Public Law 114–165: 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.

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PUBLIC LAW 114–165—JUNE 3, 2016
130 STAT. 415
Public Law
114–165
114th Congress
An Act
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.

June 3, 2016

[S. 184]

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

Native American Children’s Safety Act.
SECTION 1.

25 USC 3201 note.

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 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; or130 STAT. 416
“(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)

Time period.

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 130 STAT. 417 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)

Deadline.

Procedures.

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

Deadline.

Consultation.

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—130 STAT. 418
“(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.”
.
Approved June 3, 2016.

LEGISLATIVE HISTORY—S. 184 (H.R. 1168):

HOUSE REPORTS: ┐No. 114–79 (Comm. on Natural Resources) accompanying H.R. 1168.
SENATE REPORTS: ┐No. 114–37 (Comm. on Indian Affairs).

CONGRESSIONAL RECORD:

Vol. 161 (2015):

June 1, considered and passed Senate.

Vol. 162 (2016):

May 23, considered and passed House.

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