[House Report 113-699]
[From the U.S. Government Publishing Office]
113th Congress } { Report
HOUSE OF REPRESENTATIVES
2d Session } { 113-699
======================================================================
NATIVE AMERICAN CHILDREN'S SAFETY ACT
_______
December 22, 2014.--Committed to the Committee of the Whole House on
the State of the Union and ordered to be printed
_______
Mr. Hastings of Washington, from the Committee on Natural Resources,
submitted the following
R E P O R T
[To accompany H.R. 4534]
The Committee on Natural Resources, to whom was referred
the bill (H.R. 4534) to amend the Indian Child Protection and
Family Violence Prevention Act to require background checks
before foster care placements are ordered in tribal court
proceedings, and for other purposes, having considered the
same, report favorably thereon with an amendment and recommend
that the bill as amended do pass.
The amendment is as follows:
Strike all after the enacting clause and insert the
following:
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Native American Children's Safety
Act''.
SEC. 2. CRIMINAL RECORDS CHECKS.
Section 408 of the Indian Child Protection and Family Violence
Prevention Act (25 U.S.C. 3207) is amended by adding at the end the
following:
``(d) By Tribal Social Services Agency for Foster Care Placements in
Tribal Court Proceedings.--
``(1) Definitions.--In this subsection:
``(A) Covered individual.--The term `covered
individual' includes--
``(i) any individual 18 years of age or
older; and
``(ii) any individual who an Indian tribe
described in paragraph (2)(A) determines is
subject to a criminal records checks under that
paragraph.
``(B) Foster care placement.--The term `foster care
placement' means any action removing an Indian child
from a parent or Indian custodian for temporary
placement in a foster home or institution or the home
of a guardian or conservator if--
``(i) the parent or Indian custodian cannot
have the child returned on demand; and
``(ii) parental rights have not been
terminated.
``(C) Indian custodian.--The term `Indian custodian'
means any Indian--
``(i) who has legal custody of an Indian
child under tribal law or custom or under State
law; or
``(ii) to whom temporary physical care,
custody, and control has been transferred by
the parent of the child.
``(D) Parent.--The term `parent' means--
``(i) any biological parent of an Indian
child; or
``(ii) any Indian who has lawfully adopted an
Indian child, including adoptions under tribal
law or custom.
``(E) Tribal court.--The term `tribal court' means a
court--
``(i) with jurisdiction over foster care
placements; and
``(ii) that is--
``(I) a Court of Indian Offenses;
``(II) a court established and
operated under the code or custom of an
Indian tribe; or
``(III) any other administrative body
of a tribe that is vested with
authority over foster care placements.
``(F) Tribal social services agency.--The term
`tribal social services agency' means the agency of the
Federal Government or of an Indian tribe described in
paragraph (2)(A) that has the primary responsibility
for carrying out foster care services or approval (as
of the date on which the proceeding described in
paragraph (2)(A) commences) of the Indian tribe.
``(2) Criminal records checks before placement.--
``(A) In general.--Except as provided in paragraph
(3), no foster care placement shall be finally approved
until the tribal social services agency--
``(i) completes a criminal records check of
each covered individual who resides in the
household or is employed at the institution in
which the foster care placement will be made;
and
``(ii) concludes that each covered individual
described in clause (i) meets such standards as
the Indian tribe shall establish in accordance
with subparagraph (B).
``(B) Standards of placement.--The standards
described in subparagraph (A)(ii) shall include--
``(i) requirements that each tribal social
services agency described in subparagraph (A)--
``(I) perform criminal records
checks, including fingerprint-based
checks of national crime information
databases (as defined in section
534(f)(3) of title 28, United States
Code); and
``(II) check any child abuse and
neglect registry maintained by the
State, and tribal abuse registries if
they exist, in which the covered
individual resides for information on
the covered individual, and request any
other State in which the covered
individual resided in the preceding 5
years, to enable the tribal social
services agency to check any child
abuse and neglect registry maintained
by that State for such information; and
``(ii) any other additional requirement that
the Indian tribe determines is necessary.
``(C) Results.--Except as provided in paragraph (3),
no foster care placement shall be ordered in any
proceeding described in subparagraph (A) if an
investigation described in clause (i) of that
subparagraph reveals that a covered individual
described in that clause has been found by a Federal,
State, or tribal court to have committed any crime
listed in clause (i) or (ii) of section 471(a)(20)(A)
of the Social Security Act (42 U.S.C. 671(a)(20)(A)).
