[Senate Report 116-230]
[From the U.S. Government Publishing Office]
Calendar No. 476
116th Congress } { Report
SENATE
2d Session } { 116-230
======================================================================
BRIDGING AGENCY DATA GAPS AND ENSURING SAFETY FOR NATIVE COMMUNITIES
ACT
_______
June 4, 2020--Ordered to be printed
_______
Mr. Hoeven, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 1853]
[Including cost estimate of the Congressional Budget Office]
The Committee on Indian Affairs, to which was referred the
bill (S. 1853) to require Federal law enforcement agencies to
report on cases of missing or murdered Indians, and for other
purposes, having considered the same, reports favorably thereon
with an amendment in the nature of a substitute, and recommends
that the bill, as amended, do pass.
PURPOSE
The bill is designed to improve public safety in Native
communities by addressing statutory barriers, and practical
inefficiencies that limit investigation of and information
sharing in criminal cases that involve Native communities and
their members.
BACKGROUND
Indian Country is home to law enforcement agencies (LEAs)
operated by federal, Tribal, state, and local governments.
Approximately 160 Tribes directly operate their own police
departments. Others rely on federally-operated Bureau of Indian
Affairs (BIA) police departments, or state and local LEAs
pursuant to P.L. 83-280.\1\
---------------------------------------------------------------------------
\1\ Commonly referred to as ``P.L. 280,'' this law transferred
federal jurisdiction over reservations to the state governments of
California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska. It also
allowed other states the option to acquire jurisdiction as well.
---------------------------------------------------------------------------
As a result of this complicated network of LEAs, collecting
and sharing criminal justice data in Indian Country is a
barrier to ensuring public safety for many Native communities.
Congress has attempted to increase interagency coordination
between federal, state, Tribal, and local LEAs over the past
several decades, but criminal case information is still
fragmented and compartmentalized between different LEA data
systems.\2\
---------------------------------------------------------------------------
\2\ For example, Congress passed the Fix NICS Act as part of the
2018 Consolidated Appropriations Act (Pub. L. No. 115-141) to require
state and Tribal government to report to the federal criminal
background check database. Prior to that, in 1990, Congress enacted the
National Child Search Assistance Act (Pub. L. No. 101-647) which
requires state, local, and federal law enforcement agencies to
immediately input information about abducted children into the FBI's
National Crime Information Center.
---------------------------------------------------------------------------
For example, the Department of Justice (DOJ) operates two
databases that track missing persons cases: the Federal Bureau
of Investigation's (FBI) National Crime Information Center
(NCIC) and the National Institute of Justice's (NIJ) National
Missing and Unidentified Persons System (NamUs). These two
databases do not share information with each other and, for
cases of missing adults, federal, state, Tribal participation
in these two reporting systems is optional.\3\ As such, LEAs
may be unable to access other LEA's missing person case
information.
---------------------------------------------------------------------------
\3\ The BIA-OJS Director recently issued a directive instructing
BIA direct-service LEAs to input missing persons cases into NamUs.
However, because the order is a directive, enforcement may prove
difficult or lacking.
---------------------------------------------------------------------------
Law enforcement staffing shortages compound issues created
by the data barriers discussed above. The BIA supports
approximately 3,000 direct service and Tribal law enforcement
officer positions.\4\ The DOJ assigns approximately 140 FBI
agents to work in Indian Country, but does not detail Drug
Enforcement Agency (DEA) agents or U.S. Marshalls to Indian
Country.\5\ In the aggregate, these law enforcement personnel
police 56 million acres for more than 200 non-``Pub. L. 280''
reservations.\6\ To illustrate this point, in FY2010, Tribes
had only 1.9 officers per 1,000 residents compared to an
average of 3.5 officers per 1,000 residents nationwide. Upon
reviewing this data, the Indian Law and Order Commission
estimated that Indian Country had a 50% staffing shortfall for
law enforcement personnel.\7\
---------------------------------------------------------------------------
\4\ Indian Law & Order Comm'n, A Roadmap for Making Native America
Safer: Report to the President & Congress of the United States 65
(2013).
\5\ Office of the Inspector General, U.S. Dep't of Justice, Review
of the Department's Tribal Law Enforcement Efforts Pursuant to the
Tribal Law and Order Act of 2010 8 (2017).; U.S. Dep't of Justice,
Indian Country Investigations & Prosecutions 6 (2018).
