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The Verde Independent | Cottonwood, Arizona

home : latest news : state May 1, 2016

9/26/2013 2:55:00 PM
Court: Tribal sex offenders don't have to register with state

Howard Fischer
Capitol Media Services

PHOENIX -- Tribal members living on tribal land cannot be prosecuted by the state for failing to register as sex offenders, the Arizona Court of Appeals ruled Monday.

In a unanimous decision, the judges said state law registration requirements cannot supersede what is required by federal law. And absent some very specific conditions, the state has no legal authority.

Judge Philip Espinosa, writing for the court, also said it is irrelevant that this person was found off the reservation.

Attorney General Tom Horne said he had not had a chance to review the ruling.

Court records show Raymond John was convicted in the late 1980s in federal of two counts of sexual assault on the reservation.

In 2010 he was arrested by Coconino County sheriff's deputies outside the reservation and charged with failure to register as a sex offender as required by Arizona law. He pleaded guilty and was placed on probation.

John immediately asked the verdict be set aside, arguing the state had no authority. He said he was a member of the Navajo Nation living on tribal land and had not worked, resided or attended school outside reservation boundaries.

The trial judge refused, leading to the appeal.

Espinosa said that, under federal law, a sex offender must register. It also requires tribes to implement their own registration system or delegate that authority to other jurisdictions.

Federal law does say a tribe loses its authority if it does not come up with a suitable program. But Espinosa said the power is delegated to someone else only if the U.S. attorney general first determines the tribe has not complied and is likely incapable of doing so in a reasonable time.

That, he said, did not occur here. And that means Arizona cannot impose registration requirements on tribal members living on tribal lands.

The appellate judges also rejected arguments by prosecutors that the state acquired jurisdiction over John "the moment he stepped off the reservation.' They said John's conviction is based entirely on his conduct within Navajo Nation territory, where he lives.

Beyond the issues related specific to the Navajo Nation, Espinosa said even if tribal members living on the reservation were required by federal law to register with the state, failing to do so would violate only federal law. That still leaves the state powerless to prosecute John in state court under state laws.

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