Law | National

Tribal courts seek greater access to state and federal systems

Monday, April 6, 2015

Judge Richard Blake of the Hoopa Valley Tribe in California. Photo by Kristan Korns / Two Rivers Tribune

The National American Indian Court Judges Association is calling for "immediate" access to state and federal criminal registration systems, a promise that remains unfulfilled nearly five years after the passage of the Tribal Law and Order Act.

Section 233 of the law calls on the Department of Justice to open federal criminal information databases to tribes. In November 2014, the FBI announced that tribes can access the National Instant Criminal Background Check System.

However, the change in policy "does not address the ability of a tribe to submit information to the NICS," the FBI said in the Federal Register at the time. That appears to run counter to the language in Section 233, which states that tribes shall be allowed to "access and enter information" into the systems.

The discrepancy is making headlines as a member of the Tulalip Tribes of Washington faces federal charges for purchasing firearms despite being under a tribal court protection order. If the information had been entered into NICS, a background check would have prevented Raymond Lee Fryberg Jr., 42, from acquiring five guns, one of which his late son used in a fatal school shooting last October.

“This problem is not a local problem or unique to the Tulalip Tribes. The issue of lack of entry of tribal protection orders in state and federal databases is a national crisis,” said Richard Blake, a member of the Hoopa Valley Tribe of California who serves as the president of the board of directors for NAICJA.

At the state level, Blake noted that tribes are barred from submitting data by the Washington State Police. So some tribes, including Tulalip, have entered into agreements in which local courts submit the information to the state database.

But Blake, who served as chief judge for his tribe, said the process is not flawless. Without direct tribal access, cases could fall through the cracks.

"We had hoped that with the passage of the Tribal Law and Order Act of 2010 which mandated the federal government to provide access to federal databases that this critical gap in public safety would be closed," Blake said. "But here we are five years later and the U.S. Department of Justice and the FBI are still in violation of the statutory requirement that tribes be given direct access to the NCIC system."

The October 24, 2014, shooting at the Marysville-Pilchuck High School claimed the lives of four young people and another was wounded by gunfire. The shooter turned the gun on himself.

"Our hearts go out to the victims and their families of the Marysville Pilchuck High School shooting at this very difficult time. Our sincere hope is that immediate direct access is granted to tribal courts to enter protection orders to prevent further harm and loss of life,” said Blake.

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