[Senate Report 113-264]
[From the U.S. Government Publishing Office]
Calendar No. 537
113th Congress Report
SENATE
2d Session 113-264
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TO ESTABLISH THE ALYCE SPOTTED BEAR AND WALTER SOBOLEFF COMMISSION ON
NATIVE CHILDREN, AND FOR OTHER PURPOSES
_______
October 1, 2014.--Ordered to be printed
Filed, under authority of the order of the Senate of September 18, 2014
_______
Mr. Tester, from the Committee on Indian Affairs,
submitted the following
R E P O R T
together with
ADDITIONAL VIEWS
[To accompany S. 1622]
The Committee on Indian Affairs, to which was referred the
bill (S. 1622) to establish the Alyce Spotted Bear and Walter
Soboleff Commission on Native Children, and for other purposes,
having considered the same, reports favorably thereon with an
amendment and recommends that the bill, as amended, do pass.
PURPOSE
The purpose of S. 1622 is to provide for a Commission to
conduct a comprehensive study on issues affecting Native
children. The Commission is named in honor of Ms. Alyce Spotted
Bear and Mr. Walter Soboleff. Ms. Spotted Bear was a former
tribal chairwoman of the Mandan, Hidatsa, Arikara Nation in
North Dakota, a passionate advocate for Native children and a
recognized leader in education. Mr. Soboleff was a member of
the Tlingit in Alaska as well as an educator, cultural and
traditional historian, and religious leader for the Alaska
Native people.
BACKGROUND
The federal government has a trust responsibility to
provide for the education, health, and safety of Native
children. Yet Native children are the most at-risk population
in the country, facing significant disparities in these areas.
According to the Center for Native Youth, there are
currently over 2.1 million American Indians and Alaska Natives
(AI/AN) under the age of 24 living in the United States.\1\ The
National Indian Child Welfare Association (NICWA) reports that
AI/AN children are overrepresented in foster care--at more than
2.1 times the general population--and 2 to 4 times the expected
level are awaiting adoption, and further that AI/AN children
have the third highest rate of victimization at 11.6 per 1,000
children of the same race or ethnicity.\2\ According to NICWA,
in 2009, 7,335 AI/AN children were victims of child
maltreatment.\3\ The Substance Abuse and Mental Health Services
reports that suicide is the second leading cause of death--2.5
times the national rate--for AI/AN youth in the 15 to 24 age
group.\4\ And the Suicide Prevention Resource Center reports
that between 1 in 9 and 1 in 5 AI/AN youth report attempting
suicide each year.\5\
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\1\CNAY Native American Youth 101. http://www.aspeninstitute.org/
sites/default/files/content/upload/
Native%20American%20Youth%20101_higres.
\2\2008-2011 Child Welfare Outcomes Report to Congress. See https:/
/www.acf.hhs.gov/programs/cb/resource/cwo-08-11.
\3\Id.
\4\CNAY Native American Youth 101. http://www.aspeninstitute.org/
sites/default/files/content/upload/
Native%20American%20Youth%20101_higres.
\5\Id.
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Another challenge for native youth is substance abuse.
According to the National Survey on Drug Use and Health, 22.9
percent of AI/AN youth ages 12 and older report alcohol use,
18.4 percent report binge drinking and 16.0 percent report
substance dependence or abuse. In the same group, 35.8 percent
report tobacco use and 12.5 percent report illicit drug use.
One indicator for the health of a community is mortality
rates. The Federal Interagency Forum on Child and Family
Statistics found that AI/AN infants experience higher infant
mortality rates than those of other racial or ethnic groups.
For example, in 2009, the AI/AN rate of infant mortality was
8.5 per 1,000 live births; higher than the rates among White,
non-Hispanic (5.3 per 1,000 live births), Hispanic (5.3 per
1,000 live births), and Asian or Pacific Islander (4.4 per
1,000 live births) infants.\6\
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\6\America's Children: Key National Indicators of Well-Being 2013.
http://www.childstats.gov/pdf/ac2013/ac_13.pdf.
