Ninth Circuit Affirms SORNA Conviction of Two Indian Men

Here is the opinion in U.S. v. Begay.

An excerpt:

Defendants argue that SORNA did not require them toupdate their registration with the State of Arizona while they were residing in the Navajo Nation, and that they could notupdate their registration with the Navajo Nation because it had not yet established a sex offender registry. Based on thesepremises, they invoke SORNA’s affirmative defense, which applies when “uncontrollable circumstances prevent[ ] theindividual from complying” with SORNA. 18 U.S.C.§ 2250(b)(1). Alternatively, they argue that if SORNA did require them to update their registration with Arizona, SORNA violates the Due Process Clause of the Fifth Amendment and the Ex Post Facto Clause.
We hold that SORNA required Defendants to update theirregistration with Arizona, and because nothing prevented them from doing so, no “uncontrollable circumstances prevented [them] from complying” with SORNA. Moreover, wehold that this application of SORNA violates neither the Due Process Clause nor the Ex Post Facto Clause. Thus, we affirmthe district court’s denial of Defendants’ motions to dismiss their indictments.

Federal Court Upholds SORNA Under Indian Commerce Clause

Here is the opinion in U.S. v. Coho (D. N.M.), in which the court held that SORNA is constitutional as applied to Indians under both the interstate and Indian commerce clauses acting independentlyCoho DCT Order

An excerpt:

Indian Commerce Clause. It is well-settled that Congress has exclusive and plenary authority to regulate matters involving Indians and Indian lands pursuant to the Indian Commerce Clause. See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989) (“[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”); United States v. Lara, 541 U.S. 193, 200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (“[T]he Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’ ”). This plenary authority permits Congress to enact even criminal laws regulating the conduct of Indians in Indian territory. United States v. Kagama, 18 U.S. 375, 383-84 (1886). Congress has exercised its exclusive jurisdiction in this area by enacting the Indian Major Crimes Act. That Act stipulates that, with respect to offenses committed in Indian Country, FN4 “any Indian who commits against the person or property of another Indian … a felony under Chapter 109A FN5 … shall be subject to the same laws and penalties as to all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a). Coho, an Indian, is charged with aggravated sexual assault against Jane Doe, also an Indian, which occurred on the Navajo reservation in Indian Country. The charge against Coho falls squarely within the terms of 18 U.S.C. § 1153(a), and therefore the United States has exclusive jurisdiction over the underlying crime.

The same power that Congress exercised to enact the Indian Major Crimes Act also allows Congress to enact the civil commitment statute of § 4248 at least as applied to Indians who commit crimes in Indian Country. Congress has a protectorate or trust relationship with Indian tribes and possesses broad power to legislate in the tribes’ best interest. The civil commitment statute clearly lies within Congress’ plenary authority to regulate matters involving Indians and Indian land. While the Fourth Circuit recently struck down the civil commitment provisions of § 4248 as unconstitutional when applied to non-Indian defendants, United States v. Comstock, 551 F.3d 274 (4th Cir.2009), it noted that the law may remain constitutional with respect to “persons within exclusive federal jurisdiction (e.g. residents of the District of Columbia and members of the military).” Id. at 278 n. 4. By virtue of the Indian Commerce Clause, Indians belong in the category of persons over which Congress exercises exclusive jurisdiction. For these reasons, I hold that 18 U.S.C. § 4248 is constitutional under the Indian Commerce Clause with respect to this defendant.

Umatilla Confederated Tribes First Tribes to Implement SORNA

Here is the tribal press release — SORNA first tribe in nation

And the Dept. of Justice press release.

From the tribal press release:

The Confederated Tribes of the Umatilla Indian Reservation learned this week from the US Department of Justice that it is the first tribe in the nation to comply with, and implement, the Sex Offender Registration and Notification Act (SORNA) passed by Congress in 2006. The CTUIR and the state of Ohio are the first two jurisdictions in the country to comply with SORNA (commonly known as the Adam Walsh Act),  according to information released this week by the US Department of Justice.

Challenge to Tribal Implementation of SORNA Rejected

The case is United States v. Lafferty, out of the District of South Dakota. The defendant was convicted in Indian Country of a sex crime, and now argues that since the Rosebud Sioux Tribe allegedly has not implemented its sex offender registry system, he should be let off the hook for failing to register. Not so, says the court.



Student Comment on Adam Walsh Act and Tribal Sovereignty

Brian Dimmer published “How Tribe and State Cooperative Agreements Can Save the Adam Walsh Act from Encroaching upon Tribal Sovereignty” in the Marquette Law Review. Here is an excerpt:

This Comment proposes that because the AWA threatens the tribal sovereignty of both non-Public Law 280 and Public Law 280 tribes, Congress should amend the AWA to require tribe and state cooperative agreements to carry out AWA sex offender registration and notification functions.

US v. Watchman — Indian Country SORNA Case

Here are the materials in United States v. Watchman, out of the District of Arizona. The case involves a SORNA/Adam Walsh Act violation by a Navajo Nation member. The defendant made an interesting argument that may recur in Indian Country, which is that the tribe had not yet implemented its sex offender registration statute.





SORNA Indictment in Indian Country — U.S. v. Senogles

A man residing in Indian Country in Minnesota challenged his indictment violation of SORNA and other crimes on constitutional grounds. In United States v. Senogles, the District of Minnesota rejected the challenges.



Adam Walsh Act: SMART Website Link to Indian Country Materials


Adam Walsh Act

Pursuant to §127 of the Adam Walsh Act all federally recognized Indian tribes are entitled to elect whether to carry out the requirements of this section or delegate the functions to the state(s) in which the tribal land is located.

Tribal Resources

Davis and Washburn on Sex Offender Registration in Indian Country

Virginia Davis (NCAI) and Kevin Washburn (Arizona) have posted “Sex Offender Registration in Indian Country,” forthcoming in the Ohio State Journal of Criminal Law. Here is the abstract:

Congress was first confronted with the issue of sex offender registration following an incident at a BIA Indian school on the Hopi reservation after a BIA school teacher was convicted of molesting 142 Indian boys during a six-year period in the 1980s. The case, which resulted in a criminal conviction and a $50 million civil settlement, left a scar on the national consciousness. Despite this history, Congress all but ignored the needs of Indian victims and Indian tribes when it enacted the Sex Offender Registration and Notification Act as part of the Adam Walsh Act, mandating sex offender registration nationally. This essay criticizes this legislation and the undeliberative and unconsultative process that produced it. It concludes that the legislation might have been far more effective in dealing with sex crimes victimization on Indian reservations if Congress had embraced tribes as equal partners with states in implementing the law’s provisions. In the end, the law is likely to help least the very people who suffer from sex crimes the most. This tragedy could have been averted with a more thoughtful approach and greater recognition of the nuances of jurisdiction and insititutional capacity in Indian country.