[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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