\6\ Supra, n.4.
\7\ U.S. Comm'n on Civil Rights, Broken Promises: Continuing
Federal Funding Shortfall for Native Americans 48 (2018).
---------------------------------------------------------------------------
NEED FOR LEGISLATION
Legislation is needed to address statutory barriers to
public safety improvements in Native communities. For example,
the DOJ cannot link NCIC and NamUs without statutory
authorization. Additionally, Tribes would like to ensure
continuation of existing Administrative initiatives (e.g.,
DOJ's TAP pilot) and/or practices (e.g., BIA's directive
requiring direct-service LEAs to input cases into NamUs) by
codifying them in law.
SUMMARY OF THE BILL
This bill addresses critical public safety needs in Native
communities--including urban Indian communities, Indian
Country, Pub. L. 280 states, and Alaska--by bridging LEA data
gaps and improving Tribal public safety resources.
Title I addresses inefficiencies in federal criminal
databases, increases Tribal access to federal criminal
databases, improves public data on missing and murdered
Indigenous women cases, and increases transparency around
public safety staffing level data in Indian Country.
Title II promotes more efficient recruitment of BIA law
enforcement officers, provides Tribes with resources to improve
cross-jurisdiction public safety coordination, and mitigates
against federal law enforcement personnel mishandling evidence
in Indian Country cases.
LEGISLATIVE HISTORY
On June 13, 2019, Senators Udall, Murkowski, Cortez Masto,
McSally, Tester, and Smith introduced S. 1853, the Bridging
Agency Data Gaps and Ensuring Safety for Native Communities
Act. The Senate referred the bill to the Committee on Indian
Affairs. On June 19, 2019, the Committee held a legislative
hearing on S. 1853. The Committee received testimony from the
DOJ Office of Tribal Justice and the BIA-Office of Justice
Services. Both administration witnesses expressed their desire
to continue working with staff on the bill, and to provide
further technical assistance on the substance of the
legislation. The Committee also received testimony in support
of the bill from the Chief Justice of the Central Council
Tlingit and Haida Indian Tribes of Alaska, and the Secretary of
the United South and Eastern Tribes.
On December 11, 2019, the Committee met at a duly called
business meeting to consider S. 1853. Senator Udall filed one
amendment in the nature of a substitute to S. 1853. The
Committee accepted the amendment and passed S. 1853 favorably,
as amended.
Representative Haaland introduced a House companion bill,
H.R. 4289, on September 11, 2019. H.R. 4289 was subsequently
referred to the House Committees on Natural Resources, the
Judiciary, Energy and Commerce, and Oversight and Government
Reform for further consideration. No further action has been
taken on H.R. 4289 at this time.
AMENDMENT SUMMARY
Following extensive input and technical assistance from the
DOJ, the Department of the Interior, Tribes, and Native
organizations, Senator Udall drafted a substitute amendment to
S. 1853, which the Committee adopted by voice vote. The
amendment makes substantive, clarifying, and technical updates
to the bill.
The specific clarifying changes include--
Changes the ``Relevant Tribal Stakeholder''
to a ``Relevant Tribal Organization''.
Renames the ``Tribal Access Program'' (TAP)
to the ``Tribal Civil and Criminal Information Access
Program'' (TCCIAP).
Incorporates ``as appropriate'' in sections
101(a), 101(c), and 103(b)(3) to ensure executive
privilege concerns related to the sharing of criminal
case information are not compromised unintentionally by
the bill.
Renames NamUs ``Tribal liaison'' established
in section 102 a ``Tribal facilitator''.
Changes ``on or near Indian land'' to
``adjacent'' to ensure no confusion arises related to
which lands are covered by the bill.
Clarifies that federal law enforcement
agencies are only responsible for entering cases in
federal databases that they investigate.
Clarifies that the NamUs Tribal Facilitator
is only responsible for reporting summary data on cases
of interest to Tribes he or she can identify in NamUs.
Clarifies that the Attorney General has the
ability to transfer the unused funds from the specified
DOJ's Office of Violence Against Women meant to
supplement the TCCIAP directly to the TCCIAP account.
