[Senate Report 114-37]
[From the U.S. Government Publishing Office]
Calendar No. 77
114th Congress } { Report
SENATE
1st Session } { 114-37
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AMENDING 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
_______
May 11, 2015.--Ordered to be printed
_______
Mr. Barrasso, from the Committee on Indian Affairs,
submitted the following
R E P O R T
[To accompany S. 184]
The Committee on Indian Affairs, to which was referred the
bill (S. 184) 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, reports
favorably thereon without amendment and recommends that the
bill do pass.
Purpose
The purposes of S. 184 are to amend the Indian Child
Protection and Family Violence Prevention Act of 1990 to
require background checks before foster care placements are
ordered in tribal court proceedings, and for other purposes. S.
184 is intended to create more consistency and accountability
by improving criteria for Indian children living and being
placed in foster homes and institutions.
Background
Brief summary of child protection on Indian reservations
The failure to protect children has a damaging impact on
the quality of life on Indian reservations.\1\ Native youth are
2.5 times more likely to be victims of abuse or neglect than
youth of other ethnicities.\2\ Children exposed to violence are
more likely to abuse drugs and alcohol and suffer from
depression, anxiety, and post-traumatic disorders. These issues
may compound or lead to failures or difficulties in school and
delinquent or criminal behavior.
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\1\A more comprehensive overview of child protection in Indian
country may be found in previous Committee Reports accompanying prior
legislation on this issue. See S. Rep. No. 110-45 (2007); S. Rep. No.
108--228 (2004).
\2\U.S. Attorney General's Advisory Committee on American Indian
and Alaska Native Children Exposed to Violence: Ending Violence So
Children Can Thrive (Nov. 2014), available at
http://www.justice.gov/sites/default/files/defendingchildhood/pages/
attachments/2014/11/18/finalaianreport.pdf.
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As a general matter, the responsibility for investigating
and addressing child protection matters may involve multiple
agencies, including the tribal, state, or Federal governments.
In some cases, these agencies may handle both or portions of
the investigations of neglect or abuse and ensuing placements
of the children.
Jurisdictional and resource issues may arise in the child
protection cases. Intergovernmental agreements may help
facilitate the investigations or placements. However, these
types of agreements are not in place for all Indian
communities.
One key systemic challenge is ensuring that the child or
children are not subjected to any more risk or trauma
throughout the duration of the investigation or placement.
Various laws have been enacted and intended to reduce further
trauma to children and prevent gaps in addressing child
protection matters. The Indian Child Protection and Family
Violence Prevention Act of 1990 was one such measure.
History of the Indian Child Protection and Family Violence Prevention
Act of 1990
The Indian Child Protection and Family Violence Prevention
Act of 1990 continues the historical and special relationship
between the Federal government and Indian people based on the
United States direct interest, as trustee, in protecting Indian
children.\3\ The purpose of the law is to treat and prevent
incidents of family violence and to authorize other actions
necessary to ensure effective child protection on Indian
reservations.
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\3\25 U.S.C. Sec. 3201 (1990).
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President George H.W. Bush signed the Indian Child
Protection and Family Violence Prevention Act of 1990 into law
on November 28, 1990.\4\ The law was a response to the Senate
Select Committee on Indian Affairs and the Special Committee on
Investigations' findings regarding the increasing numbers of
Federal prosecutions for child abuse on reservations and
incidents of family violence.\5\
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\4\Indian Child Protection and Family Violence Prevention Act, Pub.
L. No. 101-630, Sec. 401, 104 Stat. 4544 (1990).
\5\S. Rep. No. 104-53, at 1 (1995).
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The Committees' findings indicated that child abuse was a
problem on Indian reservations.\6\ Among the more troubling
findings was that there had been multiple incidents of sexual
abuse of children on Indian reservations committed by persons
employed or funded by the Federal government. The Committees
found that background investigations of Federal employees who
care for, or teach, Indian children were often deficient.
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\6\S. Rep. No. 104-53, at 1-2 (1995).
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Moreover, this investigation revealed that the grossly
underreported incidents of child abuse on Indian reservations
resulted from the lack of a mandatory Federal reporting law. It
found that the funds to meet the growing needs for mental
health treatment and counseling for victims of child abuse or
family violence and the victims' families were inadequate.
Among the more notable goals of the Indian Child Protection
and Family Violence Prevention Act of 1990 were the
requirements of appropriate reporting and prevention of the
abuse of Indian children.\7\ As part of the prevention efforts,
the Act required the Secretaries of the Interior and Health and
Human Services to conduct a character investigation of each
individual employed, or being considered for employment, by the
respective Secretary.\8\
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\7\Indian Child Protection and Family Violence Prevention Act, Pub.
L. No. 101-630, Sec. 411, 104 Stat. 4544 (1990).
\8\Indian Child Protection and Family Violence Prevention Act, Pub.
L. No. 101-630, Sec. 408, 104 Stat. 4551 (1990).
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While the reach of this Act governed character
investigations of Federal employees, over time, the requirement
of such reviews to other individuals with specific and
significant contact with children, such as foster parents or
other adults in a foster home, was not consistently applied.
