Report text available as:

(PDF provides a complete and accurate display of this text.) Tip?



114th Congress    }                                      {       Report
                        HOUSE OF REPRESENTATIVES
 1st Session      }                                      {       114-79

======================================================================



 
                 NATIVE AMERICAN CHILDREN'S SAFETY ACT

                                _______
                                

 April 15, 2015.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Bishop of Utah, from the Committee on Natural Resources, submitted 
                             the following

                              R E P O R T

                        [To accompany H.R. 1168]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Natural Resources, to whom was referred 
the bill (H.R. 1168) 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 without amendment and recommend 
that the bill do pass.

                          Purpose of the Bill

    The purpose of H.R. 1168 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

    H.R. 1168 amends current law to require tribal social 
service agencies to perform character background investigations 
of all foster care parents and adults living in foster care 
homes, prior to placement of an Indian child into a foster 
home. Placement is disallowed if the background check reveals a 
federal, state, or tribal crime of child neglect or abuse.
    The need for the bill was highlighted in a June 24, 2014, 
hearing held by the Subcommittee on Indian and Alaska Native 
Affairs,\1\ to determine the state of child protection and 
safety on the Spirit Lake Reservation in North Dakota. The 
hearing was requested by Congressman Kevin Cramer (R-ND) 
following numerous reports by the media and tribal members that 
over several years, incidents of child abuse, neglect, and 
death in the Reservation were at epidemic levels.\2\ It was 
revealed that the tribe had been placing children under its 
jurisdiction in unlicensed foster homes where sex offenders 
were known to reside.
---------------------------------------------------------------------------
    \1\Child Protection and the Justice System on the Spirit Lake 
Indian Reservation: Hearing before Subcommittee on Indian and Alaska 
Native Affairs of the House. Natural Resources Committee, 113th 
Congress (2013).
    \2\In 2013, the local ABC affiliate for Grand Forks, North Dakota 
reported the U.S. Marshals verified there were 41 registered sex 
offenders on the reservation out of approximately 6,200 residents. In 
comparison, the Sex Offender web site for the State of North Dakota 
indicates that nearby Grand Forks currently has 19 registered sex 
offenders out of a population of 53,000.
---------------------------------------------------------------------------
    Testimony was obtained from the Director of the Bureau of 
Indian Affairs (BIA), the chairman of the Spirit Lake Tribe, a 
former tribal judge, a witness from the Administration for 
Children and Families (Department of Health and Human 
Services), and a witness from the Casey Foundation, which works 
with tribes to improve child welfare services. It was learned 
that despite a BIA finding that the tribe's administration of a 
BIA social services program through a Public Law 93-638 
contract had been posing an ``imminent danger'' to the health 
and safety of certain Indian children on Spirit Lake, the tribe 
was allowed to continue operating the program for an additional 
five months before relinquishing control to the BIA.
    While the BIA assumed control over the Public Law 93-638 
contract, the tribe nonetheless retained certain powers over 
the placement of Indian children in foster homes. In the 
hearing, the BIA witness acknowledged the possibility that the 
contract for federally-funded child social services could 
eventually be restored to the tribe.
    One of the Indian child safety problems identified at the 
Subcommittee hearing is the lack of a federal requirement for a 
tribe or tribal agency to conduct background checks on 
individuals in foster homes to which the tribe may order the 
placement of Indian children. To address this shortcoming, in 
the 113th Congress Congressman Cramer introduced H.R. 4534 to 
require a tribe to conduct background checks on individuals who 
reside in or are employed by foster homes where an Indian child 
may be placed by a tribe through a tribal foster placement 
proceeding. H.R. 4534 was reported by the Natural Resources 
Committee by unanimous consent during the last few days of the 
Congress (House Report 113-699). This measure has been 
reintroduced with technical changes in the 114th Congress as 
H.R. 1168.
    H.R. 1168 amends section 408 of the Indian Child Protection 
and Family Violence Prevention Act (25 U.S.C. 3207) to prohibit 
the ordering of a foster placement of an Indian child until a 
tribe, within 14 days of the foster care proceeding, completes 
a background investigation of a covered individual who resides 
in or is employed by the foster home or institution in which 
the foster placement will be made. No foster placement may be 
ordered by the tribe if the background investigation shows that 
a covered individual has been convicted by a federal, state, or 
tribal court or has 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)). Such crimes include but are not limited 
to felony child abuse or neglect and felony physical assault.
    The bill also provides that in an instance where an 
``emergency placement'' of an Indian child is necessary, a 
background check may not be required, as determined by the 
tribal social services agency.
    H.R. 1168 further requires a tribe, within 24 months of 
enactment of the bill, to establish procedures to recertify the 
safety of foster homes where a tribe may place an Indian child. 
The Secretary of the Interior is to issue guidance within two 
years of enactment (and after tribal consultation) concerning 
the implementation of background check procedures and self-
reporting requirements for foster homes.

                            Committee Action

    H.R. 1168 was introduced on February 27, 2015, 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, Insular and Alaska Native Affairs. On 
March 24, 2015, the Natural Resources Committee met to consider 
the bill. The Subcommittee on Indian, Insular and Alaska Native 
Affairs was discharged by unanimous consent. No amendments were 
offered and the bill was ordered favorably reported to the 
House of Representatives by unanimous consent on March 25, 
2015.

            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 
received the following cost estimate for this bill from the 
Director of the Congressional Budget Office:

H.R. 1168--Native American Children's Safety Act

    H.R. 1168 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. H.R. 1168 also would require tribal 
agencies to develop procedures to certify the safety of foster 
care institutions. Under the bill, the Secretary of the 
Interior would promulgate guidance to tribes regarding 
procedures for conducting criminal records checks and 
certifying the safety of foster care institutions.
    Based on information provided by the Bureau of Indian 
Affairs (BIA), 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 H.R. 1168 would not affect direct 
spending or revenues; therefore, pay-as-you-go procedures do 
not apply.
    H.R. 1168 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 fees to 
federal and state governments for background checks 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 BIA, CBO estimates 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 also could 
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 costs 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).
    On February 9, 2015, CBO transmitted a cost estimate for S. 
184, the Native American Children's Safety Act, as ordered 
reported by the Senate Committee on Indian Affairs on February 
4, 2015. The two bills are similar, and the CBO cost estimates 
are the same.
    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.
    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. According to the 
Congressional Budget Office, implementing the bill would have 
no significant effect on the federal budget.
    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 as defined in 
Public Law 104-4.

                       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. 401. SHORT TITLE.

  This title may be cited as the ``Indian Child Protection and 
Family Violence Prevention Act''.

           *       *       *       *       *       *       *


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 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]