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Prior to the founding of Hobbs Straus, Jerry Straus was lead Washington, D.C. counsel in the first large scale case for the restoration of historic Indian land – the restoration of the 48,000 acre Blue Lake lands to the Taos Pueblo.

General Memorandum 15-062

General Memorandum 15-062
Departments of Justice and Interior Introduce Two Programs to Expand Tribal Access to National Crime Information Databases

On August 19, 2015, the Departments of Justice and Interior announced the launch of the initial phases of two programs which will expand tribal access to national crime information databases for civil and criminal purposes. The Tribal Access Program for National Crime Information (TAP) will expand tribal and Bureau of Indian Affairs (BIA) law enforcement access to national crime information databases. In addition, the BIA Office of Justice Services (BIA-OJS) Purpose Code X Program will allow the BIA-OJS to perform name-based searches of criminal history records (at the request of tribal social service agencies) in order to facilitate the emergency placement of at-risk children in temporary safe homes. Copies of the press releases are attached.

Background and Underlying Law. The lack of tribal access to federal criminal information databases has been a longstanding problem for Indian tribes and their law enforcement and social service agencies, and these programs represent a long awaited step towards addressing this issue. The statutory authority for the Department of Justice's TAP dates back to the Tribal Law and Order Act of 2010 (PL 111-211) (TLOA). See our General Memorandum 10-100 of July 29, 2010. Section 233 of the TLOA amended 28 U.S.C. § 534: to expressly require the U.S. Attorney General to permit tribal and BIA law enforcement agencies to access, enter information into, and obtain information from federal criminal information databases; and added Indian tribes to the list of government entities with whose "authorized officials" the U.S. Attorney General shall exchange records and information. However, Section 233 requires that in order to access these databases, tribal law enforcement officials must meet "applicable federal or state requirements". Section 233 narrowly defines a tribal "authorized law enforcement official" as a "tribal justice official serving an Indian tribe with criminal jurisdiction over Indian country."

Although the statutory authority for the BIA-OJS Purpose Code X Program is not cited in the press releases, it may lie, at least partially, in Section 151 of the Adam Walsh Child Protection and Safety Act of 2006 (PL 109-248) (Adam Walsh Act), which amended 42 U.S.C. § 16961 to require the Attorney General to ensure access to national crime information databases by "governmental social service agencies with child protection responsibilities, to be used by such agencies only in investigating or responding to reports of child abuse, neglect, or exploitation." See our General Memorandum 06-134 of November 3, 2006. Although Section 151 does not expressly reference Indian tribes, tribes and the National Congress of American Indians have advocated for access to national crime information databases under this authority. See NCAI Resolution ATL-14-048.

The TAP and the BIA-OJS Purpose Code X Program are the products of a working group formed in 2014 by the Departments of Justice and Interior to "identify sustainable solutions that provide tribes access to national crime information that addresses criminal and civil needs of tribes." As a related matter, in November of 2014, the FBI published a final rule in the FEDERAL REGISTER allowing tribal criminal justice agencies access to the National Instant Criminal Background Check System (NICS) for the purpose of conducting background checks on prospective gun buyers. See our General Memorandum 14-092 of December 5, 2015.

Below is a brief summary of the two programs.

Tribal Access Program for National Crime Information (TAP). This initial phase of the TAP will be limited to assisting up to 10 tribes who already have law enforcement agencies. In the meantime, the Department of Justice (DOJ) will continue to work with Congress for additional funding to more broadly deploy the system in order to address the needs of the remaining tribes. These initial 10 tribes will receive support and training from the DOJ. DOJ will analyze the needs of each participating tribe for national crime information and "help provide appropriate solutions, including a state-of the art biometric/biographic computer workstation with capabilities to process finger and palm prints, take mugshots and submit records to national databases, as well as the ability to access CJIS [the FBI's Criminal Justice Information Services Division] systems for criminal and civil purposes..." CJIS systems include the:

• National Crime Information Center (NCIC)
• National Instant Criminal Background Check System (NCIS)
• Next Generation Identification (NGI)
• Law Enforcement Enterprise Portal (LEEP)
• National Data Exchange (N-DEx)

The FBI maintains the host CJIS systems and provides a telecommunications network to one CJIS Systems Agency (CSA) in each of the 50 states, the District of Columbia, the territories, Canada, and federal agencies (including DOJ). The DOJ will serve as the CSA for federally recognized tribes; however, "DOJ recognizes that some tribes have access to certain CJIS stems through state CSA networks. In that instance, DOJ encourages a three-way discussion with the tribe and the state CSA about their information needs." Further information on the TAP, including a short description of each database, is here: http://www.justice.gov/tribal/tribal-access-program-tap

BIA-OJS Purpose Code X Program. The Office of the Assistant Secretary-Indian Affairs explains, "Under the BIA-OJS Purpose Code X Program, BIA-OJS dispatch centers will be available to provide 24-hour access to criminal history records, so name-based checks can be done immediately [allowing tribal social service agencies to immediately determine in emergency situations whether or not a child can be placed in a certain individual's home temporarily]. Protocols for operating under the new program are being developed by BIA-OJS and will be tested by a select number of tribes prior to a nationwide implementation of the program." The press release does not specify a process by which interested tribes should contact BIA-OJS, nor does it specify a date by which a letter of interest or application must be received.

Please let us know if we may provide additional information regarding the TAP or the Purpose Code X Program. We anticipate that further information will be released on these programs.

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Inquiries may be directed to:
Tim Seward (tseward@hobbsstraus.com)
Moriah O'Brien (mobrien@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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