``(D) Deadline.--Except as provided in paragraph (3),
the tribal social services agency shall satisfy the
requirements of clauses (i) and (ii) of subparagraph
(A) before issuing a final foster care license.
``(3) Emergency placement.--Paragraph (2) shall not apply to
an emergency foster care placement, as determined by Tribal
Social Services Agency described in paragraph (2)(A).
``(4) Recertification of foster homes or institutions.--
``(A) In general.--Not later than 2 years after the
date of enactment of this subsection, each Indian tribe
shall establish procedures to recertify homes or
institutions in which foster care placements are made.
``(B) Contents.--The procedures described in
subparagraph (A) shall include, at a minimum, periodic
intervals at which the home or institution shall be
subject to recertification to ensure--
``(i) the safety of the home or institution
for the Indian child; and
``(ii) that each covered individual who
resides in the home or is employed at the
institution is subject to a criminal records
check in accordance with this subsection,
including any covered individual who--
``(I) resides in the home or is
employed at the institution on the date
on which the procedures established
under subparagraph (A) commences; and
``(II) did not reside in the home or
was not employed at the institution on
the date on which the investigation
described in paragraph (2)(A)(i) was
completed.
``(C) Guidance issued by the secretary.--The
procedures established under subparagraph (A) shall be
subject to any regulation promulgated or guidance
issued by the Secretary that is in accordance with the
purpose of this subsection.
``(5) Guidance.--Not later than 1 year after the date of
enactment of this subsection and after consultation with Indian
tribes, the Secretary shall promulgate guidance regarding--
``(A) procedures for a criminal records check of any
covered individual who--
``(i) resides in the home or is employed at
the institution in which the foster care
placement is made after the date on which the
investigation described in paragraph (2)(A)(i)
is completed; and
``(ii) was not the subject of an
investigation described in paragraph (2)(A)(i)
before the foster care placement was made;
``(B) self-reporting requirements for foster care
homes or institutions in which any covered individual
described in subparagraph (A) resides if the head of
the household or the operator of the institution has
knowledge that the covered individual--
``(i) has been found by a Federal, State, or
tribal court to have committed any crime listed
in clause (i) or (ii) of section 471(a)(20)(A)
of the Social Security Act (42 U.S.C.
671(a)(20)(A)); or
``(ii) is listed on a registry described in
paragraph (2)(B)(i)(II);
``(C) procedures and guidelines for emergency foster
care placements under paragraph (3); and
``(D) procedures for certifying compliance with this
Act.''.
Purpose of the Bill
The purpose of H.R. 4534 is to amend the Indian Child
Protection and Family Violence Prevention Act to require
background checks before foster care placements are ordered in
tribal court proceedings.
Background and Need for Legislation
On June 24, 2014, the Subcommittee on Indian and Alaska
Native Affairs held an oversight hearing titled ``Child
Protection and the Justice System on the Spirit Lake Indian
Reservation.'' The purpose of this hearing was to determine the
state of child protection and safety on the Spirit Lake
Reservation in North Dakota. For several years, incidents of
child abuse, neglect, and death in the Reservation were
believed to be at epidemic levels. Several incidents came to
light after at least two federal employees alerted the press
that their agency superiors, the Bureau of Indian Affairs
(BIA), tribal law enforcement, and federal law enforcement were
not adequately responding to reports of child abuse and neglect
on the reservation.
It was revealed that the Tribe placed children in
unlicensed foster homes where sex offenders were known to
reside. In 2013, a local ABC television network affiliate in
Grand Forks, North Dakota, reported that the U.S. Marshals
verified there were 41 registered sex offenders on the Spirit
Lake Reservation, out of approximately 6,200 residents. By
comparison, the Sex Offender website for the State of North
Dakota indicates that nearby Grand Forks currently has 19
registered sex offenders out of a population of 53,000.
