[Congressional Record Volume 143, Number 160 (Thursday, November 13, 1997)]
[Senate]
[Pages S12564-S12565]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                    TRIBAL FOSTER CARE AND ADOPTION

  Mr. DASCHLE. Mr. President, I would like to bring to the attention of 
the Senate an issue which, I believe, needs to be addressed. Title IV-E 
of the Social Security Act, Federal payments for foster care and 
adoption assistance, does not provide equitable foster care and 
adoption services for Indian children living in tribal areas. I had 
hoped we might be able to amend this bill, which is designed to better 
serve children in need of permanent, loving homes, to include children 
living in tribal areas. However, it appears that we will be unable to 
do that at this time. Nonetheless, it is clear that the funding that 
provides services to Indian children is sufficient to address the 
compelling needs of children not equivalent to that provided for 
services to children not living on reservations, and for that reason, I 
would like to engage in a discussion about how we might address this 
issue.
  Mr. ROCKEFELLER. Mr. President, I am happy to engage in a colloquy 
with the Democratic leader. Can the leader tell me what constitutes the 
primary impediment to Indian children and tribal government access to 
the Federal foster care program and Federal adoption assistance 
program?
  Mr. DASCHLE. Mr. President, the flaw in the statute is that it 
provides IV-E assistance only to children placed by State courts or 
agencies with whom States have agreements. In doing so, the law has 
left out Indian children living in tribal areas who are placed in 
foster care and adoptive homes by tribal courts. A relatively small 
number of tribes--50, or 10 percent of the total number of federally 
recognized tribes--has been able to work out tribal/State agreements 
whereby foster care payments are made for children placed by tribal 
courts. These agreements do not provide the full services of the title 
IV-E program, as they by and large do not include training and 
administrative funding for tribal governments. A major impediment to 
reaching even these less-than-ideal tribal/State agreements is that 
State governments retain liability under the agreements, something that 
States are reluctant to do.
  The result is that Indian children--often the poorest of the poor in 
our Nation--are sometimes placed in unsubsidized homes without 
necessary foster care services. This should not be the case. Other 
children in this Nation who meet the eligibility requirements are 
eligible for the services of the open-ended Foster Care and Adoption 
Assistance Entitlement Program. State governments have benefited from 
large amounts of Federal administrative and training funds for their 
foster care/adoption assistance programs. Tribal governments and Indian 
children have not.
  The legislation being considered today is designed to improve 
services and encourage permanent placements for children. Indian 
children living in tribal areas, however, have not benefited to the 
same extent as other children under the current program, and we should 
ensure that that discrepancy is eliminated.
  The IV-E program provides help to fund the basics, such as food, 
shelter, clothing, and school supplies for the children, but this 
program does not include Indian children. We need to get our priorities 
in order, and help all children, especially those with special needs, 
including Indian children. I understand the primary reason for not 
including an amendment to make Indian children in tribal areas and 
tribal government eligible for the IV-E program is that no offset was 
provided for the cost.
  Mr. ROCKEFELLER. Mr. President, the Senator is correct. 
Unfortunately, there are many provisions and new investments that 
Members wanted to include. But we are running out of time in this 
session, and securing new funding and appropriate revenue offsets is an 
overwhelming challenge. I appreciate the concerns the Senator has 
raised and would like to work with him in the future. As my colleagues 
know, Indian children are covered under a special law, known as the 
Indian Child Welfare Act. We should work together to ensure that this 
law and other Federal programs for abused and neglected children are 
better coordinated.

  Let me assure my colleagues, though, that this package will help 
Indian children. Within the Promotion of Adoption, Safety, and Support 
for Abused and Neglected Children, the PASS Act, is a provision to 
extend the 1993 law to provide funding for family preservation and 
family support for 3 additional years. This program is designed to 
support community-based programs to help innovative projects invest in 
prevention and programs to strengthen families. Within the existing law 
is a 1-percent set aside for the tribes. This will be extended 3 more 
years, and I hope this funding will enable the tribes to continue 
ongoing efforts to help Indian children.
  Mr. INOUYE. Mr. President, I, too, want to express my strong interest 
in amending the title IV-E statute so that Indian children placed by 
tribal courts have access to this program on the same basis as other 
children and that tribal governments with approved programs be made 
eligible for IV-E administrative and training funds on the same basis 
as States. Senator Campbell and I jointly wrote the Finance Committee 
on this matter.
  I would point out that the Senate Committee on Indian Affairs, in 
April 1995, held a hearing on welfare reform proposals. At that 
hearing, a representative of the Department of Health and Human 
Services, Office of the Inspector General, testified with regard to its 
August 1994 report: ``Opportunities for Administration on Children and 
Families to Improve Child Welfare Services and Protections for Native 
American Children,'' which documented that tribes receive little 
benefit or funding from the title IV-E Foster Care and Adoption 
Assistance Program--and other Social Security Act programs. The OIG 
report states: ``The surest way to guarantee that Indian people receive 
benefits from these Social Security Act programs is to * * * provide 
direct allocations to tribes.'' The OIG report also noted that the 
State officials with whom they talked preferred direct IV-E funding to 
tribes:

       With respect to IV-E funding, most State officials with 
     whom we talked favored ACF (Administration on Children and 
     Families) dealing directly with Tribes. This direct approach 
     for title IV-E would eliminate the need for Tribal-State 
     agreement, and because title IV-E is an uncapped Federal 
     entitlement, would not affect the moneys available to the 
     States. (p. 13)

  Mr. McCAIN. Mr. President, I share the concerns expressed by my 
colleagues about basic fairness. Last year during consideration of 
welfare reform, I advocated that we use that bill as a vehicle to fix 
the title IV-E law with regard to tribes and Indian children in tribal 
areas. Under the current law, states cannot even administer a Temporary 
Assistance for Needy Families [TANF] program unless they have in place 
a foster care/adoption assistance program. I appreciate the efforts of 
Representatives Hayworth and McDermott in trying to fix this problem 
during the Ways and Means Committee consideration of its adoption

[[Page S12565]]

bill, H.R. 867, and also of former Representative Bill Richardson who 
early this year introduced a freestanding bill on this issue. It seems 
that we keep running into the issue of funding. This is, however, a 
clear-cut case of fairness, and we must work together to provide 
equitable assistance to Indian children.
  Mr. CHAFEE. Mr. President, I certainly appreciate the perspective my 
colleagues bring to this issue. Clearly, we need to take into account 
the status of tribes and tribal court system and the children under 
their jurisdiction in determining IV-E payments. I will work with them 
to correct this inequity.
  Mr. DORGAN. I would like to add my voice to those of my colleagues 
who share my belief that it is fundamentally unfair for Indian children 
placed by tribal courts to be ineligible for IV-E assistance even 
though these children otherwise meet the eligibility requirements. In 
my judgment, we have a responsibility, both because of the Federal 
Government's trust relationship with Indian tribes and because of the 
desperate need that exists in Indian country for this funding, to 
correct this oversight as quickly as possible.
  Mr. DASCHLE. Mr. President, I thank all of my colleagues for joining 
me in this discussion and for their acknowledgment that this is an 
injustice that must be corrected. I look forward to working with them 
to make sure we provide the same resources for Indian children as we do 
for other children in this country.

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