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DOJ moves to implement key part of Tribal Law and Order Act

Thursday, August 20, 2015

President Barack Obama signed the Tribal Law and Order Act on July 29, 2010. Photo by National Congress of American Indians via Flickr

Five years after the passage of the Tribal Law and Order Act, the Obama administration is moving to implement a key provision that will help tribes better protect their communities.

Section 233 of the law requires the Department of Justice to allow tribes to access national law enforcement databases for background checks, fingerprint services, arrest reports and other important information. The mandate, however, has not been fully implemented despite lobbying from Indian Country.

The FBI took a step forward in November 2014 when opened the National Instant Criminal Background Check System to tribal law enforcement agencies to check on backgrounds of people wishing to buy firearms. Even then, the new policy not allow tribes to submit information into the database as required by the 2010 law.

The rule also did not completely address other databases housed by the Criminal Justice Information Services, the federal government's crime-fighting and security hub. For example, tribes aren't able to submit domestic violence protection orders to the National Crime Information Center.

The FBI's Criminal Justice Information Services Division houses criminal databases that local, state, and federal law enforcement agencies -- but not tribal agencies -- can access. Photo from FBI via Wikipedia

The situation will be changing -- albeit on a small scale -- as DOJ moves forward with the first phase of the Tribal Access Program for National Crime Information. A new system will be deployed at up to 10 locations in Indian Country to give tribes greater access to the databases.

“Giving tribal government programs access to national crime databases through DOJ’s Tribal Access Program for National Crime Information is a tremendous step forward towards increasing public safety in Indian Country,” Assistant Secretary Kevin Washburn, a member of the Chickasaw Nation who serves as head of the Bureau of Indian Affairs, said in a press release .

Tribes have long been seeking access to all of the relevant databases. The National Congress of American Indians passed resolutions as far back as 2010 and as recently as 2014 to push DOJ to fully implement Section 233.

"[N]either the FBI or DOJ made attempts to discuss these policy interpretations with tribes as is required by the DOJ Statement on Tribal Consultation," the 2014 resolution stated.

The Cabela's Tulalip, located on the Tulalip Reservation in Washington. Photo from Cabela's

The 2014 resolution noted that tribes typically rely on states and counties to enter tribal court domestic violence protection orders to the National Crime Information Center. But in some cases, the information doesn't make it into the system "thus jeopardizing victim safety, notice to law enforcement and possible subsequent prosecutions of violations of these orders," NCAI observed.

NCAI also called on the state of Washington to work more closely with tribes to help them access the databases. The warning proved to be rather prescient -- just a few months after the resolution was passed at the organization's annual conference in October 2014, federal authorities announced charges against a member of the Tulalip Tribes of Washington who was able to purchase firearms despite being under a tribal court domestic violence protection order.

Had the tribe been able to submit the order directly to the National Crime Information Center, Raymond Lee Fryberg Jr. likely would not have been able to purchase any guns, one of which was used in a fatal school shooting last October. The order was not included in the National Instant Criminal Background Check System so Cabela’s, a privately-owned company with a location on the reservation, did not see any warnings about Fryberg's record.

The Tribal Access Program for National Crime Information, or TAP, was announced at a tribal conference in Tulsa, Oklahoma, yesterday. The Department of Justice characterized it as first step that will depend on funds from Congress to bring the new system to more tribes.

YouTube: The National Instant Criminal Background Check System in Motion

"The Tribal Access Program is a step forward to providing tribes the access they need to protect their communities, keep guns from falling into the wrong hands, assist victims and prevent domestic and sexual violence," said Sally Quillian Yates, a deputy attorney general at DOJ. "Empowering tribal law enforcement with information strengthens public safety and is a key element in our ongoing strategy to build safe and healthy communities in Indian country."

TAP consists of a biometric/biographic workstation that will allow tribal agencies to process finger and palm prints, take mugshots and submit records to the national databases. DOJ had issued a solicitation for such a system last month.

The effort builds on two pilot projects, one biometric and one biographic, that were initiated in Indian Country in 2010. According to DOJ, more than 20 tribes continue to use a biographic system that helps them submit information about offenders to national databases.

"Raising the bar on tools available to Native communities so they can seamlessly share criminal database information will keep tribal law enforcement and other tribal departments updated and connected – allowing them to increase public safety on reservations," Sen. Heidi Heitkamp (D-North Dakota) said in a press release.

Federal Register Notice:
National Instant Criminal Background Check System Regulation (November 20, 2014)