Flaw in reporting tribal cases stymies gun background checks

AP News
Posted: Apr 07, 2015 2:48 PM
Flaw in reporting tribal cases stymies gun background checks

SEATTLE (AP) — A flawed reporting system between tribes and outside authorities allowed a man to buy a handgun later used by his son to kill four classmates and himself in Washington state — a problem state and federal agencies have long known about but haven't fixed.

A domestic violence protection order issued by the Tulalip Tribal Court should have prevented Raymond Lee Fryberg Jr. from buying firearms. But the order was never entered into any state or federal criminal databases, as it would be if it came from a Washington county court.

Critics say that's because state and federal officials have failed to establish a system that allows tribal courts to enter those orders directly, or create a process that ensures it happens easily.

Fryberg passed a background check when he bought one of the guns his son, Jaylen, used in an October shooting at his high school north of Seattle. Had the protection order been in a database, Fryberg would have failed the check and been denied the gun.

It's unclear how many of the nation's 566 federally recognized tribes are dealing with the same issue, since no one tracks which tribal records are entered and which are not. But tribal leaders and the National Congress of American Indians have long called for change.

"The tribes have been begging for this to happen for over a decade," said Francesca Hillery, Tulalip Tribes spokeswoman.

A key problem is logistics. There's no uniform way to enter information on tribal protection orders into state databases or the National Instant Criminal Background Check System, and such reporting is not required by law.

"I can't think of a single tribe that wants abusers to have access to firearms, but despite our efforts, we keep hitting roadblocks," said Sarah Deer, a professor at William Mitchell College of Law in Saint Paul, Minnesota.

Stephen Fischer Jr., with the FBI's Criminal Justice Information Services, said some tribes enter protection orders into a national database themselves, while others have agreements for state or local agencies to do it for them. Some tribes have no involvement with federal and state databases.

Tulalip Tribes attorney Michelle Demmert has said in testimony to the U.S. Justice Department that tribal courts should not have to go through the states to enter data.

"As sovereign nations, we should not be treated as subservient partners to the state," she said.

In Washington, when protective orders are issued in state courts, the clerk sends the record to the sheriff, who enters it into the database, said Heather Anderson, a manager with the Washington State Patrol's criminal records division.

But the reporting process between the state and Washington's 29 federally recognized tribes is inconsistent.

The Spokane Tribal Court, for example, doesn't share protection orders with outside agencies. The Nooksack Tribal Court tells people who file orders to take them to the court in the nearest large town.

But some victims don't want protection orders registered with the state, Deer said. If they have a new address, it could trigger a notification to the perpetrator, she said.

Fryberg's former girlfriend applied for a protective order against him in 2002, saying he assaulted her, court records show. In 2012, Fryberg pleaded no contest to violating the order. He was fined and placed on probation.

Between January 2013 and July, Fryberg bought five firearms from a store on the reservation and checked "no" on a federal form asking if he was subject to a protective order.

Stephen Moore

One of the guns was the Beretta pistol Fryberg's son used to shoot Marysville-Pilchuck High School classmates and himself. The store has said it complied with all laws and conducted background checks for Fryberg's purchases.

After the pistol was traced to him, Fryberg was arrested March 31 on federal charges that he was prohibited from possessing firearms.

He is free while awaiting trial. His lawyer, John Henry Browne, said in an email that the court did not tell Fryberg he couldn't have firearms, and the case will focus on whether he lied on the federal form when he bought the guns.

Snohomish County has no record of the protection order against Fryberg, County Clerk Sonya Kraski said.

She said her office has a system that lets tribal courts share protective orders, but it's not automatic.

When a person files a protective order, the tribal court asks if they want it entered with the state, Kraski said. If the person agrees, the tribal court sends it to the county. If they don't, the order isn't entered.

The largest group representing Native Americans said in an October resolution that this patchwork reporting system isn't working.

The National Congress of American Indians said entry of tribal court cases often is done through agreements with state or county agencies, but that data entry "is frequently denied or delayed, thus jeopardizing victim safety."

The organization called on the U.S. attorney general to review how criminal databases are accessed, consult with tribal governments and develop a remedy.


Follow Martha Bellisle at https://twitter.com/marthabellisle