The specific substantive changes include--
Replaces the terms ``murder'' and
``manslaughter'' (and all associated terms) with the
term ``death investigation'' to ensure the capture of
more relevant data.
Adds a definition for ``unclaimed remains
cases of interest to Indian Tribes.''
Requires the NamUS Tribal Facilitator to
coordinate with the Executive Office for U.S. Attorneys
and the National Indian Country Training Initiative).
Increases the authorization level for the
TCCIAP from $3,000,000 for five years to $5,000,000 for
two years and $7,000,000 for three years.
Authorizes Tribes to use federal criminal
databases for administrative background purposes,
giving them parity with state and local governments.
Amends the BIA-OJS's annual unmet needs
reporting requirement to require more specific
information on investigation staffing needs.
Requires GAO to review--
DOJ's Indian Country law
enforcement staffing needs reporting; and
Tribal law enforcement agencies
evidence collection needs as part of the study
mandated in section 203.
Requires states that wish to receive
coordination grants authorized under section 202 to
enter into data sharing agreements with the Tribes.
SECTION-BY-SECTION (AS REPORTED)
Section 1: Short title
The bill is called the ``Bridging Agency Data Gaps and
Ensuring Safety for Native Communities Act'' or ``BADGES for
Native Communities Act''
Sec. 2. Definitions
This section provides for definitions to be used throughout
the bill.
TITLE 1--BRIDGING AGENCY DATA GAPS
Section 101. Federal Law Enforcement Database Reporting Requirements
This section requires the Attorney General (AG) to
undertake actions needed to have all missing persons and
unidentified remains cases entered into federally-maintained
law enforcement databases automatically entered into NamUs. It
requires the AG to ensure this information is transmitted with
the permission of the law enforcement agency (LEA) handling the
case, and with appropriate safeguards to insure sensitive
information is not compromised. These actions to connect the
databases must be undertaken within two years of enactment of
S. 1853.
Additionally, this section requires BIA direct-service
officers, FBI agents, and any other federal law enforcement
agencies with jurisdiction in Indian Country to report missing
persons and unidentified remains cases of interest to Indian
Tribes to NamUs during the above-mentioned two-year period
following enactment of S. 1853.
Finally, this section requires the BIA-OJS Director and the
FBI Director to appoint facilitators to coordinate with the
NamUs Tribal Facilitator established under section 102. These
facilitators will ensure relevant cases of interest to Indian
Tribes are correctly reported to NamUs. Facilitators will
conduct outreach to state and local LEAs that exercise
jurisdiction over Indian country under Pub. L. 83-280 authority
to encourage increased use of NamUs for cases of interest to
Indian Tribes.
Section 102. National Missing and Unidentified Persons System Tribal
Liaison
This section requires the NIJ Director to appoint at least
one Tribal facilitator, charged with ongoing Tribal outreach,
to serve as a NamUs ``point of contact'' for Tribes regarding
relevant cases of interest, and coordinating with the BIA and
FBI.
This section further requires the Attorney General, acting
through the NIJ Director, to produce annual publicly available
reports that describe the activities of the NamUs Tribal
facilitator(s), and summarize NamUs data trends on cases of
interest to Indian Tribes.
Section 103. Law Enforcement Data Sharing with Indian Tribes
This section codifies DOJ's Tribal Access Program pilot,
renamed as the Tribal Civil and Criminal Information Access
Program (TCCIAP).
To support the operation of the TCCIAP, this section
authorizes $5,000,000 for fiscal year (FY) 2021-2022, and
$7,000,000 for FY2023-2025. Section 103 also authorizes DOJ to
transfer and repurpose unused funds from certain accounts at
the Office of Violence Against Women to supplement the TCCIAP.
Finally, this section authorizes Tribes to use federal
criminal databases for administrative background purposes,
giving them parity with state and local governments.
Section 104. Report on Indian Country Law Enforcement Personnel
Resources and Need
This section modifies the BIA-OJS's existing ``unmet
needs'' reporting requirements, created by the Tribal Law and
Order Act of 2010.\8\ Section 104 of S. 1853 provides that the
BIA-OJS ``unmet needs'' report shall include additional
staffing categories and evidence storage and processing
infrastructure needs.
---------------------------------------------------------------------------
\8\See Indian Arts and Crafts Amendments Act of 2010, Pub. L. No.
