[Senate Report 114-37]
[From the U.S. Government Publishing Office]


                                                        Calendar No. 77
                                                        
114th Congress           }                     {            Report
                                 SENATE
 1st Session            }                     {            114-37
======================================================================
 
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.

                                  [all]