from custody or within three days of conviction if they are not incarcerated, and upon each change of residence thereafter. As a result of the enactment of AWA, an offender’s failure to comply with the requirements previously discussed can result in the federal felony “failure to register.” The punishment for the offense failure to register is codified at 18 U.S.C. § 2250, the AWA’s enforcement provision. The United States Attorney General issued guidelines on sex offender registration and notification acts, stating that “[t]he applicability of the SORNA requirements is not limited to sex offenders whose predicate sex offense convictions occur following a jurisdiction’s implementation of a conforming registration program. Rather, SORNA’s requirements apply to all sex offenders, including those whose convictions predate the enactment of the Act.”
Salus populi suprema lex (The welfare of the people is the supreme law). Although the intention behind this term is the good of the people, it has been time and again used by the perpetrators of power for justifying their unconstitutional and illegitimate actions and laws. The concept of constitutionalism is the doctrine which governs the legitimacy of government action. A power may be exercised ...
The provision for retroactive applicability of 18 U.S.C. § 2250 has been challenged on constitutional grounds as an Ex Post Facto law, which is a violation of the United States Constitution’s prohibitions on Ex Post Facto laws found at Article I, section 9, clause 3 as well as Article I, section 10, clause 1. The Ex Post Facto Clause provides that Congress and the States may not enact a law “which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.” Two elements must be present for legislation to be found in violation of the Ex Post Facto Clause: (1) the legislation applies retroactively; and (2) the legislation disadvantages the retroactive offender. For a proper analysis of whether legislation is prohibited by the Ex Post Facto Clause, procedurally, a court must proceed in the following manner:
[D]etermine whether the legislature, by passing a statue, intended to establish “civil” proceedings. Legislative intent to impose punishment after the fact is a prima facie Ex Post Facto Clause violation. By contrast, if the legislature intended to impose a civil and nonpunitive regulatory scheme, then a statue constitutes an Ex Post Facto Clause violation where it is “so punitive either in purpose or effect as to negate the State’s intention to deem it “civil.”
The Sex Offender National Registry Act and the 18 U.S.C. § 2250 enforcement provisions have been constitutionally challenged on Ex Post Facto grounds as recently as 2010, when the Supreme Court of the United States heard on writ of certiorari the case of Carr v. United States. The numerous complexities of Ex Post Facto challenges to the SONRA are beyond the scope of this paper; however, the American Prosecutors Research Institute provided a concise summary of the trends in such cases, stating that “[e]ven though a number of district courts have muddied the waters on this issue, it is the criminal statute, and not the sex offender registry scheme, which is most appropriate for challenges under the Ex Post Facto Clause.” The holding in Smith v. Doe provides support for this general proposition; in that case, the Supreme Court found an Alaskan sex offender notification and registration law to be constitutionally permissible, because the state legislature intended the challenged statute to establish a civil, nonpunitive regulatory scheme which was not excessive with respect to its purpose. The Smith outcome appears to have effectively foreclosed many Ex Post Facto challenges to SORNA.
Part IV: Compliance with the Adam Walsh Act in Indian Country
The Adam Walsh Act, specifically the Sex Offender and Registration Act, raises substantial issues for tribal governments. Two aspects of SORNA that have resulted in significant consequences for tribal governments are the expansion of jurisdiction to sex offenders on Indian Reservations for registry purposes and an amendment expanding the coverage of the Major Crimes Act to include “felony child abuse and neglect” on the list of crimes over which the federal government has jurisdiction .
The Adam Walsh Act expanded its definition of “jurisdiction” to include 212 federally recognized Indian tribes. Thus, any individual, including Native Americans, is required to register under SORNA by the reason of a conviction of Federal law, the law of the District of Columbia, Indian tribal law, or the law of any territory or possession of the United States. Similarly, state and territorial systems are required to include tribal court convictions in their registries. Each tribal jurisdiction, however, has two options regarding that tribe’s compliance with SORNA. The precise language of the opt-in terms can be found in section 127 of SORNA under the heading “Election by Indians,” which in relevant part reads as follows:
(1) IN GENERAL. A federally recognized Indian tribe may, by resolution or other enactment of the tribal council or comparable governmental body—
(A) elect to carry out this subtitle as a jurisdiction subject to its provisions; or
(B) elect to delegate its functions under this subtitle to another jurisdiction or jurisdictions within which the territory of the tribe is located and to provide access to its territory and such other cooperation and assistance as may be needed to enable such other jurisdiction or jurisdictions to carry out and enforce the requirements of this subtitle.