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The Annie E. Casey Foundation KIDS COUNT--State Trends in
Child Well-Being 2013 Data Book found that 37 percent of
American Indian children live in poverty compared with 14
percent of non-Hispanic white children; 51 percent of American
Indian children's parents lack secure employment defined as
full-time, year-round employment compared with 25 percent of
non-Hispanic white children and 39 percent of Latino children;
American Indian teens have considerably higher rates of being
neither in school nor working than their non-Hispanic or Asian
or Pacific Islander counterparts; 15 percent of American Indian
teens are not in school and not working; 58 percent of 3 and 4
year-old American Indian children were not attending any form
of pre-school compared with 50 percent of African-American and
Asian and Pacific Islander children; and 13 percent of American
Indian teens abuse alcohol or drugs compared with 6 percent of
African-American teens.\7\
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\7\Kids Count--State Trends in Child Well-Being 2013 Data Book.
http://datacenter.kidscount.org/files/2013KIDSCOUNTDataBook.pdf.
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Each of these studies indicates that the United States is
failing native youth in virtually every aspect of their
development, from birth to adolescence.
Indian tribal governments face numerous obstacles in
responding to the needs of Native children. The lack of access
to current grant opportunities, due to cumbersome bureaucracy
and associated costs, stymies the efforts of Indian tribes to
tackle these issues. Federal agencies lack clear implementation
plans and coordinated efforts to best address the needs of
Native children.
The Commission proposed by S. 1622 is named in honor of
Alyce Spotted Bear--a former tribal chairwoman of the Mandan,
Hidatsa, Arikara Nation in North Dakota and a passionate
advocate for Native children and a recognized leader in
education--and Walter Soboleff--a Tlingit from Alaska, a noted
educator, cultural and traditional historian and religious
leader for Alaska Native people.
Knowing how to address the unique needs of Native children,
and creating safeguards and protections for them to develop in
safe, supportive communities, is considered a top priority for
Indian Country. Yet, we lack sufficient research and
understanding on the full scope of the issues and challenges
that exist.
Protecting Native children and providing them with safe and
supportive communities has been a top priority identified by
tribal leaders to this Committee. The collection, development,
and evaluation of appropriate data is fundamental to a
comprehensive assessment of the needs of Native children, who
are the most vulnerable victims of the chronic underfunding of
programs delivering services to Indian Country. S. 1622 would
establish a Commission to facilitate such an assessment.
Finding the best methods of and coordinating the service
delivery systems for these children would be a central mission
of the Commission. The intent of S. 1622 and goal of the
Commission is to develop recommendations to address the unique
needs of Native children and to create safeguards for
protecting these children. The Commission's work is also
intended to build upon the efforts of other workgroups
evaluating Native children's needs, such as the Attorney
General's Task Force on American Indian/Alaska Native Children
Exposed to Violence.
The Commission proposed by S. 1622 would develop
recommendations, and issue a report on the necessary
modifications and improvements to programs at federal, state,
and tribal levels. These recommendations are intended to
identify improvements to child welfare systems in which Native
children are involved, mental and physical health systems
serving Native children, and the educational and academic
achievement of Native students.
LEGISLATIVE HISTORY
S. 1622 was introduced on October 30, 2013, by Senator
Heidi Heitkamp (D-ND) along with Senator Lisa Murkowski (R-AK)
as an original cosponsor. The following were also added as
cosponsors: Senators Tammy Baldwin (D-WI), Max Baucus (D-MT),
Mark Begich (D-AK), Richard Blumenthal (D-CT), Barbara Boxer
(D-CA), Maria Cantwell (D-WA), Susan Collins (R-ME), Mike Crapo
(R-ID), Dianne Feinstein (D-CA), Deb Fischer (R-NE), Al Franken
(D-MN), Kirsten Gillibrand (D-NY), Kay Hagan (D-NC), Orrin
Hatch (R-UT), Martin Heinrich (D-NM), Mazie Hirono (D-HI), John
Hoeven (R-ND), Mike Johanns (R-NE), Tim Johnson (D-SD), Amy
Klobuchar (D-MN), Barbara Mikulski (D-MD), Jerry Moran (R-KS),
Patty Murray (D-WA), John Rockefeller (D-WV), Brian Schatz (D-
HI), Debbie Stabenow (D-MI), Jon Tester (D-MT), John Thune (R-
SD), Mark Udall (D-CO), Tom Udall (D-NM), John Walsh (D-MT),
Elizabeth Warren (D-MA), and Sheldon Whitehouse (D-RI).
The bill was referred to the Committee on Indian Affairs.
