[Congressional Record Volume 145, Number 112 (Tuesday, August 3, 1999)]
[Senate]
[Pages S10120-S10121]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DASCHLE (for himself, Mr. McCain and Mr. Inouye):
  S. 1478. A bill to amend part E of title IV of the Social Security 
Act to provide equitable access for foster care and adoption services 
for Indian children in tribal areas; to the Committee on Finance.


    Improving Foster Care and Adoption Services for Native American 
                                Children

  Mr. DASCHLE. Mr. President, today I am introducing, along with 
Senator McCain and Senator Inouye, an important bill to correct an 
inequity in the law affecting many Native American children. Every 
year, for a variety of often tragic reasons, thousands of children 
across the country are placed in foster care. To assist with the cost 
of food, shelter, clothing, daily supervision and school supplies, 
foster parents of children who have come to them through state agency 
placements receive money through Title IV-E of the Social Security Act. 
Additionally, States receive funds for administrative training and data 
collection to support this program. Unfortunately, because of a 
legislative oversight, many income-eligible Native American children 
placed in foster care by tribal agencies do not receive foster care and 
adoptive services to which all other income-eligible children are 
entitled.
  Not only are otherwise eligible Native children denied foster care 
maintenance payments, but this inequity also extends to children 
adopted through tribal placements. Currently, the IV-E program offers 
sporadic assistance for expenses associated with adoption and no 
assistance for training professional staff or parents involved in the 
adoption absent a tribal-state agreement.
  In many instances, these children face insurmountable odds. Many come 
from abusive homes. Foster parents who open their doors to care for 
these special children deserve our help. These generous people who are 
willing to take these children into their homes shouldn't have 
sleepless nights worrying about whether they have the resources to 
provide nourishing food or a warm coat, or even adequate shelter for 
these children. This legislation will go a long way to ease their 
concerns.
  Currently, some tribes and states have entered into IV-E agreements, 
but these arrangements are the exception. They also, by and large, do 
not include funds to train tribal social workers and other program 
administrators. This bill would authorize tribes to operate IV-E 
programs in the same manner as states. Upon approval of a tribal plan 
by HHS, the tribe would be able to provide services to income-eligible 
children under its custody. The bill would also allow children in 
tribal custody to receive foster care payments where a tribe chooses 
not to operate the entire program if adequate arrangements are made 
between the tribe and the state for provision of child welfare services 
and protections required by Title IV-E.
  The bill we are introducing today would:
  Authorize reimbursement of Title IV-E entitlement programs for tribal 
placements in foster and adoptive homes;
  Authorize tribal governments to receive direct funding from the 
Department of Health and Human Services for training and administration 
of IV-E programs (tribes must have HHS-approved programs);
  Allow the Secretary flexibility to modify the requirements of the IV-
E law for tribes if those requirements are not in the best interest of 
Native children and if the tribal plans include alternative provisions 
that would achieve the purpose of the requirement that is altered or 
waived; and
  Allow continuation of tribal-state IV-E agreements.
  In a 1994 report, HHS found that the best way to serve this 
underfunded group is to provide direct assistance to tribal governments 
and qualified tribal families. This bill would not reduce the 
entitlement funding for states, as they would continue to be reimbursed 
for their expenses under the law. I strongly believe Congress should 
address this oversight and provide equitable benefits to Native 
American children under the jurisdiction of their tribal governments, 
and I hope my colleagues will join me in supporting this bill.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1478

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. AUTHORITY OF INDIAN TRIBES TO RECEIVE FEDERAL 
                   FUNDS FOR FOSTER CARE AND ADOPTION ASSISTANCE.