At the Subcommittee on Indian and Alaska Native Affairs
hearing, testimony was received from the Director of the BIA,
the chairman of the Spirit Lake Tribe, a former tribal judge,
the Administration for Children and Families of the Department
of Health and Human Services, and the Casey Foundation, which
works with tribes and federal agencies to improve tribal child
welfare services. It was heard that despite a BIA finding that
the Tribe's administration of a BIA social services program,
through a Public Law 93-638 contract, was posing an ``imminent
danger'' to the health and safety of certain Indian children on
the Reservation, the Tribe was allowed to continue operating
the program for an additional five months before it
relinquished control to the BIA.
While the BIA assumed the Public Law 93-638 contract, the
Tribe nonetheless retained certain powers over the placement of
Indian children in foster homes. Witnesses voiced concerns that
the Tribe failed to take sufficient measures to protect the
health and welfare of Indian children under its jurisdiction.
At the hearing the BIA witness acknowledged the possibility
that the Public Law 93-638 contract for federally-funded child
social services could eventually be restored to the Tribe.
Witness testimony at the hearing revealed that one of the
many problems facing Indian children in Indian country is the
lack of a federal requirement for a tribe to conduct background
checks on individuals in foster homes to which the tribe may
order the placement of Indian children. In addition, tribes may
be subject to as many as three different sets of requirements
when trying to license their foster care homes.
H.R. 4534, if enacted, would amend the Indian Child
Protection and Family Violence Prevention Act to strengthen
background checks on prospective foster care parents prior to
placement of Indian children into foster homes. Current law
does not require the federal government or Indian tribes to
perform rigorous background checks on foster parents and on
foster homes that are sufficient to ensure the safety, health,
and protection of Indian children on an Indian reservation. The
bill is necessary step to improve the health and well-being of
Indian children. The Administration testified in support of the
goals of the bill at the Subcommittee's July 29, 2014, hearing
on H.R. 4534.
During Committee markup of the bill, an en bloc amendment
was adopted that incorporates some recommendations received
from the National Indian Child Welfare Association and the
National Congress of American Indians. The amendment makes some
technical changes as well as substantive changes to the length
of time a tribe has to establish procedures to recertify foster
homes and the length of time the Secretary of the Interior has
to promulgate guidance after enactment of the bill.
Committee Action
H.R. 4534 was introduced on April 30, 2014, by Congressman
Kevin Cramer (R-ND). The bill was referred to the Committee on
Natural Resources, and within the Committee to the Subcommittee
on Indian and Alaska Native Affairs. On July 29, 2014, the
Subcommittee held a hearing on the bill. On September 18, 2014,
the Natural Resources Committee met to consider the bill. The
Subcommittee on Indian and Alaska Native Affairs was discharged
by unanimous consent. Congressman Cramer offered an amendment
designated .018 to the bill; the amendment was adopted by
unanimous consent. No further amendments were offered and the
bill, as amended, was adopted and ordered favorably reported to
the House of Representatives by unanimous consent.
Committee Oversight Findings and Recommendations
Regarding clause 2(b)(1) of rule X and clause 3(c)(1) of
rule XIII of the Rules of the House of Representatives, the
Committee on Natural Resources' oversight findings and
recommendations are reflected in the body of this report.
Compliance with House Rule XIII
1. Cost of Legislation. Clause 3(d)(1) of rule XIII of the
Rules of the House of Representatives requires an estimate and
a comparison by the Committee of the costs which would be
incurred in carrying out this bill. However, clause 3(d)(2)(B)
of that rule provides that this requirement does not apply when
the Committee has included in its report a timely submitted
cost estimate of the bill prepared by the Director of the
Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974. Under clause 3(c)(3) of rule
XIII of the Rules of the House of Representatives and section
403 of the Congressional Budget Act of 1974, the Committee has
requested but not received a cost estimate for this bill from
the Director of the Congressional Budget Office. The Committee
believes that enactment of this bill will not have a
significant effect on the federal budget.
2. Section 308(a) of Congressional Budget Act. As required
by clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives and section 308(a) of the Congressional Budget
Act of 1974, this bill does not contain any new budget
authority, spending authority, credit authority, or an increase
or decrease in revenues or tax expenditures.
3. General Performance Goals and Objectives. As required by
clause 3(c)(4) of rule XIII, the general performance goal or
objective of this bill is to amend the Indian Child Protection
and Family Violence Prevention Act to require background checks
before foster care placements are ordered in tribal court
proceedings.
