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SORNA: Tribal Election, Delegation to the State and Right of Access

Title I of the Adam Walsh Child Protection and Safety Act of 2006, the Sex Offender Registration and Notification Act (SORNA), created the first opportunity for federally recognized Indian tribes to be included in a nationwide sex offender registration and notification system. SORNA specifies, with some restrictions, that a federally recognized Indian tribe may, by resolution or other enactment of the tribal council or comparable governmental body, elect to function as a SORNA registration jurisdiction (see 34 U.S.C. § 20929(a)(1)(A)).

As with any registration jurisdiction, tribes may use a variety of approaches to meet SORNA's requirements. Tribes may set up their own registration and notification systems, or they may enter into memoranda of understanding (MOUs) and other forms of cooperative agreements with state or local agencies. These MOUs and/or cooperative agreements may be comprehensive and far reaching, or they may be tailored to handle specific functionality (e.g., fingerprint or DNA collection). A tribe may also enter into a consortium with other tribal SORNA registration jurisdictions (see 34 U.S.C. § 20929(b)). States are encouraged to work with tribes implementing SORNA to ensure a seamless system of registration is established across the country.

In certain situations, SORNA dictates that the registration functions for tribal areas be delegated to the state. Some tribes that were eligible to function as registration jurisdictions opted not to be a SORNA registration jurisdiction, either by formal resolution or by simply not making the election, thus delegating the responsibility for registration, notification and enforcement to the state in which they are located (see 34 U.S.C. § 20929(a)(1)(B) and 34 U.S.C. § 20929 (a)(2)(B)). A tribe may also "opt-out" of its previous election to become a SORNA registration jurisdiction, thus delegating the responsibility to the state (see 34 U.S.C. § 20929 (a)(1)(B)). Further, SORNA provides that states are responsible for sex offender registration and notification for tribe(s) subject to the law enforcement jurisdiction of a state under 18 U.S.C. § 1162, which, generally and with some exceptions, includes tribes within the mandatory "PL-280" states of Alaska, California, Minnesota, Nebraska, Oregon and Wisconsin (see 34 U.S.C. § 20929 (a)(2)(A)). Finally, if a tribe that elected to be a SORNA registration jurisdiction is found to have not substantially implemented SORNA within a reasonable amount of time or has not maintained implementation status, the responsibility for sex offender registration, notification and enforcement may be delegated to the state(s) in which the tribe is located (see 34 U.S.C. § 20929 (a)(2)(C)).

In situations where the responsibility for sex offender registration and notification is delegated to the state, the state has responsibility to include these tribes in their sex offender registration and notification scheme. SORNA requires that tribes whose sex offender registration and notification functions have been delegated to the state "provide access to its territory and such other cooperation and assistance as may be needed to enable" the state to carry out and enforce the requirements of SORNA (see 34 U.S.C. § 20929). States and tribes are encouraged to work collaboratively to ensure registration of sex offenders, monitor and track absconders, and notify communities of sex offender registrants.

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Date Created: March 25, 2020