111-211, tit. II Sec. 211(b), 124 Stat. 2258, 2264-2265 (2010)
(codified at 25 U.S.C. 2801 et seq. (2010)).
---------------------------------------------------------------------------
Additionally, this section directs the AG to report on the
number of law enforcement personnel in the FBI, DEA, U.S.
Marshalls, ATF, and U.S. Attorneys' Offices assigned to work on
criminal investigations and prosecutions in Indian Country. It
directs the Comptroller General to assess the accuracy and
impacts of the reports produced by the AG in compliance with
this section.
TITLE II--ENSURING SAFETY FOR NATIVE COMMUNITIES
Section 201. Demonstration Program on Bureau of Indian Affairs
Employment Background Checks
This section authorizes a five-year demonstration program
to allow BIA to conduct its own background and security
clearance checks for newly hired law enforcement personnel.
Section 202. Missing and Murdered Response Coordination Grant Program
This section authorizes a five-year DOJ grant program to
support state, Tribal, and non-profit organization coordination
efforts related to cases of interest to Indian Tribes.
Section 203. GAO Study on Federal Law Enforcement Agency Evidence
Collection, Handling, and Processing
This section directs the Comptroller General to review BIA
and FBI evidence collection, handling, and processing for cases
originating in Indian Country. It also requests the Comptroller
General to look for similar evidence collection issues
encountered by Tribal LEAs and state and local LEAs that have
assumed federal jurisdiction over certain reservations (i.e.,
``P.L. 280'' states).
Section 204. Bureau of Indian Affairs and Tribal Law Enforcement
Officer Counseling Resources Interdepartmental Coordination
This section directs DOJ and the Department of Health and
Human Services to work with the BIA-OJS Director to ensure BIA
and Tribal police have access to federal resources for post-
traumatic stress disorder and other line-of-duty related mental
health traumas.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated May 5, 2020, was prepared
for S. 1853:
U.S. Congress,
Congressional Budget Office
Washington, DC, May 5, 2020.
Hon. John Hoeven,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 1853, the BADGES for
Native Communities Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Jon Sperl.
Sincerely,
Phillip L. Swagel,
Director.
Enclosure.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
\9\ NamUs is a national information clearinghouse and resource
center for cases of missing, unidentified, and unclaimed people. The
organization is funded and administered by the Department of Justice's
(DOJ's) National Institute of Justice and managed through a cooperative
agreement with the University of North Texas. NamUs received a $5.5
million grant from DOJ in 2019.
---------------------------------------------------------------------------
Bill summary: S. 1853 aims to improve coordination between
federal law enforcement agencies within the Department of
Justice (DOJ) and the Bureau of Indian Affairs (BIA) and their
counterparts in tribal governments. The bill would facilitate
access for tribal law enforcement officials to national crime
information databases, would require greater sharing and input
of information on criminal cases affecting Indians into those
databases, and would authorize grants to improve tribal law
enforcement agencies' capacity to hire more officers and
respond to cases of missing and murdered Indians.
Estimated Federal cost: The estimated budgetary effect of
S. 1853 is shown in Table 1. The costs of the legislation fall
within budget functions 450 (community and regional
development) and 750 (administration of justice).
TABLE 1.--ESTIMATED INCREASES IN SPENDING SUBJECT TO APPROPRIATION UNDER S. 1853
----------------------------------------------------------------------------------------------------------------
By fiscal year, millions of dollars--
----------------------------------------------------------------------
2020 2021 2022 2023 2024 2025 2020-2025
----------------------------------------------------------------------------------------------------------------
Tribal Access Program:
Authorization........................ 0 5 5 7 7 7 31
Estimated Outlays.................... 0 3 4 6 7 7 27
Enhanced Information Sharing with NamUsa:
Estimated Authorization.............. 0 4 4 3 3 3 17
Estimated Outlays.................... 0 4 4 3 3 3 17
Coordination Grants:
Authorization........................ 1 1 1 1 1 0 5
Estimated Outlays.................... * 1 1 1 1 1 5
BIA Law Enforcement Demonstration
Program:
Estimated Authorization.............. 0 * * 1 1 1 3
Estimated Outlays.................... 0 * * 1 1 1 3
Other Provisions:
Estimated Authorization.............. 0 1 1 1 * * 3
Estimated Outlays.................... 0 1 1 1 * * 3
Total Changes:
Estimated Authorization.............. 1 11 12 12 12 11 59
Estimated Outlays.................... * 9 10 12 12 12 55
----------------------------------------------------------------------------------------------------------------
BIA = Bureau of Indian Affairs; * = between zero and $500,000.
aNamUs is a national clearinghouse and resource center for information on missing, unidentified, and unclaimed
people.
