Sex Offender Registration and Notification Act: Additional Outreach and Notification of Tribes about Offenders Who Are Released from Prison Needed
Released: 2014-11-18T00:00:00

Letter

Background

SORNA Requirements

The purpose of SORNA is to protect the public from convicted sex offenders and offenders against children by providing a comprehensive set of sex offender registration and notification standards. These standards require convicted sex offenders to register prior to their release from imprisonment or within 3 days of their sentencing, if the sentence does not involve imprisonment. Further, the standards require these offenders to register and keep the registration current in the jurisdictions in which they live, work, and attend school. SORNA implementing jurisdictions are to maintain a jurisdiction-wide sex offender registry and website and adopt registration requirements that are at least as strict as those SORNA established. Convicted sex offenders are required to continue to update or verify their registration information, the duration and frequency of which depends on the seriousness of the crimes they committed. For example, SORNA requires a lifetime registration for convicted offenses in the most serious class such as aggravated sexual abuse (tier III), a 25-year registration for many felony sex offenses or sexual exploitation crimes with minors (tier II), and a 15-year registration for convicted offenses that do not support a higher classification such as possession of child pornography (tier I). SORNA requires in-person appearances depending on the convicted sex offender’s tier classification (tier I annually, tier II semiannually, and tier III quarterly) at established registration locations to update or verify registration information.

Under the act, implementing jurisdictions are to submit basic identifier information for each convicted sex offender, such as the offender’s name, Social Security number, and address to the FBI’s National Sex Offender Registry (NSOR), which is a subfile of the National Crime Information In addition, these jurisdictions are to submit the sex Center (NCIC). offender’s fingerprints to the Integrated Automated Fingerprint Identification System (IAFIS), the sex offender’s palm prints to the National Palm Print System (NPPS), and a DNA sample to the Combined DNA Index System (CODIS).authorized state CJIS Systems Agencies (CSA) to determine which According to FBI officials, FBI CJIS has entities within their states, including tribes, can access these federal criminal databases. The implementing jurisdictions are also to provide information from the registry about the sex offender to (1) appropriate law enforcement agencies (including probation agencies), and each school and public housing agency, in each area in which the individual resides, is an employee, or is a student; (2) each jurisdiction where the sex offender resides, is an employee, or is a student; (3) each jurisdiction from or to which a change of residence, employment, or student status occurs; and (4) any organization, company, or individual who requests such notification, among others.

Tribes’ SORNA Eligibility

Under SORNA, 353 of the 566 federally recognized tribes are ineligible to implement the act, while 214 tribes are eligible. SORNA based tribes’ eligibility on whether the tribe is subject to the criminal jurisdiction of a state under section 1162 of title 18, United States Code, making those tribes that are subject to such jurisdiction ineligible to implement the act.Section 1162 gives states criminal jurisdiction over offenses committed by or against Indians in the areas of Indian country within 6 states—Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin.tribes are generally ineligible to implement SORNA for tribal lands located within these states. The states are responsible for incorporating these tribal lands in state-wide SORNA implementation efforts.

SORNA provided tribes 1 year from its July 27, 2006, enactment, to choose—by resolution or other enactment of the tribal council or comparable governmental body—to either retain the tribe’s SORNA implementation authority and act as a registration jurisdiction or delegate the tribe’s registration and notification functions to the state. however, is automatic for a tribe that did not affirmatively elect to implement the act itself prior to July 27, 2007. SORNA authorizes tribes that retained their implementation authority to enter into cooperative agreements with states and decide which functions to maintain or delegate to the state. The Attorney General can also delegate a tribe’s SORNA registration and notification functions to a state if the Attorney General determines that the tribe has not substantially implemented the requirements of SORNA and is not likely to become capable of doing so within a reasonable amount of time.

Federal Role in Sex Offender Registration and Notification

SMART Office

42 U.S.C. § 16927(a). assistance and grant funds, and administer the standards for determining whether jurisdictions have implemented the law. Eligible jurisdictions submit a substantial implementation package that outlines their implementation efforts for SMART Office review. The package can include tribal laws pertaining to sex offender registration administrative policy and procedures, and the jurisdiction’s public sex offender website, among other things. The SMART Office developed the SORNA Substantial Implementation Checklist tool (described in app. II) that jurisdictions can use to prepare the package.

After reviewing the package, the SMART Office determines whether the jurisdiction has “substantially implemented” or “not substantially implemented” the minimum requirements of SORNA. To do so, the SMART Office must follow the standards set forth in the (1) act; (2) SORNA National Guidelines, issued in July 2008; and (3) Supplemental Guidelines for Sex Offender Registration and Notification (Supplemental Guidelines), issued in January 2011.standard does allow for some latitude, and accordingly, the National Guidelines require the SMART Office to consider, on a case-by-case basis, whether jurisdictions’ rules or procedures substantially implement SORNA.

United States Marshals Service

Pursuant to SORNA, DOJ has designated the U.S. Marshals Service as the lead federal agency in three key missions: to assist state, local, tribal, and territorial authorities in the location and apprehension of noncompliant convicted sex offenders; to investigate violations of the criminal provisions of the act; and to identify and locate convicted sex offenders displaced as a result of a major disaster. USMS has designated a senior inspector in each of its 94 district offices to carry out the agency’s SORNA responsibilities.

Bureau of Indian Affairs

Within the Department of the Interior (Interior), the Bureau of Indian Affairs is responsible for supporting tribes in their efforts to ensure public safety and administer justice within their reservations, as well as to provide related services directly or to enter into contracts or compacts with federally recognized tribes to administer the law enforcement program.major federal crimes, including sexual offenses, committed on, or involving, Indian country. OJS provides oversight and technical assistance to tribal law enforcement programs.

Most Eligible Tribes Have Retained Their SORNA Implementation Authority and Have Either Substantially Implemented the Act or Are in the Process of Doing So

Most Eligible Tribes Retained Their Implementation Authority, and Tribes That Lacked the Resources or Did Not Take the Necessary Steps toward Implementation Had Their Authority Delegated

As of August 2014, 164 of the 214 (nearly 77 percent) eligible tribes had retained their authority to implement SORNA, while the remainder did not retain their authority because they either elected to delegate their authority to a state (24 tribes) or the SMART Office delegated their authority to a state (26 tribes), as shown in figure 1.

According to SMART Office representatives, the agency delegated the SORNA implementation authority of 26 tribes primarily because the tribes (1) chose not to delegate their authority although they did not plan to implement the act, because they thought delegating their authority was equivalent to relinquishing their sovereignty; (2) indicated that they lacked the necessary resources to implement the act in a reasonable amount of time; or (3) were nonresponsive to the SMART Office’s repeated inquiries to gauge the tribes’ interest in implementing the act. Our interviews with tribal council and law enforcement officials from 2 of the 24 tribes that elected to delegate their authority to a state similarly revealed that these tribes chose to delegate their authority because they did not have the necessary resources to implement the act. Furthermore, officials from 1 tribe stated that implementation did not seem worth the expense for their tribe considering the small number of tribal members, the fact that none of the tribal members live on tribal land year-round, and the remote location of their tribal land.

SMART Office Determined That 43 Percent of Tribes That Retained Their Authority Have Substantially Implemented SORNA, and Nearly 43 Percent More Are in Process

According to the SMART Office, 43 percent (71 of 164) of tribes that retained their authority to implement SORNA have substantially implemented the act; nearly 43 percent (70 of 164) have submitted an implementation package, but the SMART Office has not yet made a determination; and 13 percent (22 of 164) have not submitted a complete package. The SMART Office has determined, to date, that 1 tribe has not substantially implemented SORNA, as shown in figure 2 and appendix III. For the implementation status and location of all eligible tribes, see figure 3.

