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[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.

                                  
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