The general terms of election by tribes are quite straightforward. By “resolution or other enactment of the tribal council or comparable governmental body[,]” tribes may elect to either (1) carry out the provisions of SORNA by their own means; or (2) delegate the authority to implement SORNA to the jurisdiction encompassing the tribal territory and provide assistance to that jurisdiction in doing so. These general terms, however, become more complicated in light of the subsequent provisions of section 127 of SORNA, entitled “Imputed Election in Certain Cases” which provides as follows:
(2) IMPUTED ELECTION IN CERTAIN CASES. A tribe shall
be treated as if it had made the election described in paragraph (1)(B) if—
(A) it is a tribe subject to the law enforcement jurisdiction of State under section 1162 of title 18, United States Code;
(B) the tribe does not make an election under paragraph (1) within 1 year of the enactment of this Act or rescinds an election under paragraph (1)(A); or
(C) the Attorney General determines that the tribe has not substantially implemented the requirements of this subtitle and is not likely to become capable of doing so within a reasonable amount of time.
The above quoted SORNA provisions 2(A) and (B) within section 127 creates two classes of tribes: (1) those subject to jurisdiction under 28 U.S.C. § 1162, commonly referred to as Public Law 280, which includes those tribes located within the six mandatory Public Law 280 states; and (2) all other tribes, which are designated as the non-Public Law 280 jurisdictions. Different issues regarding the implementation of the Adam Walsh Act in Indian Country arise as a result of this classification of tribes as either Public Law 280 tribes or non-Public Law 280 tribes. A discussion of Public Law 280 is necessary to understand the application of the AWA in tribal jurisdictions.
Public Law 280, which was enacted in 1953, is an expansive piece of legislature that qualified tribal sovereignty as it pertains to criminal and civil jurisdiction over Indian Country. There are six states subject to mandatory Public Law 280 assumption of jurisdiction over Indian Reservations: California, Minnesota (except the Red Lake Nation), Nebraska, Oregon (except the Warm Springs Reservation), Wisconsin (except the Menominee Indian Reservation), and Alaska. Additionally, the remaining states were authorized, at their option, to acquire the same jurisdiction the mandatory states had received by enacting legislation agreeing to exercise that power.
Part V: Public Law 280 Tribes’ Challenges to Section 127 of the AWA
The portion of Public Law 280 that granted criminal jurisdiction to the mandatory states provided that the states could prosecute offenses committed by or against Indians within Indian reservations “to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere in the State or Territory . . . .” With respect to civil jurisdiction, however, states were granted jurisdiction over “civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country . . . to the same extent that such State has jurisdiction over other civil causes of action . . . .” In short, the Supreme Court has interpreted these provisions of Public Law 280 to confer “criminal/prohibitory” and “civil/adjudicatory” jurisdiction to the state over some tribal nations within its borders, leaving “civil/regulatory” jurisdiction to the tribes. This division of jurisdictional authority between the state and tribal governments in Public Law 280 states requires a determination of whether a state law falls within the Public law 280 grant of jurisdiction to the state; if it does not, it may not be enforced in Indian country.
In Public Law 280 states, section 127 of the Adam Walsh Act imputes tribal compliance with the SORNA to the state in which the tribal lands are located. It has been disputed whether the AWA is indeed a law subject to enforcement by a Public Law 280 state, or whether it is instead a “civil/regulatory law” more properly within tribal jurisdiction. If the subject matter of the Act is “civil/regulatory,” state implementation of the provisions of AWA within Indian country raises serious concerns of an improper extension of jurisdiction to the states, beyond the permissible criminal and civil/adjudicatory jurisdiction assumption by the states expressly granted by Public Law 280. In California v. Cabazon, the Supreme Court provided a basic test for determining the classification of a civil law:
[I]f the intent of a state law is generally to prohibit certain conduct, it falls within Pub. L. 280’s grant of criminal jurisdiction, but if the state law generally permits the conduct at issue, subject to regulation, it must be classified as civil/regulatory and Pub. L. 280 does not authorize its enforcement on an Indian reservation.
Application of this test, however, has produced different outcomes in challenges to similarly-worded traffic laws, family laws, and fireworks laws.