According to the SMART Office, the number of tribes that have submitted implementation packages for review as well as the number of tribes that have substantially implemented SORNA continue to increase.

Representatives of two of the three tribal and law enforcement associations we interviewed in January 2014 said that the number of tribes that had substantially implemented SORNA—at the time, 49 tribes—was far greater than what these representatives said that they expected, given the magnitude of the implementation challenges that tribes face, such as limitations with information sharing, a high staff turnover, and the lack of cooperation between tribes and local law enforcement. We discuss such challenges and steps to address them in detail later in this report. According to the tribes that have submitted an implementation package for review that responded to our survey, it took a majority of these tribes 2 years to submit a complete implementation package to the SMART Office for review. SMART Office representatives said that it takes the office, on average, 6 months from the time it receives a tribe’s package to begin reviewing it. This is because the office’s review depends on a number of factors, such as the availability of SMART Office staff to review implementation packages. At the time of our review, SMART Office representatives indicated that there were three policy advisers on staff to review implementation packages. Additionally, the time it takes for the SMART Office to determine a tribe’s implementation status depends on how quickly the tribe can address any issues the SMART Office identifies in its review and can be affected by factors such as the frequency with which a tribal council meets, and thereby can address the office’s questions.

Nineteen of the 22 tribes that have not submitted an implementation package responded to our survey and provided a variety of reasons why they have not done so, as well as an estimate of when they expect to do so. Specifically, 7 of the 19 tribes did not submit a package because they are in the process of amending their tribal codes, 4 tribes indicated that they needed additional time to complete and submit their packages, and 3 others either currently have agreements or are in the process of entering into agreements with state and local law enforcement agencies to assist with SORNA implementation. Fourteen of the 19 tribes plan to submit a package by the end of calendar year 2014, 2 tribes expect to submit a package in calendar year 2015 or later, and 3 tribes are uncertain about when they will submit a package.

SMART Office representatives stated that the office has granted each of these 22 tribes additional time to submit its package. SMART Office representatives said that they have not set a final deadline for tribes to substantially implement SORNA and that the office will continue to work with every tribe that shows interest and is working on implementing the act.

Federal Agencies Have Helped Tribes Address Challenges, but Some States Do Not Notify Tribes about Registered Offenders Who Plan to Live, Work, or Attend School on Tribal Land upon Release from State Prison

About 76 percent of tribes that retained their authority to implement SORNA reported experiencing at least one major or minor challenge to implementing the act. These tribes most frequently reported inability to submit convicted sex offender information to NCIC and NSOR as a major challenge. DOJ and BIA, as well as state and local law enforcement agencies, have taken actions to help address these challenges. However, additional steps to ensure that states notify tribes about registered sex offenders who plan to live, work, or attend school on tribal lands upon release from state prison, and to identify what, if any, assistance tribes may need in order to implement SORNA, would help further address tribes’ challenges.

Tribes Most Frequently Reported Lack of Access to NCIC, Lack of Notification when Convicted Sex Offenders Are Released, and Insufficient Staff

Tribal officials from 98 of the 129 tribes (76 percent) that retained their authority to implement SORNA and responded to our survey questions on challenges to implementing SORNA reported that their tribes experienced As shown at least one major or minor challenge to implementing the act.in figure 4, the major challenges tribes most frequently reported included inability to submit convicted sex offender information to NCIC or NSOR; lack of notification from state prisons about sex offenders who indicate that they plan to live, work, or attend school on tribal lands; insufficient staff; and inability to cover costs to implement SORNA or maintain the tribe’s registry.

DOJ and BIA Have Formed a Working Group to Better Coordinate Federal Efforts to Address Tribes’ Difficulties Submitting Convicted Sex Offender Information to NCIC or NSOR

Under SORNA, as well as DOJ’s National Guidelines for SORNA Implementation, jurisdictions are to provide convicted sex offender information for inclusion in NSOR, which is part of NCIC. However, 39 of the 129 (about 30 percent) tribes that responded to our survey reported difficulties meeting this requirement as a major or minor challenge to SORNA implementation.

These tribes, as well as the federal, state, and tribal sex offender registry and law enforcement officials we interviewed, cited reasons why some tribes do not submit convicted sex offender information to NCIC or are able to do so only with the assistance of other state and local law enforcement agencies.

Cost of NCIC access. Ten tribes that responded to our survey reported that they cannot cover the associated costs for NCIC access. According to federal, state, and tribal officials, these costs can include purchasing servers or NCIC terminals, the cost of the required high- speed Internet connection, or the fees required to obtain NCIC access.

Requirements for submitting information to NCIC. Thirteen tribes reported that they do not meet certain requirements for submitting information to NCIC. CJIS has established requirements that all law enforcement agencies seeking to submit information to federal criminal justice databases must meet in order to ensure the quality and the security of criminal justice data entered into these databases. For example, some tribes do not meet CJIS requirements because they do not have a criminal justice agency (police force, court, etc.) or an officer available 24 hours, 7 days a week to respond to any inquiries about persons or property included in NCIC.

State statutes or policies. Twelve tribes reported that state statutes or policies prevent them from submitting to NCIC through the states’ criminal justice information systems. According to FBI officials, CJIS Systems Agencies determine which entities within their states, including tribes, can access these federal criminal databases through state systems. However, some states, such as New York, have statutes or policies prohibiting CSAs from granting tribal law enforcement entities access to their state switches and, therefore, to NCIC through such switches.

According to DOJ officials, the public safety benefit of including convicted sex offender information in NSOR is that if a law enforcement officer comes into contact with an individual, such as through a traffic stop or an arrest, the officer can query NCIC and learn that the individual is a convicted sex offender and potentially determine if the offender is in compliance with registration requirements. The officer can also enforce any requirements that the officer’s jurisdiction may have with regard to convicted sex offenders. For example, according to tribal officials, some tribal jurisdictions banish convicted sex offenders from their lands or prohibit offenders from living or working within proximity to schools or day care centers.

Federal and state, as well as local, law enforcement agencies have undertaken efforts to help address such barriers, although the efforts have some limitations, as discussed below.

Memorandums of agreement (MOA). Federal, state, and local law enforcement agencies have entered into memorandums of agreement with tribes, whereby these law enforcement agencies generally agree to enter convicted sex offender information into NSOR on behalf of the tribes. For example, 28 of 129 (about 22 percent) tribes that responded to our survey reported that county or local law enforcement enters information in NSOR for their tribe, while another 7 tribes indicated that BIA enters this information for them. However, the DOJ and BIA officials and representatives from the National Criminal Justice Association and the National Congress of American Indians that we interviewed noted that not all tribes have good relationships with state or local law enforcement agencies, and that these agencies may not be willing to assist the tribes. In addition, according to DOJ, tribal, and local law enforcement officials, when another law enforcement agency enters information into NSOR on behalf of a tribe, the information is often not associated with the tribe because state or local law enforcement agencies frequently use their own Originating Agency Identifier number (ORI), as opposed to the tribe’s number, in NSOR. As a result, the convicted sex offender appears in NSOR as having registered with the entity that submitted the information as opposed to the tribe.

