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Tonya Davis of Hobbs, Straus, Dean & Walker, LLP on Implementation of the REAL ID Act and Its Effect on Tribal Sovereignty

In this Expert Commentary, Tonya A. Davis of Hobbs, Straus, Dean & Walker, LLP discusses problems with the final rule the Department of Homeland Security issued in January 2008 to implement the REAL ID Act of 2005 (Pub. L. No. 109-13, div. B) regarding drivers' licenses. The regulation, at 73 Fed. Reg. 5271 (codified at 6 C.F.R. Part 37), causes many concerns for Native Americans. Among other things, as the author explains, DHS has not shown proper respect for tribal sovereignty. In addition, the language about documents acceptable to show citizenship and identity does not take into account the situations of many Native Americans. Laying out the regulation's practical and procedural problems, as well as potential remedies, Ms. Davis writes:

"The final regulation implementing the REAL ID Act drivers' license provisions prevents States from accepting tribal ID cards as forms of identification, and ignores the problems many tribal members will face in obtaining required documents. DHS refused to adhere to the directive of Executive Order 13,175, requiring consultation and coordination with Indian tribal governments in the development of federal policies that have tribal impact, in developing the REAL ID final regulations. However, even absent an administrative fix by DHS, there are still opportunities to reduce the restrictive effect of the REAL ID regulations on tribes.

"On January 11, 2008, DHS released its final regulations (final rule) under the REAL ID Act of 2005. The REAL ID Act requires people entering federal buildings, boarding airplanes, or entering nuclear power plants to present identification that has met certain security and authentication standards. These standards involve a number of aspects of the process used to issue identification documents, including: information and security features that must be incorporated into each card; application information to establish the identity and immigration status of an applicant before a card can be issued; and physical security standards for facilities where drivers' licenses and applicable identification cards are produced. . . .

"The overarching concern expressed by many tribal governments and advocates is that the imposition of the REAL ID rule, without formal consultation and without recognition of the fact that members of federally recognized Indian tribes have a viable means of identifying who they are through a tribal ID, was a violation of the federal government's government-to-government relationship with tribes (as well as the Executive Orders that require federal agencies to consult with tribes on federal regulations). This is troubling because DHS has the potential to affect many aspects of tribal life, particularly for tribes located along the international border or with traditional or cultural sites in Canada or Mexico."

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