       (a) Children Placed in Tribal Custody Eligible for Foster 
     Care Funding.--Section 472(a)(2) of the Social Security Act 
     (42 U.S.C. 672(a)(2)) is amended--
       (1) by striking ``or (B)'' and inserting ``(B)''; and
       (2) by inserting before the semicolon the following: ``, or 
     (C) an Indian tribe as defined in section 479B(b)(5), in the 
     case of an Indian child (as defined in section 4(4) of the 
     Indian Child Welfare Act of 1978 (25 U.S.C. 1903(4))) if the 
     tribe is not operating a program pursuant to section 479B and 
     (i) has an agreement with a State pursuant to section 
     479B(b)(3) or (ii) submits to the Secretary a description of 
     the arrangements, jointly developed or in consultation with 
     the State, made for the payment of funds and the provision of 
     the child welfare services and protections required by this 
     title''.
       (b) Programs Operated By Indian Tribal Organizations.--Part 
     E of title IV of the Social Security Act (42 U.S.C. 670 et 
     seq.) is amended by adding at the end the following:


           ``PROGRAMS OPERATED BY INDIAN TRIBAL ORGANIZATIONS

       ``Sec. 479B. (a) Except as provided in subsection (b), this 
     part shall apply to an Indian Tribe that chooses to operate a 
     program under this part in the same manner as this part 
     applies to a State.
       ``(b)(1) In the case of an Indian tribe submitting a plan 
     for approval under section 471, the plan shall--
       ``(A) in lieu of the requirement of section 471(a)(3), 
     identify the service area or areas and population to be 
     served by the Indian tribe; and
       ``(B) in lieu of the requirement of section 471(a)(10), 
     provide for the approval of foster homes pursuant to tribal 
     standards and in a manner that ensures the safety of, and 
     accountability for, children placed in foster care.
       ``(2)(A)(i) For purposes of determining the Federal medical 
     assistance percentage applicable to an Indian tribe under 
     paragraphs (1) and (2) of section 474(a), the calculation of 
     an Indian tribe's per capita income shall be based upon the 
     service population of the Indian tribe as defined in its 
     plan.
       ``(ii) An Indian tribe may submit to the Secretary such 
     information as the tribe considers may be relevant to making 
     the calculation of the per capita income of the tribe, and 
     the Secretary shall consider such information before making 
     the calculation.
       ``(B) The Secretary shall, by regulation, determine the 
     proportions to be paid to Indian tribes pursuant to section 
     474(a)(3), except that in no case shall an Indian tribe 
     receive a lesser proportion than specified for States in that 
     section.
       ``(C) An Indian tribe may use Federal or State funds to 
     match payments for which the Indian tribe is eligible under 
     section 474.
       ``(3) An Indian tribe and a State may enter into a 
     cooperative agreement for the administration or payment of 
     funds pursuant to

[[Page S10121]]

     this part. Any such agreement that is in effect as of the 
     date of the enactment of this section shall remain in full 
     force and effect subject to the right of either party to 
     revoke or modify the agreement pursuant to its terms.
       ``(4) The Secretary may prescribe regulations that alter or 
     waive any requirement under this part with respect to an 
     Indian tribe or tribes if the Secretary, after consulting 
     with the tribe or tribes--
       ``(A) determines that the strict enforcement of the 
     requirement would not advance the best interests and the 
     safety of children served by the Indian tribe or tribes; and
       ``(B) provides in the regulations that tribal plans include 
     alternative provisions that would achieve the purposes of the 
     requirement that is to be altered or waived.
       ``(5) For purposes of this section, the term `Indian tribe' 
     means any Indian tribe, band, nation, or organized group or 
     community of Indians, including any Alaska Native village, 
     that is recognized as eligible for the special programs and 
     services provided by the United States to Indians because of 
     their status as Indians.
       ``(6) Nothing in this section shall preclude the 
     development and submission of a single plan under section 471 
     that meets the requirements of this section by the 
     participating Indian tribes of an intertribal consortium.''.
       (c) Effective Date.--The amendments made by this Act take 
     effect on the date of enactment of this Act.