State courts in two Public Law 280 states have heard challenges to the AWA; in both cases, the SORNA provisions were upheld on similar grounds as criminal/prohibitory legislation within the scope of jurisdiction delegated to the states by Public Law 280. In the 2007 Minnesota Supreme Court case State v. Jones, the defendant was charged with failure to register as required under SORNA, arguing that the State did not have subject matter jurisdiction over the defendant’s violation. The court rejected this argument after applying an analytical framework that synthesized the basic test established by the Supreme Court in Cabazon and a narrower test the Minnesota Supreme Court articulated in the case State v. Stone. The Stone test was initially adopted in response to the Supreme Court’s statement that “[the test] is not a bright-line rule,” and that “[t]he applicable state laws governing an activity must be examined in detail before they can be categorized as regulatory or prohibitory.” The Cabazon/Stone hybrid test provided as follows:
The first step under the two-step Cabazon/Stone test to determine whether a law is civil/regulatory or criminal/prohibitory is to determine the focus of the court’s analysis: whether to analyze the broad conduct or the narrow conduct at issue. The court will focus on the broad conduct unless the narrow conduct presents substantially different or heightened public policy concerns. When the narrow conduct presents substantially different or heightened public policy concerns, the court will focus on the narrow conduct.
After the court determines the proper focus, the second step in the Cabazon/Stone test is to determine if the conduct at issue is generally permitted but subject to regulation, or if it is generally prohibited. Conduct generally permitted, subject to exceptions, is civil/regulatory, and conduct generally prohibited is criminal/prohibitory. In close cases, the court may utilize Cabazon’s “shorthand public policy test.” Under the “shorthand public policy test,” conduct is criminal/prohibitory if it violates the state’s public criminal policy [emphasis added].
Through the application of the Cabazon/Stone test, the court identified the broad conduct at issue in a sex offender notification and registration law as “residing at an address or moving to a new address by Minnesota residents in general[,]” and the narrow conduct as a “predatory offender residing or moving without maintaining a current address registration with the proper authorities.” Since this narrow conduct clearly “presents substantially different or heightened public policy concerns[,]” it was the focus of the question presented by the second step of the Cabazon/Stone test: whether the conduct was generally permitted, subject to exceptions or if it is generally prohibited. After posing this question, the court made easily made the determination that the conduct of a sex offender when the offender is residing or moving without maintaining a current address registration is unequivocally not the type of conduct that is generally permitted, subject to exceptions. Therefore, the sex offender registration legislation at issue is a criminal/prohibitory law, subject to Public Law 280’s transfer of criminal jurisdiction in tribal lands to the state.
The Minnesota Supreme Court’s holding in Jones tends to suggest that any challenges to section 127 of the Adam Walsh Act regarding jurisdiction beyond that granted to Public Law 280 are without merit; however, as you may recall from Part III of this paper, state sex offender registration and notification acts that have been challenged on Ex Post Facto grounds ultimately have been upheld as constitutional, because of the laws’ nonpunitive regulatory civil nature. Although the Ex Post Facto Clause challenges to AWA have no legal connection to Public Law 280 jurisprudence, “the federal courts have provided implicit support to reconsider Public law 280 tribes’ arguments that the AWA registration and notifications laws encroach upon tribal sovereignty by unilaterally delegating a civil/regulatory responsibility to Public Law 280 states.” Time will only tell how federal courts will construe the provisions of sex offender notification and registration acts when faced with Public Law 280 jurisdictional challenges in the future.
Part VI: Non-Public Law 280 Tribes’ Challenges to Section 127 of the AWA
As you may recall, the second tribe classification created under the “Imputed Election” provisions of SORNA in section 127 of the AWA is the non-Public Law 280 state tribes class. Tribes in these states were given one year to pass a resolution electing to carry out the requirements under SORNA. However, a tribal government’s failure to enact a resolution expressing tribal intention to participate in the national system within the deadline resulted in the delegation of those responsibilities to the surrounding state. Similarly, the consequence for a tribal government who has elected to opt-in for participation in the national registration system but has not “substantially implemented” the requirements of SORNA and “is not likely capable of doing so within a reasonable amount of time[,]” is the retrocession of AWA compliance responsibilities to the state. The time considered reasonable for substantial implementation has been extended several times since the enactment of SORNA. Currently the compliance deadline for all jurisdictions is set for July 26, 2011. However, as of December 2010, only two tribes and one state (Ohio) have been deemed substantially compliant, thus raising a considerable question of whether the quickly approaching 2011 deadline is realistic.
