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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

General Memorandum 16-037

General Memorandum 16-037
Native American Children's Safety Act Signed into Law

On June 3, 2016, the President signed S 184 as PL 114-165, the Native American Children's Safety Act (Act). The Act prescribes certain background check requirements to be undertaken by tribal social service agencies for tribal court-ordered foster care placements. S 184 was introduced by Senators Hoeven (R-ND) and Tester (D-MT) and companion legislation was introduced by Representative Cramer (R-ND). A copy of the Act is attached.

Tribes are already subject to criminal background check requirements for tribally-licensed foster care placements per Bureau of Indian Affairs (BIA) guidance issued pursuant to the Indian Child Protection and Family Violence Prevention Act (PL 99-570). At the same time, tribes who administer the Social Security Act's Title IV-E Foster Care and Adoption Assistance Act have additional background check requirements, creating overlapping and, in some cases, inconsistent requirements. There are also approximately 100 state-tribal Title IV-E agreements which may include background check requirement for tribes who are party to those agreements. The Native American Children's Safety Act amends PL 99-570 by incorporating into it the background check provisions found in the Title IV-E Foster Care and Adoption Assistance Act.

The Act specifies that tribal social services agencies must:
• Undertake 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
• Conclude that each covered individual meets such standards as the tribe establishes.

A covered individual is any person 18 years of age or older and any person who the tribal social services agency determines is subject to a criminal records check. A home may not be licensed as a foster care home nor a child placed there if a covered individual has been found by a federal, state, or tribal court to have committed any crime set out in 42 U.S.C. 671(a)(20(A)) which is part of Title IV-E of the Social Security Act.

Criminal record checks are to include:
• Fingerprint-based checks of national crime information data bases;
• Checking of abuse registries maintained by the tribe, and any child abuse and neglect registry maintained by the state; and
• Any additional requirement that the tribe may determine is necessary and permissible.
In cases of emergency foster care placements, background checks do not need to be completed before the child is placed in a home.

An issue that received significant attention during the consideration of S 184 was the one of adults who take residence in a home after background checks have been completed and the child has been placed there. Thus, the Act includes the new requirement that tribes establish procedures to recertify foster homes at periodic intervals regarding the safety of the home and also for the purpose of background checks on adults who were not in the home at the time of the child's placement.

Consultation/Guidance. Finally, the Act requires the Department of Interior to consult with tribes and to issue guidance or regulations regarding procedures for criminal records checks and for self-reporting by the head of the household or the operator of the institution who has knowledge of individuals in the home or institution who have been convicted of certain crimes or listed on a child abuse registry. Other topics for consultation are "promising practices" for emergency foster care placements and certification of compliance with the Act.

We bring to your attention two of our General Memoranda regarding federal agency efforts to expand tribal access to national crime information data bases and BIA procedures for use in background checks for emergency child placements:
• General Memorandum 16-062 of August 25, 2015: Departments of Justice and Interior Introduce Two Programs to Expand Tribal Access to National Crime Information Databases, and
• General Memorandum 15-065 of September 15, 2015: BIA Implementation Procedures for the purpose Code X program: For Use in Background Checks for Emergency Child Placements.

Please let us know if we may provide additional information or assistance regarding the Native American Children's Safety Act.

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Inquiries may be directed to:
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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