Earmark Statement
This bill does not contain any Congressional earmarks,
limited tax benefits, or limited tariff benefits as defined
under clause 9(e), 9(f), and 9(g) of rule XXI of the Rules of
the House of Representatives.
Compliance With Public Law 104-4
This bill contains no unfunded mandates.
Compliance With H. Res. 5
Directed Rule Making. The Chairman does not believe that
this bill directs any executive branch official to conduct any
specific rule-making proceedings.
Duplication of Existing Programs. This bill does not
establish or reauthorize a program of the federal government
known to be duplicative of another program. Such program was
not included in any report from the Government Accountability
Office to Congress pursuant to section 21 of Public Law 111-139
or identified in the most recent Catalog of Federal Domestic
Assistance published pursuant to the Federal Program
Information Act (Public Law 95-220, as amended by Public Law
98-169) as relating to other programs.
Preemption of State, Local or Tribal Law
This bill is not intended to preempt any State, local or
tribal law.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (new matter is
printed in italic and existing law in which no change is
proposed is shown in roman):
INDIAN CHILD PROTECTION AND FAMILY VIOLENCE PREVENTION ACT
* * * * * * *
TITLE IV--INDIAN CHILD PROTECTION
* * * * * * *
SEC. 408. CHARACTER INVESTIGATIONS.
(a) By Secretary of the Interior and the Secretary of Health
and Human Services.--The Secretary and the Secretary of Health
and Human Services shall--
(1) compile a list of all authorized positions within
their respective departments the duties and
responsibilities of which involve regular contact with,
or control over, Indian children,
(2) conduct an investigation of the character of each
individual who is employed, or is being considered for
employment, by the respective Secretary in a position
listed pursuant to paragraph (1), and
(3) prescribe by regulations minimum standards of
character that each of such individuals must meet to be
appointed to such positions.
(b) Criminal Records.--The minimum standards of character
that are to be prescribed under this section shall ensure that
none of the individuals appointed to positions described in
subsection (a) have been found guilty of, or entered a plea of
nolo contendere or guilty to, any offense under Federal, State,
or tribal law involving crimes of violence; sexual assault,
molestation, exploitation, contact or prostitution; or crimes
against persons.
(c) Investigations by Indian Tribes and Tribal
Organizations.--Each Indian tribe or tribal organization that
receives funds under the Indian Self-Determination and
Education Assistance Act or the Tribally Controlled Schools Act
of 1988 shall--
(1) conduct an investigation of the character of each
individual who is employed, or is being considered for
employment, by such tribe or tribal organization in a
position that involves regular contact with, or control
over, Indian children, and
(2) employ individuals in those positions only if the
individuals meet standards of character, no less
stringent than those prescribed under subsection (a),
as the Indian tribe or tribal organization shall
establish.
(d) By Tribal Social Services Agency for Foster Care
Placements in Tribal Court Proceedings.--
(1) Definitions.--In this subsection:
(A) Covered individual.--The term ``covered
individual'' includes--
(i) any individual 18 years of age or
older; and
(ii) any individual who an Indian
tribe described in paragraph (2)(A)
determines is subject to a criminal
records checks under that paragraph.
(B) Foster care placement.--The term ``foster
care placement'' means any action removing an
Indian child from a parent or Indian custodian
for temporary placement in a foster home or
institution or the home of a guardian or
conservator if--
(i) the parent or Indian custodian
cannot have the child returned on
demand; and
(ii) parental rights have not been
terminated.
(C) Indian custodian.--The term ``Indian
custodian'' means any Indian--
(i) who has legal custody of an
Indian child under tribal law or custom
or under State law; or
(ii) to whom temporary physical care,
custody, and control has been
transferred by the parent of the child.
(D) Parent.--The term ``parent'' means--
(i) any biological parent of an
Indian child; or
(ii) any Indian who has lawfully
adopted an Indian child, including
adoptions under tribal law or custom.
(E) Tribal court.--The term ``tribal court''
means a court--
(i) with jurisdiction over foster
care placements; and
(ii) that is--
(I) a Court of Indian
Offenses;
(II) a court established and
operated under the code or
custom of an Indian tribe; or
(III) any other
administrative body of a tribe
that is vested with authority
over foster care placements.