Without a thorough review of all adults in the placement home,
there cannot be full assurances that the child would not be
placed at risk.\9\
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\9\There is concern that children were placed with individuals who
did not have the appropriate safety checks, i.e., criminal background
checks for all adults residing in the home or institution. U.S. Dep't
of Health & Human Services, Admin. for Children & Families, Executive
Summary: Spirit Lake Tribal Social Services Report 4 (2014).
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Currently, the Act does not set forth standard minimum
guidelines for foster care placements under the direction of a
tribal court. The bill, S. 184, would establish these certain
minimum guidelines and promote more consistency in tribal
placements and reduce security gaps to ensure the safety of
children.
Legislative History
The bill, S. 184, was introduced on January 16, 2015, by
Senators Hoeven and Tester. Senator Heitkamp is also a co-
sponsor to the bill. This bill, S. 184, was referred to the
Committee on Indian Affairs. No hearing was held on this bill
this Congress. On February 4, 2015, the Committee met at a
business meeting to consider the bill. No amendments were
offered, and the Committee ordered the bill to be reported
favorably to the full Senate by voice vote.
On February 27, 2015, Representative Cramer introduced H.R.
1168, the House companion bill to S. 184. The bill, H.R. 1168,
was referred to the Subcommittee on Indians, Insular and
Alaskan Native Affairs, where the bill was considered during a
mark-up session. H.R. 1168 was ordered to be reported by
unanimous consent on March 25, 2015.
In the 113th Congress, Senator Hoeven introduced a similar
bill, S. 2160, co-sponsored by Senators Barrasso, Tester,
Heitkamp, and Begich. The Committee held a hearing on S. 2160
on April 2, 2014. The Administration testified in support of
the principles of the bill, but recommended changes. After
significant discussions with the Bureau of Indian Affairs,
tribes, and the National Indian Child Welfare Association, the
bill was revised accordingly as a substitute amendment for
Senate consideration. The current bill, S. 184, includes the
changes incorporated in the substitute amendment for S. 2160.
Representative Cramer introduced H.R. 4534, the House of
Representatives companion bill, in the 113th Congress. The
House Committee on Natural Resources Subcommittee on Indian and
Alaska Native Affairs held a hearing on H.R. 4534 on July 29,
2014. The House Committee on Natural Resources considered the
bill and ordered it reported on September 18, 2014. The bill
was placed on the Union calendar on December 22, 2014, but no
further action was taken.
Section-by-Section Analysis
Section 1--Short title
This section states that the short title of the bill is the
``Native American Children's Safety Act''.
Section 2--Criminal records checks
This section amends Section 408 of the Indian Child
Protection and Family Violence Prevention Act (25 U.S.C. 3207)
by adding subsection ``(d) By Tribal Social Services Agency for
Foster Care Placements in Tribal Court Proceedings.--'' which
includes five paragraphs.
Paragraph 1--Definitions
This paragraph sets forth definitions of:
``Covered individual'' means anyone over the age of 18
years of age or older and any individual who the tribal social
services agency determines is subject to a criminal records
check.
``Foster care placement'' means any action removing an
Indian child from a parent or Indian custodian for temporary
placement in a foster home.
``Indian custodian'' means any Indian who has legal custody
of an Indian child, or to whom physical custody has been
transferred to by the parent of the child.
``Parent'' means any biological parent of an Indian child,
or any Indian who has lawfully adopted an Indian child.
``Tribal court'' means a court with jurisdiction over
foster care placement that is established under the code or
custom of an Indian tribe.
``Tribal social services agency'' means the agency of an
Indian tribe that has the primary responsibility for carrying
out foster care licensing or approval.
Paragraph 2--Criminal records check before foster care placement
This paragraph mandates that before any foster care
placement is approved, and any foster care license is issued,
the tribal social service agency must complete a criminal
records check of every covered individual who lives in the
prospective foster care home. A performance of a criminal
records check can include a fingerprint-based check of national
crime information databases, any child abuse registries
maintained by the Indian tribe, and any child abuse and neglect
registry maintained by any state in which the covered
individual resided in the preceding five years. This paragraph
also mandates that an Indian tribe may include additional
requirements as they determine necessary and permissible within
their existing authority.
Paragraph 3--Emergency placement
This paragraph makes clear that Paragraph (2) does not
apply to emergency foster care placements, as determined by a
tribal social services agency.
Paragraph 4--Recertification of foster care or institutions
This paragraph states that not later than two years after
enactment, each Indian tribe must establish procedures to re-
certify homes in which foster care placements are made. The
minimum requirements for the procedures must include a period
recertification that ensures the safety of the home for the
Indian child and covered individuals subject to a criminal
records check. Covered individuals who moved into the foster
home after the foster care license was issued will also be
subject to a criminal records check.
Paragraph 5--Guidance
This paragraph states that not later than two years after
enactment, the Secretary of the Interior, after consultation
with tribes, shall issue guidance in four areas. First,
procedures for criminal records check of covered individuals
who reside in a foster care home after the foster care
placement was made. Second, self-reporting requirements for
foster care homes if the head of the household has knowledge of
a covered individual living in the home has a criminal record.