On April 2, 2014, the Committee held a hearing on the bill. The
Department of the Interior testified in favor of the bill. On
May 21, 2014, the Committee met at a business meeting to
consider the bill. One amendment was offered and adopted, and
the bill as amended was ordered to be favorably reported to the
Senate by voice vote.
SUMMARY OF AMENDMENT
At a Committee business meeting held on May 21, 2014,
Senator Heitkamp offered an amendment in the nature of a
substitute. The amendment was agreed to. In addition to
technical corrections, the amendment amended provisions of the
bill regarding Commission appointments to make it clear that
they last for the life of the Commission. It also amended the
bill to require the Commission to utilize available technology
to improve coordination and reduce travel costs to the maximum
extent practicable. Finally, it directed the Commission to make
recommendations for strategies to prevent and reduce truancy
among Native children.
SECTION-BY-SECTION ANALYSIS OF BILL AS ORDERED REPORTED
Section 1. Short title
This Act may be cited as the ``Alyce Spotted Bear and
Walter Soboleff Commission on Native Children Act.''
Section 2. Findings
Section 2 sets forth the findings of Congress:
The United States has a distinct legal,
treaty, and trust obligation to provide for the
education, health care, safety, social welfare, and
other needs of Native children;
Chronic underfunding of Federal programs to
fulfill the longstanding Federal trust obligation has
resulted in limited access to critical services for the
more than 2,100,000 Native children under the age of 24
living in the United States;
Native children are the most at-risk
population in the United States, confronting serious
disparities in education, health, and safety, with 37
percent living in poverty;
17 percent of Native children have no health
insurance coverage, and child mortality has increased
15 percent among Native children aged 1 to 14, while
the overall rate of child mortality in the United
States decreased by 9 percent;
Suicide is the second leading cause of death
in Native children aged 15 through 24, a rate that is
2.5 times the national average, and violence, including
intentional injuries, homicide, and suicide, account
for 75 percent of the deaths of Native children aged 12
through 20;
58 percent of 3- and 4-year-old Native
children are not attending any form of preschool, 15
percent of Native children are not in school and not
working, and the graduation rate for Native high school
students is 50 percent;
22.9 percent of Native children aged 12 and
older report alcohol use, 16 percent report substance
dependence or abuse, 35.8 percent report tobacco use,
and 12.5 percent report illicit drug use;
Native children disproportionately enter
foster care at a rate more than 2.1 times the general
population and have the third highest rate of
victimization; and
There is no resource that is more vital to
the continued existence and integrity of Native
communities than Native children, and the United States
has a direct interest, as trustee, in protecting Native
children.
Section 3. Definitions
Section 3 defines key terms used throughout the Act.
Section 4. Commission on Native children
Section 4(a) establishes the Commission in the Office of
Tribal Justice in the Department of Justice.
Section 4(b)(1) provides that there shall be 11 members to
the Commission: three would be appointed by the President in
consultation with the Attorney General, the Secretary of the
Interior, the Secretary of Education, and the Secretary of
Health and Human Services; three by the Speaker of the House in
consultation with the House Committee on Natural Resources;
three by the Majority Leader of the Senate, in consultation
with the Senate Committee on Indian Affairs; and finally, the
Minority Leaders of the House and Senate would each appoint one
member.
Section 4(b)(2) determines the requirements for eligibility
for Commission members. Each member is required to have
expertise and experience in Indian Affairs. One member shall be
an expert on Native children, and one member is required to
have expertise in social science research or statistics.
Section 4(b)(3) delineates the term of appointment for each
commissioner is the life of the Commission, with any vacancy
being filled in the same manner in which the original
appointment was made.
Section 4(c) establishes that the commissioners shall
choose their own chairperson, and that she will call the
initial meeting within 30 days following the appointment of the
eleventh commissioner, and that, with a quorum of commissioners
set at a majority, the Commission shall determine its own
rules.
Section 4(d) provides for the mandatory creation of a
Native Advisory Committee (NAC) composed of one representative
who is at least 25 years old or older, of Indian tribes from
each of the Bureau of Indian Affairs regions and one Native
Hawaiian who is at least 25 years old or older. Each member of
the NAC must also have experience in matters relating to the
Commission's study. The NAC will provide advice and
recommendations to the Commission as the Commission deems
necessary. Furthermore, the NAC will have a subcommittee
consisting of at least one member from each of the BIA's
regions and a Native Hawaiian, each of whom shall be a Native
child who has experience serving on the council of a tribal,
regional, or national youth organization.