Basis of estimate: For this estimate, CBO assumes that S.
1853 will be enacted during fiscal year 2020 and that the
authorized and estimated amounts will be appropriated for each
fiscal year. Estimated outlays are based on historical spending
patterns for similar programs and activities and on CBO's
analysis of information provided by federal agencies. CBO
estimates that implementing S. 1853 would cost $55 million over
the 2020-2025 period.
Tribal Access Program: Section 103 of the legislation would
authorize the Tribal Access Program, a program administered by
DOJ to provide tribal law enforcement agencies with access to
national information systems about crimes for federally
authorized purposes. The bill would authorize the appropriation
of $5 million annually for 2021 and 2022, and $7 million
annually over 2023-2025, to continue program operations. CBO
estimates that implementing this provision would cost $27
million over the 2020-2025 period.
Enhanced Information Sharing with NamUs: S. 1853 would
require DOJ within two years of enactment to share information
between the agency's national crime information databases and
the National Missing and Unidentified Persons System (known as
NamUs), an information clearinghouse funded by DOJ.
Using information from DOJ about the costs of operating the
agency's crime information databases, CBO expects that
providing access to NamUS would require technology upgrades and
security enhancements, three additional employees to oversee
system maintenance and coordinate with NamUs, and contractor
support. Over the 2020-2025 period, CBO estimates that it would
cost DOJ $17 million to implement the provision. That cost
includes one-time costs for technology upgrades and about $3
million each year for personnel, system maintenance, and
grants.
Coordination Grants: Section 202 would authorize the
appropriation of $1 million annually over the 2020-2024 period
for DOJ to make grants to tribal governments to investigate
missing persons cases, input information into the NamUs system,
and improve coordination among law enforcement on such cases.
CBO estimates that implementing that provision would cost $5
million over the 2020-2025 period.
BIA Law Enforcement Demonstration Program: Section 201
would authorize BIA to carry out a five-year program to conduct
background checks and make security clearance determinations
for law enforcement positions within the bureau. Using
information from BIA, CBO expects that the agency would need
four new employees to conduct background checks under the
program at an average annual cost of about $120,000 per
employee. The bill also would require the Government
Accountability Office (GAO) to report within 18 months of
enactment on the efficacy of the program. In total, CBO
estimates that implementing this section would cost $3 million
over the 2020-2025 period.
Other Provisions: Several other provisions in S. 1853 would
result in additional costs for federal agencies, including
various reporting requirements. Notably, the bill would require
GAO to report on unmet staffing needs for federal law
enforcement agencies that conduct criminal investigations in
Indian country. The bill also would require GAO to examine
DOJ's procedures for collecting, handling, and processing
evidence and the barriers to improving those practices among
federal, state, and tribal law enforcement. Using information
about the cost of other GAO studies, CBO estimates that those
studies and other requirements in S. 1853 would cost about $3
million over the 2020-2025 period. Any spending would be
subject to the availability of appropriated funds.
Pay-As-You-Go considerations: None.
Increase in long-term deficits: None.
Mandates: None.
Estimate prepared by: Federal Costs: Jon Sperl; Mandates:
Rachel Austin.
Estimate reviewed by: Kim P. Cawley, Chief, Natural and
Physical Resources Cost Estimates Unit; H. Samuel Papenfuss,
Deputy Director of Budget Analysis.
REGULATORY AND PAPERWORK IMPACT STATEMENT
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee believes that S. 1853 will
have minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 1853.
CHANGES IN EXISTING LAW
On February 6, 2019, the Committee unanimously approved a
motion to waive subsection 12 of rule XXVI of the Standing
Rules of the Senate. In the opinion of the Committee, it is
necessary to dispense with subsection 12 of rule XXVI of the
Standing Rules of the Senate to expedite the business of the
Senate.
[all]