Representatives we interviewed from the SMART Office and CJIS, as well as local and tribal law enforcement, stated that these data entry practices can also lead to imprecise data in NSOR. For example, at our request, CJIS identified 22 tribes as having a total of 247 registered sex offenders in NSOR. However, 120 of 129 tribes that responded to our survey reported that they had a total of 2,167 registered sex offenders on their lands. According to CJIS officials, this discrepancy should not pose a public safety threat because an officer querying an individual in NCIC will know immediately if the individual is a convicted sex offender. Further, CJIS and USMS officials said that the FBI and USMS generally do not use NSOR as their primary source for informing decisions, such as funding or resource allocation for sex offender related operations.

Collaboration to remove state barriers to tribes’ NCIC access. The SMART Office has collaborated with state and tribal officials in three states to successfully address state policies preventing tribes in these states from submitting information to NSOR through the state criminal justice database. SMART Office representatives told us that until recently, tribes in Arizona and Washington were unable to submit convicted sex offender information to NSOR because of various state statutes or policies. SMART Office representatives reportedly worked closely with state and tribal officials to provide alternative conduits that will allow tribes to submit convicted sex offender information directly to NSOR. SMART Office representatives also reported that they have tried to persuade officials in at least 2 other states to implement similar solutions, but without success.

Justice Telecommunications System (JUST). DOJ, with the assistance of the Office of Tribal Justice and the Justice Management Division (JMD), established JUST in 2010 as a pilot project to provide tribes that meet FBI requirements with NCIC access. OTJ representatives said that DOJ provided $1 million for the pilot under the Community Oriented Policing Services (COPS) Office and has used approximately $250,000 to provide 21 tribes with NCIC access—6 of which are eligible to implement SORNA. According to OTJ, all tribes that have requested NCIC access through JUST thus far have received access. OTJ representatives said that the JUST funding covers tribes’ costs for access fees as well as other licensing and transaction fees; however, tribes will have to pay these fees on their own once the remaining $750,000 for JUST runs out. According to OTJ and JMD representatives, for JUST to become a viable and long- term solution for tribes’ lack of NCIC access, DOJ will need to identify and secure a more sustainable source of funding. Identifying sustainable sources of funding, according to these officials, is one of the goals of the Tribal Public Safety Working Group, discussed below.

The Office on Violence Against Women, a component of DOJ, is responsible for providing federal leadership in developing the national capacity to reduce violence against women and administer justice for and strengthen services to victims of domestic violence, dating violence, sexual assault, and stalking. The Office of Justice Programs, within DOJ, provides leadership to federal, state, local, and tribal, justice systems, by disseminating state-of-the art knowledge and practices on crime-fighting strategies across America, and providing grants for the implementation of these strategies.

May 12, 2014, and has established both short-term and long-term goals. In the short term, OTJ representatives said that by using information from outreach efforts and other existing sources, the working group plans to determine the extent to which each tribe has or wants access to all federal criminal databases, and the unique solution based on the circumstances of each tribe. OTJ representatives reported that the working group’s long-term goals include identifying sustainable funding sources; identifying best practices for addressing specific barriers; evaluating potential systematic solutions, such as establishing a federal CSA for tribes; and reviewing federal rules and regulations to identify those that should be revised to remove any regulatory barriers to tribes’ access to federal criminal databases.

The Tribal Public Safety Working Group’s plans and initial activities are in line with addressing the types of barriers to NCIC access that tribes identified. However, given that the Tribal Public Safety Working Group is in its early planning phase, it is too early to evaluate how its efforts will help provide tribes with access to NCIC.

Additional SMART Oversight of, and Outreach to, States Could Help Ensure That Relevant Tribal Jurisdictions Are Notified about Registered Sex Offenders Who Have Indicated That They Will Be Moving to Tribal Land upon Release from State Prisons

Of the 129 tribes that responded to our survey, 41 (approximately 32 percent) reported that their state prisons had not notified them when the prisons released a sex offender to the tribes’ lands. In addition, about half of these 41 tribes reported that lack of notification when offenders are released from state prisons was a major challenge to SORNA implementation, with some consequences. Tribal officials that we interviewed and that responded to our survey reported instances of offenders on tribal lands that may not be monitored or registered as required because they had not been notified of the offenders’ release from prison.he learned of a convicted sex offender with an extensive criminal record who was released from prison and lived on the tribe’s land from anonymous letters the official received. He said that because his tribe received no notification from state prison officials about this sex offender, the sex offender had lived on the tribe’s territory unmonitored for over a year.

For example, one tribal law enforcement official told us that A consequence of not being notified about registered sex offenders who plan to live, work, or attend school on tribal land upon release from state prisons that tribal officials highlighted was that they may not be able to enforce their own laws governing the extent to which convicted sex offenders can live, work, or attend school in their communities. For example, a state tribal liaison officer told us that 9 of the 29 tribes in his state have laws that ban all sex offenders or restrict the types of sex offenders allowed to live on the tribes’ lands. Similarly, officials from 2 tribes we interviewed said that their tribes either did not allow convicted sex offenders to live on the tribes’ lands or had more stringent laws than states regarding the proximity of a convicted sex offender’s residence to a school. Absent notification from states about registered sex offenders who plan to live, work, or attend school on tribal lands upon release from state prison, tribal authorities would not be aware of the presence of convicted sex offenders on their lands and therefore would be unable to enforce tribal law.

Under SORNA, initial registration of a convicted sex offender is to take place prior to the offender being released from prison, and the registration jurisdiction must immediately forward the offender’s registration information to any other jurisdiction in which the sex offender is required to register. However, according to the SMART Office, in many states, the state prison is not a SORNA registering entity and therefore does not register the sex offender or notify other relevant registration jurisdictions prior to the offender’s release. In these instances, the sex offender’s initial registration may not take place until after the offender is released from prison and through a state registering entity, such as a county sheriff’s office. In instances when a sex offender informs a state registering entity—whether that be the state prison, a county sheriff’s office, or another agency—that he or she plans to live, work, or attend school on tribal land, under SORNA, notification must be sent to tribes that retained their SORNA implementation authority.

Reasons Why Some States Do Not Notify Tribes

State prison and registry officials who responded to our requests for information provided two reasons why their states do not notify tribes when a registered offender indicates that he or she will be living, working, or attending school on the tribe’s land upon release from prison. In some cases, resolving these barriers may be difficult, but in other cases, there are promising practices that could help states to address barriers to notifying tribes. First, 10 of the 20 states that responded to our inquiry said that they do not have laws or policies that require that tribes be notified.them, 22 are located in these states. In the absence of state laws or policies regarding notification to tribes, states may leave it up to the discretion of local law enforcement agencies, which may conduct the initial registration of the sex offender, to decide whether they will notify tribes. However, as discussed earlier, several federal, state, and tribal officials we interviewed acknowledged that not all tribes have cordial relationships with their local law enforcement organizations. As a result, this method of notification may not be effective for all tribes.

Of the 41 tribes that reported that state prisons had not notified Second, it can be difficult for state prisons, in particular, to determine if the address that the offender has identified as that person’s residence is located on tribal lands. According to state, local, and tribal officials we interviewed, unlike other jurisdictions, such as cities or counties, tribal lands are not always clearly identifiable by a ZIP code or even a city name. However, the Federal Bureau of Prisons manages this challenge by asking the offender whether the address is located on tribal lands as part of the prison release procedures. In regard to federal notification requirements, officials from the Bureau of Prisons said that they have removed law-enforcement-sensitive information from their notifications. As of May 2014, they can now send prisoner release notifications to both tribal law enforcement and tribal sex offender registry officials to ensure that all tribes are notified when a sex offender is released from federal prison, as required by federal law.