Section 4(e)(1) sets forth the requirement that the
Commission produce a comprehensive study of federal, state,
local, and tribal programs that serve Native children,
including evaluations of: concurrent jurisdiction of child
welfare systems; barriers in applying for public and private
grants; obstacles to obtaining nongovernmental support; issues
relating to data collection; barriers to developing
sustainable, multidisciplinary programs to assist high-risk
Natives and their families; and barriers to interagency
coordination.
Section 4(e)(2) determines that, in order to prevent
duplication, the Commission must collaborate with other
workgroups focused on similar issues, such as the Task Force on
American Indian/Alaska Native Children Exposed to Violence of
the Attorney. In addition, to the extent practicable, the
Commission is to use available technology to reduce travel and
other costs.
Section 4(e)(3) provides the Commission is to develop
goals, and plans for achieving those goals, for Federal policy
relating to Native children in the short-, mid-, and long-term,
which shall be informed by the development of accurate child
well-being measures.
In addition, the Commission is to make recommendations on
necessary modifications and improvements to programs that serve
Native children at the federal, state, and tribal levels that
integrate the cultural strengths of the communities of the
Native children and will result in the following: (i)
improvements to the child welfare system; (ii) improvements to
the mental and physical health of Native children, taking into
consideration the rates of suicide, substance abuse, and access
to nutrition and health care; (iii) improvements to educational
and vocational opportunities for Native children; (iv) improved
policies and practices by local school districts that would
result in improved academic proficiency for Native children;
(v) increased access to extracurricular activities for Native
children that are designed to increase self-esteem, promote
community engagement, and support academic excellence while
also serving to prevent unplanned pregnancy, membership in
gangs, drug and alcohol abuse, and suicide, including
activities that incorporate traditional language and cultural
practices of Indians and Native Hawaiians; (vi) improvements to
federal, state, and tribal juvenile detention programs; (vii)
expanded access to a continuum of early development and
learning services for Native children from prenatal to age five
that are culturally competent, support Native language
preservation, and comprehensively promote the health, well-
being, learning, and development of Native children; (viii) the
development of a system that delivers wrap-around services to
Native children in a way that is comprehensive and sustainable,
including through increased coordination among Indian tribes,
schools, law enforcement, health care providers, social
workers, and families; (ix) more flexible use of existing
Federal programs; and (x) solutions to other issues that, as
determined by the Commission, would improve the health, safety,
and well-being of Native children.
The Commission is also required to make recommendations on
improving data collection and sharing.
Section 4(f) requires the Commission to issue a report to
the Congress, the President, and the White House Council on
Native American Affairs on its findings and recommendations no
later than three years after which all commissioners are
appointed and funds are made available to carry out the
requirements of the Act.
Section 4(g) establishes the powers of the Commission to
hold hearings, which shall be public, and that witness expenses
shall be provided for as under 28 U.S.C. 1821. Federal agencies
must provide information to the Commission as requested, but
State and tribal authorities are not so required. Use of the
postal services shall be the same as for other federal
departments and gifts may be accepted and used as they relate
to the purpose of the Commission.
Section 4(h) determines that the travel expenses of
commissioners shall be at the same rates as under title 5,
chapter 57, subchapter I of the U.S.C. as are allowed for
federal employees. Federal detailees may be used by the
Commission upon approval by a two-thirds vote of the
commissioners and by the respective agency head. Detailees
shall suffer no impairment of their civil service status due to
their detail. Further, the Attorney General shall provide
physical space and on a reimbursable basis and supplies to the
Commission as may be necessary to carry out its work. No
commissioner, member of NAC, nor member of the Native Children
Subcommittee shall be considered a Federal employee.
Section 4(i) provides that the Commission shall terminate
90 days after the submission of its report.
Section 4(j) prevents the Federal Advisory Committee Act
from applying to the Commission.
Section 4(k) determines that of any unobligated amounts
made available to the Secretary of the Interior, the Attorney
General, the Secretary of Health and Human Services, the
Attorney General shall not make more than $2,000,000 available
to the Commission to carry out this Act.