Third, practices used by Indian tribes to address emergency
foster care placements. Fourth and last, procedure for
certifying compliance with the bill.
Cost and Budgetary Considerations
The following cost estimate, as provided by the
Congressional Budget Office, dated February 9, 2015, was
prepared for S. 184.
February 9, 2015.
Hon. John Barrasso,
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. 184, the Native
American Children's Safety Act.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Martin von
Gnechten.
Sincerely,
Douglas W. Elmendorf.
Enclosure.
S. 184--The Native American Children's Safety Act
S. 184 would expand the background check requirements for
people who hold tribal positions related to the foster care of
Native American children. The bill would require tribal social
services agencies to complete criminal records checks of each
individual who resides in or is employed by a foster care
institution that serves Native American children. Under current
law, those checks are required only if the tribal agency
receives federal funds. S. 184 also would require tribal
agencies to develop procedures to recertify the safety of
foster care institutions. Under the bill, the Secretary of the
Interior would promulgate guidance to tribes regarding
procedures to conduct criminal records checks and to certify
foster care institutions.
Based on information provided by the Bureau of Indian
Affairs, CBO estimates that implementing the legislation would
have no significant effect on the federal budget. CBO estimates
that promulgating the procedural guidance required by the
legislation would cost less than $500,000 over the 2015-2020
period, and would be subject to the availability of
appropriated funds. Enacting S. 184 would not affect direct
spending or revenues; therefore, pay-as-you-go procedures do
not apply.
S. 184 would impose an intergovernmental mandate, as
defined in the Unfunded Mandates Reform Act (UMRA) because it
would require tribal social services agencies to complete
criminal records checks and to recertify existing foster homes
and institutions periodically. The bill also would impose
private-sector mandates by requiring individuals to submit to
criminal records checks and requiring foster care homes and
institutions to comply with recertification procedures.
Tribes could incur costs associated with paying background
check fees to federal and state governments as well as
administrative costs for processing background check
applications and recertifying existing foster care homes.
However, because many tribal social services agencies are
required to conduct criminal records checks as a condition of
receiving federal foster care payments and other federal
assistance from the Bureau of Indian Affairs, we estimate that
the costs of the mandates to tribal governments would fall well
below the annual threshold established in UMRA ($77 million in
2015, adjusted annually for inflation).
Individuals and entities in the private-sector could also
incur costs associated with the requirement to submit to a
background check or comply with recertification procedures.
However, many institutions and foster care providers already
meet requirements that are similar to those in the bill.
Further, according to agency officials and professionals in the
field, most tribal social services agencies would probably
absorb the cost of conducting the check of criminal records to
avoid imposing a burden on potential foster parents. Therefore,
CBO estimates that the incremental cost to the private sector
of complying with the mandates in the bill would fall well
below the annual threshold established in UMRA ($154 million in
2015, adjusted annually for inflation).
The CBO staff contacts for this estimate are Martin von
Gnechten (for federal costs), J'nell Blanco Suchy (for state
and local effects), and Amy Petz (for private-sector effects).
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for 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. 184 will
have a minimal impact on regulatory or paperwork requirements.
Executive Communications
The Committee has received no communications from the
Executive Branch regarding S. 184.
Changes in Existing Law
In accordance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 184, as ordered reported, are shown as follows (new matter
is printed in italic):
25 U.S.C. Sec. 3207 (Indian Child Protection and Family Violence
Prevention Act)
Sec. 3207. Character Investigations
* * *
(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 the tribal
social services agency determines is
subject to a criminal records check
under paragraph (2)(A).
(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)(I) parental rights have not been
terminated; or
(II) parental rights have been
terminated but the child has not been
permanently placed.
(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 an
Indian 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 an Indian tribe that has the primary
responsibility for carrying out foster care
licensing or approval (as of the date on which
the proceeding described in paragraph (2)(A)
commences) for the Indian tribe.
(2) Criminal records check before foster care
placement.--
(A) In general.--Except as provided in
paragraph (3), no foster care placement shall
be finally approved and no foster care license
shall be issued 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);
(II) check any abuse
registries maintained by the
Indian tribe; and
(III) check any child abuse
and neglect registry maintained
by the State 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 and permissible within the
existing authority of the Indian tribe,
such as the creation of voluntary
agreements with State entities in order
to facilitate the sharing of
information related to the performance
of criminal records checks.
(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)).
(3) Emergency placement.--Paragraph (2) shall not
apply to an emergency foster care placement, as
determined by a tribal social services agency.
(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 or guidance
issued by the Secretary that is in accordance
with the purpose of this subsection.
(5) Guidance.--Not later than 2 years after the date
of enactment of this subsection and after consultation
with Indian tribes, the Secretary shall issue 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 clause (II) or (III) of
paragraph (2)(B)(i);
(C) promising practices used by Indian tribes
to address emergency foster care placement
procedures under paragraph (3); and
(D) procedures for certifying compliance with
this Act.
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