Ensuring Substantially Implemented States Are Notifying Tribes

To assist jurisdictions to develop, organize, and submit their substantial implementation package materials, the SMART Office developed the SORNA Substantial Implementation Checklist tool. To complete the checklist, states must identify the specific statute or regulation that is to fulfill each SORNA requirement, including forwarding sex offender information to other relevant SORNA jurisdictions. The SMART Office also requires that states that have a tribe or tribes eligible to implement SORNA located within their boundaries provide MOAs or other information-sharing agreements to facilitate notification of sex offender release. For states that have substantially implemented SORNA, the SMART Office uses this information as the basis for an additional section titled “Tribal Considerations” in these states’ Substantial Implementation Review reports.

Office with plans for how they would notify these tribes until the tribes implemented SORNA themselves.

Also, according to SMART Office representatives, under the flexibility built into SORNA, the SMART Office may determine that a state has substantially implemented the law if lack of notification to tribes was the only area of noncompliance. This is because even though the tribe may not be aware of a convicted sex offender living on its land, it is likely that state or local law enforcement officials have registered and are aware of the sex offender, and can take steps to monitor the offender. However, the SMART Office still expects substantially implemented states to notify tribes following registration of a sex offender who plans to live, work, or attend school on tribal land.

The SMART Office has opportunities to continue to work with substantially implemented states to ensure that they meet this notification requirement. According to SMART Office representatives, the office conducts annual compliance reviews to evaluate the extent to which substantially implemented jurisdictions remain in continued compliance. The office issued its substantial implementation assurance guidance that details the types of information that a SMART Office evaluator is to request when conducting these annual reviews, such as whether the state has signed any new MOAs with tribes. However, the guidance does not require that the evaluator request information on whether and how the state, or a designated agency within the state, notifies tribes following registration of a convicted sex offender who will be, or has recently been, released from state prison and indicates that he or she plans to live, work, or attend school on tribal land. By amending its substantial implementation assurance guidance, the SMART Office could better ensure that substantially implemented states are in compliance with SORNA requirements to notify tribes that retained their authority, thereby enabling these tribes to enforce their own laws pertaining to convicted sex offenders.

Encouraging Nonimplementing States to Notify Tribes

The SMART Office is also in a position to encourage states that have not yet substantially implemented SORNA to make efforts to implement certain provisions of the law, such as the requirement to notify tribes. This is particularly important considering that we found that 7 of 12 nonimplementing states that have tribes that retained their SORNA authority and that responded to our inquiry do not notify tribes. Furthermore, 22 of the 41 tribes that reported state prisons had not notified them are located within these 7 states. The SMART Office has provided guidance and conducted outreach to encourage tribes, once they take responsibility for registering convicted sex offenders, to coordinate with their respective states to ensure that the tribes are notified about sex offenders who plan to live, work, or attend school on their lands upon release from state prison. According to SMART Office representatives, the agency has issued a policies and procedures manual that calls for tribes to, among other things, establish procedures that ensure that the tribe receives notification about a sex offender who is released from a state, county, or local jail, and has indicated that he or she will be living, working, or attending school on tribal land. SMART Office representatives also reported that they have widely encouraged tribes, as a best practice, to contact relevant state, county, and local officials to ensure that these officials are aware that the tribe is a registering jurisdiction and the officials have the tribe’s current information on who should receive notifications. SMART Office representatives reported conducting some outreach to states as part of the substantial review process, but acknowledged that more could be done to encourage states to provide notification to tribes. SMART Office representatives said that, prior to our review, they were not aware of tribes’ concerns that states were not notifying tribes about sex offenders who were released from prison and planned to live, work, or attend school on tribal lands. Therefore, these representatives did not think it was necessary at the time to provide any additional guidance to the states.

Nevertheless, given our survey results, it may be beneficial for the SMART Office to expand upon its existing outreach efforts to encourage states to develop mechanisms to notify tribes that retained their SORNA implementation authority. SMART Office representatives told us that they often reach out to law enforcement and sex offender registry officials located in both implementing and nonimplementing states and that officials from these states attend various SORNA training events and conferences that the SMART Office sponsors. The representatives agreed that they could use these existing outreach efforts to educate states on the importance of, and best practices for, notifying tribes about sex offenders who have indicated that they plan to live, work, or attend school on tribal lands upon release from state prison. In doing so, the SMART Office will help ensure that implementing, as well as nonimplementing, states have the information they need to effectively notify tribes, and that tribes have the information they need to identify and monitor convicted sex offenders who live, work, or attend school on their lands, and to enforce their laws governing the extent to which convicted sex offenders can live, work, or attend school in their communities.

Additional BIA Outreach to Tribes to Identify the Help They Need and That BIA Can Provide Could Assist Tribes with SORNA Implementation

Insufficient staff and difficulty covering the costs of SORNA implementation were each cited by 21 of 129 (16 percent) tribes as major challenges. Several tribal and federal officials, as well as subject matter experts that we interviewed, also reported that insufficient staff and the costs of SORNA implementation were major challenges that tribes faced when implementing SORNA. For example, BIA and SMART Office representatives and representatives from the National Congress of American Indians told us that because the majority of tribes did not have sex offender registries prior to SORNA, many tribes have not had the necessary resources for conducting sex offender registration, such as office space, staff, and equipment, and therefore would have had to incur significant costs to acquire these resources. In addition, the sex offender registry official from a tribe that has substantially implemented SORNA reported that his tribe spent approximately $173,000 over a period of 2 years to fund his salary, purchase the information technology infrastructure required to set up the tribe’s sex offender registry, and acquire a fingerprint scanner. In addition, according to BIA officials and subject matter experts staff turnover can result in large lapses in some tribes’ SORNA implementation programs, when staff often leave their positions without providing documentation of past efforts toward implementing the law, requiring incoming staff to start the tribe’s implementation efforts anew. For example, according to representatives from the National Criminal Justice Association, 1 tribe has experienced up to six turnovers for its SORNA coordinator position.

DOJ and BIA reported the following as ways in which their agencies have provided tribes with financial assistance, equipment, and staff to help address challenges related to limited resources:

The SMART Office provided $23.69 million in Adam Walsh Act Implementation Grant Program (AWA) funds to 125 tribes from fiscal years 2008 to 2013 and $1.92 million in Edward Byrne Justice Memorial Discretionary Grants Program funds to 17 tribes in fiscal year 2008 to assist with SORNA implementation.

The SMART Office also has provided tribes with training and technical assistance related to SORNA implementation as well as numerous tools, including a customizable web-based tool—the Tribe and Territory Sex Offender Registry System (TTSORS)—for tribes to use to set up their sex offender registries and public websites.

USMS has provided manpower and equipment to assist tribes with conducting operations to ensure convicted sex offenders are complying with their sex offender registration requirements.

BIA OJS assisted 19 tribes with SORNA implementation tasks, such as providing input on the tribes’ draft sex offender codes, assisting tribes with installing or configuring the tribes’ registry systems (i.e., TTSORS), and assisting tribes with identifying and implementing alternative means of submitting information to federal criminal databases.

In our survey, 7 tribes reported receiving assistance from BIA, 33 from USMS, and 69 from the SMART Office and almost all of the tribes that reported they received assistance from these three agencies characterized the agencies’ assistance as very useful or moderately useful. In addition, tribal leaders we interviewed reported that Byrne and AWA grants have assisted tribes with offsetting the cost of SORNA implementation. Tribal officials responsible for implementing SORNA for 5 tribes reported that their tribes received AWA grant funds and had used the funds to cover various implementation expenses including hiring additional staff, purchasing necessary equipment, and covering fees to query or submit information on convicted sex offenders to federal criminal databases (20 of the 26 tribes that reported challenges with covering SORNA implementation costs and insufficient staff had received AWA grant funds).