(F) Tribal social services agency.--The term
``tribal social services agency'' means the
agency of the Federal Government or of an
Indian tribe described in paragraph (2)(A) that
has the primary responsibility for carrying out
foster care services or approval (as of the
date on which the proceeding described in
paragraph (2)(A) commences) of the Indian
tribe.
(2) Criminal records checks before placement.--
(A) In general.--Except as provided in
paragraph (3), no foster care placement shall
be finally approved until the tribal social
services agency--
(i) completes a criminal records
check of each covered individual who
resides in the household or is employed
at the institution in which the foster
care placement will be made; and
(ii) concludes that each covered
individual described in clause (i)
meets such standards as the Indian
tribe shall establish in accordance
with subparagraph (B).
(B) Standards of placement.--The standards
described in subparagraph (A)(ii) shall
include--
(i) requirements that each tribal
social services agency described in
subparagraph (A)--
(I) perform criminal records
checks, including fingerprint-
based checks of national crime
information databases (as
defined in section 534(f)(3) of
title 28, United States Code);
and
(II) check any child abuse
and neglect registry maintained
by the State, and tribal abuse
registries if they exist, in
which the covered individual
resides for information on the
covered individual, and request
any other State in which the
covered individual resided in
the preceding 5 years, to
enable the tribal social
services agency to check any
child abuse and neglect
registry maintained by that
State for such information; and
(ii) any other additional requirement
that the Indian tribe determines is
necessary.
(C) Results.--Except as provided in paragraph
(3), no foster care placement shall be ordered
in any proceeding described in subparagraph (A)
if an investigation described in clause (i) of
that subparagraph reveals that a covered
individual described in that clause has been
found by a Federal, State, or tribal court to
have committed any crime listed in clause (i)
or (ii) of section 471(a)(20)(A) of the Social
Security Act (42 U.S.C. 671(a)(20)(A)).
(D) Deadline.--Except as provided in
paragraph (3), the tribal social services
agency shall satisfy the requirements of
clauses (i) and (ii) of subparagraph (A) before
issuing a final foster care license.
(3) Emergency placement.--Paragraph (2) shall not
apply to an emergency foster care placement, as
determined by Tribal Social Services Agency described
in paragraph (2)(A).
(4) Recertification of foster homes or
institutions.--
(A) In general.--Not later than 2 years after
the date of enactment of this subsection, each
Indian tribe shall establish procedures to
recertify homes or institutions in which foster
care placements are made.
(B) Contents.--The procedures described in
subparagraph (A) shall include, at a minimum,
periodic intervals at which the home or
institution shall be subject to recertification
to ensure--
(i) the safety of the home or
institution for the Indian child; and
(ii) that each covered individual who
resides in the home or is employed at
the institution is subject to a
criminal records check in accordance
with this subsection, including any
covered individual who--
(I) resides in the home or is
employed at the institution on
the date on which the
procedures established under
subparagraph (A) commences; and
(II) did not reside in the
home or was not employed at the
institution on the date on
which the investigation
described in paragraph
(2)(A)(i) was completed.
(C) Guidance issued by the secretary.--The
procedures established under subparagraph (A)
shall be subject to any regulation promulgated
or guidance issued by the Secretary that is in
accordance with the purpose of this subsection.
(5) Guidance.--Not later than 1 year after the date
of enactment of this subsection and after consultation
with Indian tribes, the Secretary shall promulgate
guidance regarding--
(A) procedures for a criminal records check
of any covered individual who--
(i) resides in the home or is
employed at the institution in which
the foster care placement is made after
the date on which the investigation
described in paragraph (2)(A)(i) is
completed; and
(ii) was not the subject of an
investigation described in paragraph
(2)(A)(i) before the foster care
placement was made;
(B) self-reporting requirements for foster
care homes or institutions in which any covered
individual described in subparagraph (A)
resides if the head of the household or the
operator of the institution has knowledge that
the covered individual--
(i) has been found by a Federal,
State, or tribal court to have
committed any crime listed in clause
(i) or (ii) of section 471(a)(20)(A) of
the Social Security Act (42 U.S.C.
671(a)(20)(A)); or
(ii) is listed on a registry
described in paragraph (2)(B)(i)(II);
(C) procedures and guidelines for emergency
foster care placements under paragraph (3); and
(D) procedures for certifying compliance with
this Act.
* * * * * * *
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