It is interesting to note, that while the language of the AWA authorizes retrocession of tribal participation in the national registration systems to the states due to the failure to make substantial progress in implementation, there are no such provisions for states deemed noncompliant. The National Congress of American Indians (NCAI) vehemently addressed this issue in a letter to the United States Congress, stating, “[t]his is simply a slap in the face to tribes and a reversal of the federal policy of tribal self-determination.” In a letter addressed to the director of the SMART Office, the National Criminal Justice Association expressed similar sentiments when it stated “infringement on the sovereignty of the tribal nations is a matter Congress must address; the regulatory relationship between states and tribes must be severed . . . .” The NCAI’s proposed solution to this perceived injustice is action by the legislature to consider an amendment to the AWA for the purpose of clarifying that “a transfer of civil regulatory authority to a state for purposes of running a sex offender registry will not occur unless the state has been found to have substantially implemented the Act.”
Due to the host of new requirements imposed on participating jurisdictions, it is clear that the Adam Walsh Act has been troublesome for both participating tribal and state governments alike. The most significant impediment for non-Public Law 280 tribes’ participation in SORNA implementation has been the extremely large costs associated with start-up and maintenance of sex offender registration and notification programs. Despite a historic inadequacy of funding for tribal justice systems and public safety measures, many tribes have opted-in as registration jurisdictions, “[b]ecause of a desire to preserve tribal authority vis- à-vis the states[.]” The majority of federally-recognized Indian tribes have never previously participated in sex offender registration and notification systems. However, as a result of the AWA’s precursors from the preceding ten years, such as the previously discussed Wetterling Act and Megan’s Law, all states had at least a primitive sex offender registry in place at the time of the AWA’s enactment. Thus, while states have had difficulties updating and expanding on existing registries, tribal jurisdictions have been starting from scratch. Establishing a registration and notification system in the face of a complete absence of a pre-existing technological infrastructure necessarily calls for more resources and technical support for non-Public Law 280 tribes as compared to states.
This lack of financial resources for implementation of the Act is compounded by the provisions of the AWA that allocate funds for registration and notification programs on the basis of performance and compliance, awarding additional funds for compliance and reduction of funds for failure. Not only does the AWA impose monetary penalties on noncompliant jurisdictions, the Act is also a primarily unfunded federal mandate save for a limited number of highly competitive grants. It seems apparent that in order for timely progress to be made towards substantial implementation of the requirements of SORNA, additional governmental funds must be made available to those jurisdictions with substantial unmet financial needs.
Part VII. Solutions and Conclusion
The final provisions of section 127 of the Adam Walsh Act authorize the arrangement of cooperative agreements between tribal and state governments. The relevant statutory language regarding these agreements provides as follows:
(b) COOPERATION BETWEEN TRIBAL AUTHORITES AND OTHER JURISDICTIONS.—
(1) NONDUPLICATION. A tribe subject to this subtitle is not required to duplicate functions under this subtitle which are fully carried out by another jurisdiction or jurisdictions within which the territory of the tribe is located.
(2) COOPERATIVE AGREEMENTS. A tribe may, through cooperative agreements with such a jurisdiction or jurisdictions
(A) arrange for the tribe to carry out any function of such a jurisdiction under this subtitle with respect to sex offenders subject to the tribe’s jurisdiction; and
(B) arrange for such a jurisdiction to carry out any function of the tribe under this subtitle with respect to sex offenders subject to the tribe’s jurisdiction.
These provisions give states and tribes the option of establishing cooperative agreements to delegate functions of the AWA between themselves; however, such cooperative agreements are not required. It has been recognized among legal scholars and commentators that there is great value in promoting the establishment of tribal-state compacts over rigid divisions between tribal and State sovereignty. Adoption of cooperative agreements allow state and tribal governments to develop “custom-fit” sex offender registration and notification acts, which have the potential to significantly reduce jurisdictional tension between state and tribal governments as well as foster communications on an issue common to both state and tribal governments.
Numerous conflicts between the federal, state, and tribal governments have become evident following enactment of the well-meaning Adam Walsh Act and the provisions of the Sex Offender Registration and Notification Act. Before the benefits of full state and tribal jurisdictional participation in the establishment of national sex offender registry systems can be completely realized, it will be necessary for Congress to address the AWA’s potential encroachment upon tribal sovereignty and make legislative efforts to move from oppression towards tribal self-determination. Even more crucial is the idea that federal, state, and tribal governments must not let jurisdictional perplexities overshadow their common interest in protecting children and the public as a whole from sexual predators, no matter where those offenders may establish their residence.