  Mr. McCAIN. Mr. President, I am pleased to co-sponsor legislation 
with my colleagues, Senators Daschle and Inouye, to amend the Social 
Security Act and extend eligibility for Indian tribes to fully 
implement, like states, the Title IV-E Foster Care and Adoption 
Assistance Act. This important legislation will finally allow Indian 
children living in tribal areas to have the same access to services of 
the Title IV-E Foster Care and Adoption Assistance Program enjoyed by 
other children nationwide.
  The purpose of the Title IV-E program is to ensure that children 
receive adequate care when placed in foster care and adoption programs. 
The Title IV-E program operates as an open-ended entitlement program 
for eligible state governments with approved plans. State governments 
receive funding for foster care maintenance payments to cover food, 
shelter, clothing, school supplies, and liability insurance for income-
eligible children placed in foster homes by state courts, and for 
related administrative and training costs.
  While Congress intended that the Title IV-E program should benefit 
all eligible children, Indian children who are under the jurisdiction 
of their tribal court are not eligible. When enacted, the Title IV-E 
law did not properly consider that Indian tribal governments retain 
sole jurisdiction over the domestic affairs of their own tribal 
members, particularly Indian children.
  State administrators have attempted to meet the intended goals of 
these programs by extending their efforts to Indian country. However, 
administrative and jurisdictional hurdles make it nearly impossible to 
provide these services. As a result, Indian children in need of foster 
care and child support are not accorded the same level of service as 
other children nationwide. Tribal governments, who are legally 
responsible for Indian children in foster care, are not entitled to 
federal reimbursement for children placed in foster care by a tribal 
court, unless the tribe, as a public agency, enters into a cooperative 
agreement with the state.
  A cooperative agreement may not sound all that difficult, but in 
reality, such an agreement can prove impossible. Rather than providing 
incentives, current law more often discourages states from entering 
into agreements with tribes. For example, a state is accountable for 
tribal compliance with Title IV-E requirements. If a tribe cannot 
fulfill a matching requirement, the state must assume the costs on 
behalf of the tribe in order to retain federal funds. It is entirely 
possible that states could lose their Title IV-E funds if tribal 
records were out of compliance.
  State-tribal relations are not always productive, particularly when 
disputes arise over issues unrelated to child welfare. Providing this 
direct eligibility for tribal governments, with the same accountability 
and enforcement requirements, will resolve such problems. State 
agencies have indicated that direct participation by the tribes would 
help address an overburden of casework and preclude tension over 
jurisdictional issues.
  I want to make clear that enactment of this legislation will in no 
way supplant or discourage State-tribal agreements. Existing agreements 
will be honored, while allowing Indian tribes to directly access needed 
resources for further protection for income-eligible Indian children.
  I also want to comment briefly on efforts made by the Administration 
to implement a limited pilot program to provide direct authority to 
tribes to administer the Title IV-E and Title IV-B programs. The 1997 
Adoption and Safe Families Act authorized up to ten demonstration 
programs. Five demonstration programs have been approved by the 
Administration to meet the needs of Indian children. I applaud the 
initiative, but this limited approval will not extend to any other 
tribe who may choose to administer their own programs and the needs of 
many Indian children will still be unmet. I sincerely hope the 
Administration would seek to include five more tribes as participants 
in the demonstration program.
  We sought to include similar eligibility provisions in the 1996 
Personal Responsibility and Work Opportunity Act, but were unsuccessful 
in finding the necessary off-sets to pay for this program.
  The Congressional Budget Office (CBO) estimates that this legislation 
would cost $236 million over a five-year period, which generally 
amounts to less than one percent of total Federal Title IV-E 
expenditures. While this legislation does not currently include any 
identified off-sets to pay for adding tribal eligibility for this 
entitlement program, I have assurances from Senators Daschle and Inouye 
that the inclusion of off-sets, prior to final passage, will in no way 
affect the Social Security Trust Fund or increase the federal debt. We 
have pledged to work together to find necessary and agreeable off-sets 
for this program.
  Mr. President, enactment of this legislation will bring an end to the 
disparate treatment of eligible Indian children under Title IV-E 
programs. I urge my colleagues to correct this unfair oversight and 
make the benefits of the Title IV-E entitlement program available for 
all children as intended.
                                 ______