A number of tribes that responded to our survey reported that they would like additional assistance from each of the three federal agencies. Specifically, 40 tribes reported that they would like additional assistance from the SMART Office, 30 tribes reported that they would like additional assistance from BIA, and 22 tribes reported that they would like additional assistance from USMS. However, most of the tribes that reported wanting additional assistance from SMART and USMS had already received assistance from these two agencies, and found the assistance to be useful. On the other hand, most of the tribes that reported wanting additional assistance from BIA reported that they had not received any prior assistance from BIA and raised concerns about this. Specifically, 26 tribes that responded to our survey indicated that either BIA did not offer assistance to them at all (14 tribes), they were unsure of the assistance BIA could offer (6 tribes), or that BIA did not provide the assistance they requested (6 tribes). Tribes did not report that the SMART Office or USMS had not offered them assistance or had refused their request for assistance.

Unlike the SMART Office and USMS, BIA does not have an explicit role for SORNA implementation. However, BIA is statutorily responsible for enforcing federal law and, with the consent of the tribe, tribal law in Indian country. Further, the agency is responsible for developing and providing training and technical assistance to tribal law enforcement, and for consulting with tribal leaders to develop regulatory policies and other actions that affect public safety in Indian country— responsibilities that are related to tribes’ implementation of SORNA. Moreover, BIA serves as the law enforcement agency for the 40 direct service tribes, 33 of which have retained their authority to implement SORNA.

According to BIA OJS officials, BIA OJS districts have reached out to select tribes that retained their SORNA implementation authority.

However, these officials acknowledged that BIA OJS has not made a concerted effort to offer assistance to all tribes that retained their authority because, according to a senior BIA OJS official, BIA’s initial outreach was limited only to tribes that were on a list the agency had received from the SMART Office of tribes that had elected to implement SORNA at the time, and therefore did not include all tribes that subsequently retained their authority to implement. As of July 2013, BIA reported that it had contacted each of the 33 direct service tribes that retained their SORNA implementation authority to determine the tribes’ implementation status and what, if any, assistance the tribes would like to have from BIA. BIA OJS reported that the agency provided some form of assistance to 19 of the 33 tribes that the agency contacted. Specifically, BIA OJS reported that it had provided office space to 2 tribes, purchased a fingerprint scanner for another tribe, and assigned officers to 5 tribes to implement or perform some or all aspects of the tribes’ sex offender registry and notification systems, and provided technical assistance to the remaining 14 tribes. BIA OJS’s officials stated that some tribes refused OJS’s offer and others did not respond at all to the offer.

Subsequently, BIA OJS officials reported that the agency conducted another round of outreach to tribes in preparation for a meeting with GAO, in August 2014. However, BIA reached out to only the 33 direct service tribes that had retained their authority but had not yet implemented SORNA and did not contact the remaining 131 tribes that have retained their authority to implement SORNA—71 of which have not yet implemented the law. Furthermore, BIA OJS officials reported that they asked each of the 33 tribes where the tribes were in the implementation process, what challenges they are currently facing, and what if any, assistance BIA had previously offered the tribes, but did not ask what additional help these tribes would like to receive from BIA OJS.

SMART Office representatives said that in addition to tribes’ lack of access to NCIC, lack of BIA assistance is the second most frequently reported SORNA implementation challenge that tribes have communicated to the SMART Office. A BIA OJS senior official stated that the agency could better support tribes that choose to retain their SORNA implementation authority, and attributed the agency’s challenges in providing this assistance to several factors. First, according to the senior BIA official, tribes experience high staff turnover and incoming staff are often unaware of assistance that BIA may have offered in the past. Therefore, the BIA OJS senior official stated, it is important for BIA to reach out to tribes more than once. Second, the BIA senior official also said that not all BIA field officers have received training on SORNA or how to assist tribes with SORNA implementation. BIA officials said that the agency is working on providing training to its officers so that they have the base knowledge on assisting tribes with SORNA implementation. This training, BIA officials added, will be open to all tribal police chiefs and mandatory for BIA police chiefs.

Third, because BIA conducted outreach to 33 and not all 164 tribes that retained their authority to implement SORNA, BIA may not be aware of the needs of the tribes it has not contacted. BIA officials acknowledged that they could expand their outreach to include all tribes that retained their authority to implement SORNA, including tribes for which the agency does not provide direct services. Taking steps to ascertain what, if any, resource or other needs all tribes that have not implemented SORNA may have could better support the tribes’ efforts to substantially implement the act, and thereby better ensure monitoring of convicted sex offenders on tribal lands.

States Are Including Convicted Sex Offenders from Ineligible and Delegated Tribes, but States Are Not Consistently Notifying Tribes about Offenders Who Indicate That They Plan to Live, Work, or Attend School on Tribal Lands

Those states with tribes that are not implementing SORNA—that is, tribes that are not eligible to implement SORNA and tribes whose implementation authority was delegated to a state—reported that the states are including convicted sex offenders on these tribes’ lands in the states’ own sex offender registration and notification systems. However, states are not consistently notifying these tribes about registered sex offenders who plan to live, work, or attend school on tribal lands upon release from state prison—similar to the problem we discussed earlier that tribes that retained their implementation authority experienced. As a result, some ineligible and delegated tribes are unaware of convicted sex offenders on their lands, in which case they are not able to take actions they deem appropriate to ensure public safety, such as banning certain sex offenders from living on their land.

States Are Including Convicted Sex Offenders from Ineligible and Delegated Tribes in State Registries and Generally Reported No Challenges in Doing So

Under SORNA, states are responsible for registering convicted sex offenders who live, work, or attend school on the territory of tribes that have not retained SORNA implementation authority, which are ineligible tribes subject to state criminal jurisdiction under 18 U.S.C. § 1162, as well as tribes whose SORNA functions have been delegated to a state. We found that states have incorporated ineligible and delegated tribes into state sex offender registries, as required.

With respect to ineligible tribes, we interviewed sex offender registry and SORNA officials in the 6 states where these tribes are located, and they told us that they include convicted sex offenders who live, work, or attend school on tribal lands in the state sex offender registry and had mostly experienced no challenges in doing so. Tribal officials from 7 of 8 ineligible tribes we interviewed confirmed that the states had incorporated convicted sex offenders who live on their lands into the state sex offender registry. An official from the remaining ineligible tribe was not aware of any efforts by the state to include sex offenders who live, work, or attend school on the tribe’s land into the state’s sex offender registration system.

Officials from 5 of the 6 states where we conducted interviews also reported that their states had experienced no challenges with incorporating convicted sex offenders from ineligible tribes into the state sex offender registry. These state officials reported that for registration purposes, convicted sex offenders on tribal land are required to report to the tribe, a nearby county or city to register. Officials from 3 of the 5 states added that they treat tribes like any other local jurisdiction. Sex offender registry officials we interviewed from the sixth state said that many tribes in their state are located in remote areas, and this poses a challenge for convicted sex offenders located on tribal lands to travel to the nearest county to register. The remote location of these tribes also makes it difficult for county law enforcement to monitor convicted sex offenders to ensure that they are complying with the terms of their registration. According to tribal and sex offender registry officials from this state, the state has tried to address the location challenge by giving offenders who live in remote areas the choice to register in person, by mail or fax and having the tribal community complete forms to verify the addresses of tribal members who are registered sex offenders.

