Sovereignty issues plague Adam Walsh Act
WASHINGTON - Violence against women, domestic and sexual abuse are grim enough wherever they occur.
But in Indian country, according to accounts that have emerged from multiple sources over several years, the aftershock is often complicated by practical unpreparedness on the part of health care providers, jurisdictional limitations on police, and off-reservation doubts about the validity of referrals from tribal court and legal systems.
Now another shade of gray further complicates Native participation in a national sex offender registry that would let law enforcement know of a sex offender;s presence in the often remote communities of Indian country. Congress has passed two laws that authorize national sex offender registries. One, the Violence Against Women Act, would establish a national tribal sex offender registry, as well as a related tribal registry of civil and criminal orders of protection issued by tribes and proximate jurisdictions.
The other national sex offender registry, under the Adam Walsh Child Protection and Safety Act, is not Native-specific and does not authorize a tribal orders-of-protection registry. But because it will assign tribal registration duties to states if Native governments and organizations do not respond timely to aggressive deadlines (so far federally unfunded), 198 tribes have agreed to establish their own registries. In addition, the Adam Walsh Act delegates implementation of the new law to Public Law 280 states - Minnesota, Wisconsin, Nebraska, Oregon, California and Alaska - where tribes are held to have compromised certain jurisdictional powers under proceedings.
Suffice to say that still more than sovereignty is at stake. The national tribal registry of VAWA is necessary ''because administrative barriers delayed or prevented the inclusion of tribal data on the National Order of Protection Registry and National Sex Offender Public Registry,'' which in turn hindered all-important access to state-administered criminal information links with the National Crime Information Center, according to a joint publication of the National Congress of American Indians and Sacred Circle National Resource Center to End Violence Against Native Women.
''The effectiveness and credibility of any database [in this case, of registered sex offenders and subjects of court orders of protection] depends on the timely entry of information and the ability to keep that information current and correct,'' the publication states. ''Delayed entry or inaccuracies of information can place a Native woman at immediate risk.''
Virginia Davis, associate counsel at NCAI, summarized a situation that hasn't changed in its essentials since March 3, when she spoke at a meeting of the NCAI National Task Force to End Sexual and Domestic Violence Against Women.
''Unfortunately, the Adam Walsh Act basically tells about half the tribes in the country that if they don't comply with these really onerous mandates that are in the law - that, again, don't really make sense for tribal communities - if the tribes fail to comply with those, then all of the tribe's authority to track and register and manage sex offenders on tribal lands will be given to the state,'' Davis said. ''So it raises some serious sovereignty concerns and we're continuing to really struggle with the Adam Walsh Act.
''It's a really costly law for tribes to implement. No money's been made available for it. The law passed in July of 2006. And here we are now at the beginning of 2008. And basically, you know, when Congress passes a law, then it goes to the executive agencies to really kind of interpret it and give you details, the guidance or the regulations on how you're going to implement that law, and the Department of Justice still hasn't finished their guidelines for the Adam Walsh Act implementation. ... Those guidelines will have the force of law and the tribes will have to comply with them, and we don't even know what they are yet.
''So the Adam Walsh Act is becoming a quagmire, a real challenge for Indian country that I think we're going to keep talking about for the next couple of years.''
Tribes must comply with AWA provisions by July 7, 2009. On a showing of significant effort, two one-year extensions can be provided under the law.
Some states have objected to AWA as an unfunded mandate of the federal government. At the March 3 meeting Robert Moore, a councilman of the Rosebud Sioux Tribe in South Dakota, said tribal and state interests on AWA are evolving in a helpful way.