COST AND BUDGETARY CONSIDERATIONS
The following cost estimate, as provided by the
Congressional Budget Office, dated July 7, 2014, was prepared
for S. 1622:
Washington DC, July 7, 2014.
Hon. Jon Tester,
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. 1622, the Alyce
Spotted Bear and Walter Soboleff Commission on Native Children
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. 1622--Alyce Spotted Bear and Walter Soboleff Commission on Native
Children Act
Summary: S. 1622 would establish the Alyce Spotted Bear and
Walter Soboleff Commission on Native Children in the Office of
Tribal Justice of the Department of Justice. The 11-member
commission would be tasked with completing a study of federal
and non-federal programs that serve Native American children.
Under the bill, the commission would use the results of the
study to develop plans and recommendations to improve those
programs. S. 1622 also would allow the commission to use staff
detailed from other federal agencies to complete its work and
reimburse commission members for traveling expenses.
Estimated cost to the federal Government: Based on the
costs of similar commissions, CBO estimates that implementing
the legislation would cost about $3 million over the 2015-2019
period, subject to appropriation of the necessary amounts,
mostly to pay salaries and expenses of employees detailed to
the commission.
Pay-As-You-Go considerations: Enacting S. 1622 also would
affect direct spending because it would authorize the new
commission to accept and spend gifts; therefore, pay-as-you-go
procedures apply. However, CBO estimates that the net effect on
direct spending would be insignificant. Enacting S. 1622 would
not affect revenues.
Estimated impact on state, local, and tribal governments:
S. 1622 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
Estimated impact on the private sector: None.
Estimate prepared by: The estimate was prepared by Martin
von Gnechten.
Estimate approved by: 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. 1622 will
have a minimal impact on regulatory or paperwork requirements.
EXECUTIVE COMMUNICATIONS
The Committee has received no communications from the
Executive Branch regarding S. 1622.
ADDITIONAL VIEWS OF VICE CHAIRMAN BARRASSO
The Alyce Spotted Bear and Walter Soboleff Commission on
Native Children Act, S. 1622, establishes a Commission within
the Department of Justice to conduct a comprehensive study of
Federal, state, local, and tribal programs that serve Native
children. The Commission is required to develop goals (and
plans for achieving those goals) for Federal policy relating to
Native children--including both Indian and Native Hawaiian
children.
There are many opportunities for the agencies providing
these programs to work together in a more effective manner for
these children. For example, the Indian Law and Order
Commission, established by the Tribal Law and Order Act,
provided an extensive review of several key issues and
recommendations relating to Native American children to
consider. Likewise, the Attorney General established the Task
Force on American Indian and Alaska Native Children Exposed to
Violence to examine the scope of violence impacting Native
American children and make recommendations to address it. In
addition, the White House Council on Native American Affairs
can promote interagency coordination to address Native
children's issues.
We must be confident that policies are implemented
effectively to support and protect Native children. That begins
with recognizing important distinctions underlying these
policies.
The overarching purpose of the bill is to lead to
improvements in the quality of life for Native children through
the various policies, programs, and services provided by the
Federal, state, local, and tribal governments. This very same
premise was the basis for the Department of the Interior's
Advanced Notice of Proposed Rulemaking (ANPR) on reestablishing
a government to government relationship with the Native
Hawaiians. See Procedures for Reestablishing a Government-to-
Government Relationship With the Native Hawaiian Community, 79
Fed. Reg. 35296, 35298, June 20, 2014.
The ANPR fails to distinguish that Congressional or
Executive actions providing assistance and programs for the
betterment of the Native Hawaiian people are profoundly
different from the solemn act of recognizing a sovereign
government, similar to tribes or otherwise.
It is unclear under S. 1622 to what extent the Commission
would propose changes to Federal and state policies involving
aspects of recognizing a Native Hawaiian government to improve
services, similar to what the Department of the Interior is
attempting to do.
Congress, and this Committee in particular, has long
struggled with the constitutionality of Native Hawaiian
recognition. The Commission is not in any better position than
Congress to examine and determine the constitutionality of such
recognition.
The breadth of the Commission's responsibilities under S.
1622 is quite extensive. I am concerned, in particular, with
how the Commission's recommendations could extend to matters
which implicate the Federal recognition of a Native Hawaiian
government.
CHANGES IN EXISTING LAW (CORDON RULE)
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds that the
enactment of
S. 1622 will not make any changes in existing law.