With respect to delegated tribes, SORNA and sex offender registry officials from 10 of the 12 states with these tribes that provided written responses to our questions reported that the states incorporate or expect to incorporate convicted sex offenders from delegated tribes into their However, officials from 5 of the state sex offender registry, as required.12 states reported difficulties doing so. These included contacting but not receiving a response from tribes and resolving differing requirements between state laws and SORNA regarding registration of sex offenders and community notification. Nevertheless, we found that states were able to overcome these challenges and register and monitor offenders, as required.

States Are Not Consistently Notifying Ineligible and Delegated Tribes about Registered Sex Offenders Who Plan to Live, Work, or Attend School on Tribal Land upon Release from Prison

We reported earlier in this report that some states are not notifying tribes that retained their SORNA implementation authority following registration of a sex offender who plans to live, work, or attend school on tribal land upon release from state prison. Similarly, sex offender registry officials we interviewed from 3 of the 6 states where ineligible tribes are located told us that they do not notify ineligible tribes, and officials from 7 of the 12 states with delegated tribes that responded to our inquiry reported that they also do not notify tribes. Officials from the remaining 3 states where ineligible tribes are located were unsure or did not state whether they notified ineligible tribes while officials from the remaining 5 states with delegated tribes said that they provide tribes with this information.

The specific SORNA provision that requires such notification to ineligible and delegated tribes is section 121(b)(2). It states that immediately after a convicted sex offender registers or updates a registration, an appropriate official in the registration jurisdiction—in this instance, the state—shall provide the information in the registry (other than information exempted from disclosure by the Attorney General) about that offender to all appropriate law enforcement agencies, as well as schools, and public housing agencies, in each area where the offender resides, works, or attends school. Therefore, states should notify all ineligible and delegated tribes that have a law enforcement agency, a school, or a public housing agency when a convicted sex offender registers with the state and plans to live, work, or attend school on tribal land. Of the 50 delegated tribes, 22 have a police department, at least 10 have schools, Similarly, of the 353 ineligible tribes, 17 and 38 have public housing.have their own police department, at least 165 have schools, and 323 have public housing. Yet, states are not consistently notifying these tribes about sex offenders who were released from state prison and registered or updated a registration with the state indicating that they will be living, working, or attending school on tribal lands, as SORNA requires. Without such notification, tribes may be unaware, as noted earlier in this report, of the presence of convicted sex offenders on their lands and may be unable to enforce tribal law and ordinances related to sex offenders.

States are not providing notification to ineligible and delegated tribes that have police departments for a couple of reasons. First, 1 state has determined that tribal law enforcement agencies do not meet the state’s definition of a law enforcement agency, in which case the state would not provide this notice. Second, in the absence of state laws or policies to notify tribes, some states let the counties decide on their own whether or not to notify tribal law enforcement, but as we reported earlier in this report, this could be a concern if the tribal and county law enforcement officials do not have a good working relationship.

With respect to the requirement that states notify schools and public housing agencies, the National Guidelines indicate that it is potentially challenging for states to proactively notify schools and public housing agencies because of problems such as identifying comprehensive lists of recipients and maintaining up-to-date contact information for each school and public housing agency. For example, Oklahoma has approximately 1,800 public schools. SMART officials stated that California and Alaska, which have the vast majority of ineligible tribes, might find it particularly challenging. Therefore, the National Guidelines allow states to satisfy the requirement to immediately notify schools and public housing agencies, as well as other community and social service organizations, by posting information on the state’s sex offender public website within 3 days of the offender’s registration or update, provided that the website includes an automatic notification function whereby requesters may receive e-mails when new information pertaining to a ZIP code or geographic radius area is available. However, this poses challenges. First, tribes can only search by name, ZIP code, county, city or geographic radius, and as we discussed previously, it would be difficult for the tribe to know whether a convicted sex offender who lives within the same ZIP code as the tribe actually lives on tribal land. Second, some states have opted not to include all convicted sex offenders on their public websites, as SORNA allows. For example, jurisdictions can exclude information about tier I offenders whose victims were not minors.

Also, with regard to tribes, an alternative to directly notifying the school or public housing agency located on tribal land could be that the state notify the tribal council or another entity that the tribe deems appropriate. Given the relatively small number of tribes in most states, the number of tribes is likely to be much lower than the number of public housing agencies and schools, making it easier to obtain contact information on tribes and notify them of released offenders. For example, Nevada has 673 public schools, but only 11 delegated tribes, and is the state with the greatest number of delegated tribes. States with ineligible tribes, however, may have a larger number of tribes and find it more difficult to contact each tribe. For example, Alaska and California in particular could find it difficult considering that 226 and 108 ineligible tribes have territory in these states, respectively.

According to the SMART Office, it has taken steps to inform both implementing and nonimplementing states about tribes whose authority has been delegated to the state, and has provided states with points of contact for these tribes. However, the SMART Office has not explicitly advised states, as part of these efforts, to notify delegated tribes about registered sex offenders who intend to live, work, or attend school on tribal land upon release from state prison. Given that the SMART Office conducts annual compliance reviews of implementing states and conducts ongoing outreach to implementing as well as nonimplementing states on a range of SORNA issues, the office is well positioned to provide explicit guidance to states regarding the necessary steps to implement SORNA’s notification requirement for ineligible and delegated tribes. Also, through its outreach and compliance reviews, the SMART Office has the opportunity to consult with states on steps they can take to overcome some of the barriers that make it difficult for states to provide these notifications. Such efforts on behalf of the SMART Office would enable ineligible and delegated tribes to take actions they deem necessary to ensure public safety when a convicted sex offender is released from state prison and has registered or updated a registration indicating that he or she will be living, working, or attending school on their lands.

Conclusions

SORNA sought to enhance public safety, in part, by requiring eligible tribes to develop their own sex offender registration and notification systems to help address concerns about convicted sex offenders avoiding registration by moving to tribal lands. Considering that many tribes did not have their own sex offender registration systems prior to SORNA, tribes faced a number of challenges in implementing the act, such as lack of access to federal criminal justice databases and difficulty covering implementation costs. Several agencies provided assistance to help tribes address these challenges, but according to tribes that responded to our survey, additional assistance and communication, particularly from BIA, would be beneficial. Also, as part of the SMART Office’s annual compliance review of implementing states, and ongoing outreach with implementing and nonimplementing states, determining whether states are notifying tribes that retained their authority about convicted sex offenders who initially register or update a registration indicating that they will be living, working, or attending school on tribal land upon release from state prison could help ensure that tribes are aware of and can monitor convicted sex offenders in their communities. Further, taking additional actions to ensure that states notify all tribes, including ineligible and delegated tribes, would better position tribes to enforce their own laws and policies regarding sex offenders who live, work, or attend school on their land. Further, these actions would enhance DOJ’s initiative to increase public safety in tribal communities by providing the federal support these communities need to overcome the unique law enforcement challenges they face, which, as noted by the Attorney General in his 2009 launching of the initiative, had resulted in unacceptable rates of violence against women and children in tribal communities.

Recommendations for Executive Action

To help ensure that tribes that retained their SORNA implementation authority, as well as ineligible and delegated tribes, are notified when convicted sex offenders who intend to live, work, or attend school on tribal land initially register or update a registration, we recommend that the Assistant Attorney General for the Office of Justice Programs direct the SMART Office to take the following two actions:

Amend its substantial implementation assurance guidance to require its evaluators to determine whether substantially implemented states are notifying tribes that retained their authority to implement SORNA, as well as ineligible and delegated tribes, as required, and use this information in the office’s ongoing outreach to the states.

