[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\
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    \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.
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    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\
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    \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.
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    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.
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    \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.
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    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\
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    \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).
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                          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.
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    \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)).
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    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.
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    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
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                                                           By fiscal year, millions of dollars--
                                          ----------------------------------------------------------------------
                                             2020      2021      2022      2023      2024      2025    2020-2025
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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
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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]