Compromise to sovereignty or public safety boost?
Adam Walsh Act is coming unstrung in the states
WASHINGTON - The Adam Walsh Child Protection and Safety Act has tribes on the watch against its potential for compromising their sovereignty by empowering states to maintain registries of on-reservation sex offenders.
Because the law, AWA for short, will assign tribal registration duties to states if Native governments and organizations do not respond in time to aggressive deadlines for compliance with its mandates, 198 tribes have agreed to establish their own registries. In addition, AWA delegates implementation of the new law to Public Law 280 states - Minnesota, Wisconsin, Nebraska, Oregon, California and Alaska.
But increasingly, according to Virginia Davis, legislative counsel for the National Congress of American Indians, state hostility toward AWA mandates is percolating up from courts and the public sector. Like tribes, states can be penalized for not implementing AWA;s provisions, yet Congress has appropriated very little money to assist with the implementation; and little more than a year from the statutory date of compliance, the Department of Justice still has not issued guidelines for the complex implementation, despite multiple DoJ assurances that they were close to being cleared. ''Still stuck in the review process,'' Davis said of the guidelines, adding that high-level resignations at the department may have slowed the process.
Meanwhile, the National Conference of State Legislators has issued a policy statement opposed to AWA implementation without more time and funding. A state court in Florida Feb. 18 found that AWA criminal provisions offend the Commerce Clause of the Constitution - interstate commerce being the issue, not Indian commerce. More recently, in a state that had already implemented AWA compliance measures, an Ohio court found that AWA's authorization for retroactively listing past sex offenders on present registries violates the state constitution's ex post facto provision against trying a person twice for the same offense.
The court decisions suggest that AWA might get a great deal of legal attention if it were implemented without amendment, Davis said.
So-called P.L. 280 states, in which certain law enforcement functions in Indian country lodge with the state due to a law from the termination era in Indian affairs - when Congress was actively trying to end the federal recognition of tribes - are also finding AWA a challenge. The new law as it now stands mandates P.L. 280 states to establish registries of on-reservation sex offenders. But as with many of the properly tribal functions assumed by states under P.L. 280, funding from Congress hasn't followed. Davis said representatives from P.L. 280 states have expressed concern about implementing AWA in Indian country.
Carole E. Goldberg, a law professor at the University of California at Los Angeles Law School and faculty chair of the Native Nations Law and Policy Center, said AWA's apparent extension to P.L. 280 states of civil regulatory authority may fly in the face of a 1968 amendment to P.L. 280 that forbids its expansion without tribal consent.
Law enforcement on reservations in P.L. 280 states flared into controversy recently in California, where county deputies have shot and killed three members of the Soboba Band of Luiseno Indians.
Davis said state lawmakers and other officials have begun to pressure their congressional delegations about AWA, increasing the chances that it can be amended in a presidential election year, or at least before the compliance date in 2009.
She gave Minnesota as an example of where states and tribes have carefully negotiated agreements on the treatment of sex offenders on tribal lands, only to see them called into doubt by AWA. ''I think a lot of tribes are trying to implement the law, but it's a frustrating experience because ... there are so many unanswered questions.''