Encourage implementing as well as nonimplementing states, as part of the office’s ongoing outreach to these states, to develop policies and procedures to notify tribes that retained their authority to implement SORNA, as well as ineligible and delegated tribes, about convicted sex offenders who registered or updated a registration with the state—either prior or subsequent to their release from state prison—and indicated that they will be living, working, or attending school on tribal lands. As part of this outreach and to help states overcome any barriers to notifying tribes, educate state officials on best practices for overcoming barriers to notifying tribes that the SMART Office has identified.

To help determine what additional assistance tribes may need to help them toward SORNA implementation, we recommend that the Director of the Bureau of Indian Affairs direct each Office of Justice Services district office to contact the tribes within its district that have retained their implementation authority to determine if the tribes would like BIA to assist them with SORNA implementation efforts. For tribes that would like assistance from BIA, where possible, BIA should provide this assistance or refer the tribe to other resources.

Agency Comments and Our Evaluation

We provided a draft of this report to Interior and DOJ for review and comment. We received written comments from DOI via e-mail and from DOJ in a formal letter, which is reproduced in full in appendix IV. DOI and DOJ agreed with our recommendations in their comments. We also received technical comments from DOJ, which are incorporated throughout our report as appropriate.

In comments that DOI provided via e-mail on October 21, 2014, the department agreed with our recommendation that BIA direct each OJS district office to contact the tribes within its district that have retained their implementation authority, to determine if the tribes would like BIA to assist them with SORNA implementation efforts. DOI noted that the department plans to send correspondence to each of these tribes to determine if the tribes need BIA assistance with SORNA implementation and will provide the necessary assistance to these tribes, considering the department’s authority, access, and resources. Further, DOI stated that it will reach out to states and other entities outside of OJS’s control that may be posing challenges to tribes’ ability to comply with SORNA. We believe that these are beneficial steps that, once fully implemented, would address our recommendation and help address resource or other needs that have made it difficult for some tribes to substantially implement the act.

In addition to taking actions to address our recommendation, DOI also identified additional efforts that BIA OJS has under way to help ensure tribes are able to implement SORNA. For example, BIA OJS has renewed its relationship with the SMART Office so as to receive internal policy and procedure updates, as well as training opportunities for OJS employees on SORNA.

DOJ agreed with our recommendation that the SMART Office amend its substantial implementation assurance guidance to require its evaluators to determine whether substantially implemented states are notifying tribes that retained their authority to implement SORNA, as well as ineligible and delegated tribes. The department also noted in its response that the SMART Office will continue to propose individualized solutions for jurisdictions with legislation or public policy practices that inhibit or prohibit working with tribal law enforcement.

DOJ also agreed with our recommendation to encourage implementing as well as nonimplementing states to develop policies and procedures to notify all tribes about sex offenders who would be living, working, or attending school on tribal lands, either prior or subsequent to their release from state prison. In its letter, DOJ noted that the SMART Office will request in future substantial implementation reviews that states provide information on how state incarceration facilities notify tribes when sex offenders are released and have indicated that they will be living, working, or attending school on tribal land. Accordingly, the SMART office will use the information solicited from these reviews in its ongoing outreach to implementing as well as nonimplementing states to help improve their communication with tribes. DOJ stated that to the extent possible, the department will encourage the sharing of sex offender information through the SORNA Exchange Portal—the tool that facilitates the exchange of information about sex offenders moving to other SORNA jurisdictions—as well as through extensive outreach and education to states on how they can use public notification to share information with ineligible and delegated tribes that do not have access to this portal. We believe that, once implemented, these actions would address our recommendations and enhance tribes’ ability to receive the notification they need in order to enforce their laws pertaining to sex offenders.

Although DOJ agreed with our recommendations, the department expressed concerns that our report is not responsive to the primary challenge that tribes that responded to our survey identified—that is, an inability to submit sex offender information to federal criminal databases. However, we noted in this report that at the time of our review, DOJ and BIA had established a Tribal Public Safety Working Group to identify which tribes lack access to federal databases and to work on the appropriate solution based on the unique circumstances of each tribe. We believe that it is too soon to evaluate the effectiveness of the working group’s current efforts, given that the group is in its early planning phase.

We are sending copies of this report to the appropriate congressional committees, the Attorney General, the Secretary of Interior, and other interested parties. This report is also available at no charge on GAO’s website at http://www.gao.gov.

If you or your staff have any questions, please contact me at (202) 512- 8777 or larencee@gao.gov. Contact points for our Offices of Congressional Relations and Public Affairs may be found on the last page of this report. Staff acknowledgments are provided in appendix IV.

Appendix I: Objectives, Scope, and Methodology

Our objectives for this report were to address the following questions:

To what extent have eligible tribes retained their authority to implement the Sex Offender Registration and Notification Act (SORNA), and for those that did, what is their implementation status?

What implementation challenges, if any, have tribes that retained their authority to implement SORNA reported, and what steps have federal agencies and others taken or could take to address these challenges?

To what extent are states incorporating ineligible and delegated tribes into their state sex offender registration and notification systems?

To address our first two objectives, we surveyed tribal officials whom the Office of Sex Offender Sentencing, Monitoring, Apprehension, Registering, and Tracking (SMART Office) identified as being responsible for implementing the act in the 164 tribes that retained their authority to implement SORNA.representatives of tribal police departments and court systems. We used the survey to identify the implementation status of tribes that retained their authority to implement SORNA; the challenges they face with implementation; and the steps that tribes, as well as state, local, and federal government entities, are taking or could take to address implementation challenges. Additionally, we used the survey to obtain the tribal officials’ perspectives on the SMART Office’s guidance and the criteria it used to determine whether or not a jurisdiction has substantially implemented SORNA. We collaborated closely with a GAO social science survey specialist and conducted an expert review as well as pretests with 4 tribes that retained their authority to implement SORNA; doing so helped us to develop and refine our survey questions, clarify any ambiguous portions of the survey, and identify any potentially biased questions. We launched our web-based survey on April 1, 2014, and closed out the survey on June 30, 2014. Login information for the web- These officials included tribal chiefs as well as based survey was e-mailed to all participants, and we sent three follow-up e-mail messages to all nonrespondents and contacted the remaining nonrespondents by telephone. We received responses from 80 percent (129 of 161) of all tribes surveyed. Not all survey respondents provided answers to all survey questions. Because the survey was conducted with all tribes that retained their authority to implement SORNA, there are no sampling errors. However, the practical difficulties of conducting any survey may introduce nonsampling errors. For example, differences in how a particular question is interpreted, the sources of information available to respondents, or the types of people who do not respond can introduce unwanted variability into the survey results. We included steps in both the data collection and data analysis stages to minimize such nonsampling errors. We also made multiple contact attempts with nonrespondents during the survey by e-mail and telephone. Since this was a web-based survey, respondents entered their answers directly into the electronic questionnaire, eliminating the need to key data into a database, minimizing error. We examined the survey results and performed computer analyses to identify inconsistencies and other indications of error. A second independent analyst checked the accuracy of all computer analyses.

To address our first objective, we also reviewed the SMART Office’s data on eligible tribes’ implementation status to identify (1) tribes that have retained their authority to implement SORNA, (2) tribes that have delegated their implementation authority to a state, and (3) tribes whose implementation authority was delegated to a state by the SMART Office. To assess the reliability of the SMART Office’s data on tribes’ implementation status, we (1) obtained written responses to our questions on how SMART Office representatives who use and maintain the data ensure the data’s reliability; (2) checked the data for missing information, and obvious errors; and (3) compared the data regarding tribes’ responses against our survey questions regarding their implementation status and, where applicable, interviewed SMART Office officials to determine the reason(s) for and resolve any differences. We found the data to be sufficiently reliable for the purpose of identifying tribes’ SORNA implementation status. We also used our survey to determine how long it took tribes to prepare and submit a complete implementation package for SMART Office review, the reasons why some tribes have not submitted a complete package, and when the latter anticipate submitting a complete package.

To address our second objective, we interviewed Department of Justice (DOJ) headquarters officials from the SMART Office, Office of Tribal Justice (OTJ), U.S. Marshals Service (USMS), and the Federal Bureau of Investigation (FBI), as well as Bureau of Indian Affairs (BIA) officials within the Department of the Interior, to determine the implementation challenges tribes have reported and steps the agencies, the tribes, and others have taken to address the challenges. In addition, we interviewed FBI Criminal Justice Information Services Division (CJIS) officials to determine CJIS policies and procedures for granting tribes access to federal criminal justice databases, which are required for SORNA implementation. We also interviewed state, tribal, as well as local law enforcement officials from 5 states—Florida, Michigan, Nevada, New York, and Oklahoma. We selected these 5 states because each contains territory of tribes that retained their authority to implement SORNA and because the states vary with regard to their SORNA implementation status and geographic diversity. In each of the 5 states, we interviewed CJIS System Agency (CSA) officials, the designated state SORNA contact, or state sex offender registry officials to obtain information about state laws, policies, and procedures for granting tribes access to federal criminal justice databases. We also interviewed tribal leaders from 9 eligible tribes in these 5 states—5 of these tribes retained their authority to implement SORNA. We selected the 9 tribes based on factors such as the tribes’ implementation status, whether the tribes are direct service tribes, and whether the tribes have agreements for SORNA implementation with any local law enforcement agencies, as well as the challenges that the SMART Office and others reported that these tribes face with implementation. In addition to the 5 states, we contacted officials in 20 states to determine whether these states require their state departments of corrections or registries to notify tribes that have retained their authorities to implement SORNA upon releasing a sex offender who plans to live, work or attend school on tribal lands. Officials from 15 of the 20 states responded to our request. These 15 states plus the 5 we visited included states identified by tribes that responded to our survey as those that do not notify tribes upon releasing sex offenders who plan to live, work, or attend school on tribal lands, as well as states that have substantially implemented SORNA and also have tribes that have retained their authority to implement SORNA. Finally, we interviewed officials from four local law enforcement agencies in proximity to the selected tribes and with whom the tribes had an agreement for SORNA implementation, as well as officials from the two BIA Office of Justice Services (OJS) regional districts with the most direct service tribes that are implementing SORNA to determine what, if any, assistance they have provided the tribes with SORNA implementation. Although the perspectives we obtained from our interviews with these state, BIA, and tribal officials are not generalizable, they provided insights regarding the challenges that tribes face with implementing SORNA and actions that have or could be taken to address the challenges.

We also included questions in our survey of tribes that retained their authority to implement SORNA about the types and extent of challenges the tribes experienced with SORNA implementation; steps the tribes are taking to address the challenges; and the funding and other assistance the tribes have received or could receive from the SMART Office, USMS, BIA, and state or local law enforcement agencies to assist them with implementing the act. In addition, we obtained information from our survey that enabled us to identify tribes that have the required access to the National Crime Information Center (NCIC) and the National Sex Offender Registry (NSOR), and the reasons why some tribes do not have To determine if any improvements are needed to address this access.any of the challenges tribes identified with SORNA implementation, we compared our survey results against SORNA provisions as well as the National Guidelines for Sex Offender Registration and Notification.

To address our third objective, we interviewed state SORNA and sex offender registry officials from all 6 states where ineligible tribes are located as well as 8 ineligible tribes—at least 1 each from these 6 states.

The information from these interviews enabled us to determine if these states include the ineligible tribes in their state SORNA registration and notification systems, as SORNA requires, as well as to identify the challenges, if any, the states and tribes face with having the states implement SORNA on the tribes’ behalf. We selected the tribes based on their SORNA implementation status, whether they submitted a resolution to implement SORNA in spite of their ineligibility, and the challenges the tribes reportedly faced with SORNA implementation. We also interviewed tribal leaders from 4 tribes that opted out of SORNA and delegated their registration and notification functions to the state, and solicited responses to written questions from sex offender registry officials in the 15 states to which tribes’ authority have been delegated, to determine how states are incorporating delegated tribes into their state sex offender registration and notification systems, as SORNA requires.

To supplement the information we received from our interviews as well as our survey of tribes that retained their SORNA authority, we interviewed officials from three relevant national associations: the National Congress of American Indians, the International Association of Chiefs of Police, and the National Criminal Justice Association, to obtain their perspectives on SORNA eligibility criteria, the SMART Office’s delegation criteria and process, the challenges that tribes face with implementation, and the actions that the SMART Office and others have taken to address these challenges. We selected these associations because they represent the interests of tribal communities or state and local law enforcement agencies that assist jurisdictions, including tribes, with SORNA implementation.

We conducted this performance audit from September 2013 to November 2014 in accordance with generally accepted government auditing standards. Those standards require that we plan and perform the audit to obtain sufficient, appropriate evidence to provide a reasonable basis for our findings and conclusions based on our audit objectives. We believe that the evidence obtained provides a reasonable basis for our findings and conclusions based on our audit objectives.

Appendix II: SORNA Substantial Implementation Checklist Tool

The Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office) has developed the Sex Offender Registration and Notification Act (SORNA) Substantial Implementation Checklist tool to be used by jurisdictions in developing, organizing, and submitting a substantial implementation package for review. While not intended to be a definitive guide to SORNA’s full implementation requirements, the SORNA checklist is organized into 14 sections covering the major requirements of the law, as shown in table 1.

Appendix III: Extent to Which Eligible Tribes Have Implemented the Sex Offender Registration and Notification Act (SORNA)

Appendix III: Extent to Which Eligible Tribes Have Implemented the Sex Offender Registration and Notification Act (SORNA)

According to the Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (SMART Office), the 214 tribes that are eligible to implement SORNA are located in 33 states; of these states, 11 have substantially implemented SORNA. As of August 2014, the SMART Office has determined that 164 tribes have retained their authority to implement SORNA, while the remainder did not retain their authority because they either elected to delegate their authority to a state (24 tribes) or the SMART Office delegated their authority to a state (26 tribes). Of the tribes that have retained their authority to implement the act, 71 tribes have substantially implemented SORNA; 70 tribes have submitted a complete package, but the SMART Office has not yet made a determination; 22 tribes have not submitted a complete package; and 1 tribe has not substantially implemented the act.

Appendix IV: Comments from the Department of Justice

Appendix V: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

In addition to the contact named above, Kristy Love, Assistant Director, and Edith Sohna, Analyst-in-Charge, managed this engagement. Orlando Copeland, Michael Lenington, Alicia Loucks, and Leah Marshall made significant contributions to the report. Frances Cook, Katherine Davis, Michele Fejfar, Eric Hauswirth, Kirsten Lauber, Sasan J. Najmi, and Jerome Sandau also provided valuable assistance.