Association on American Indian Affairs

Indian Child Welfare

Background

AAIA began its active involvement in Indian child welfare issues in 1967, based upon the request of tribal leaders and distraught parents and grandparents, and for many years was the only national organization active in confronting the crisis in Indian child welfare. Association studies in the 1970s revealed that Indian children were placed in foster care far more than non-Indian children. The rate of placement ranged from 2.4 times the non-Indian rate in New Mexico to 22.4 times the national rate in South Dakota.  Moreover, the adoption rate was more than eight times that of non-Indians. These studies led Congress to invite AAIA to work with it to develop legislation to deal with this tragic situation where enormous numbers of Indian children were being removed from their families and tribal communities by overzealous and culturally-insensitive state workers. That legislation became the Indian Child Welfare Act of 1978 (ICWA). ICWA has provided vital protections to Indian children, families and tribes during the last 28 years.

AAIA has continued its efforts to ensure appropriate implementation of the Indian Child Welfare Act through a variety of activities.These activities have included:

  • Working on a number of successful and important legislative child welfare initiatives to enhance the capacity of tribes to provide quality child welfare services to the children and families that they serve, including bills that (1) make tribal governments and foster care and adoptive placements made by tribal courts eligible for direct federal funding under the Title IV-E Foster Care and Adoption Assistance program, (2) amendments to the Promoting Safe and Stable Families Act to increase funding for tribal programs and increase the number of eligible tribes for funding under that Act, and (3) amendments to the Interstate Compact on the Placement of Children that allow tribal home studies to be used for the purpose of interstate placement. It is estimated that passage of the Title IV-E and Title IV-B amendments will result in additional funding for tribal child welfare programs of more than $300 million over the next ten years.  It will also make tribal foster care homes and relative guardianships eligible for payments on the same basis as the states. 
  • Participation in a panel created by Council on Accreditation working to revise accreditation standard for public child welfare agencies.
  • Serving as an expert resource for an HHS Children’s Bureau panel considering ways to improve federal reviews of state child welfare systems and state child welfare data collection efforts.
  • Drafting a section of a Congressionally-mandated report on child abuse and neglect in Indian communities
  • Providing Indian Child Welfare Act training to Idaho state court judges, attorneys and social workers, the Ohio Department of Human Services, the New York State Office of Children and Family Services and adoption attorneys
  • Working with (1) an American Public Human Services Association task force looking at revisions to the Interstate Compact on Placement of Children (ICPC) functions, including whether Indian tribes should be able to take advantage of the ICPC, (2) the Native American Rights Fund ICWA Work Group that developed an Internet-based manual on the Indian Child Welfare Act and (3) the National Indian Child Welfare Association on an important project involving the use of tribally licensed foster homes by the State of Washington.
  • Testifying at a Congressional oversight hearing on state child welfare systems
  • Filing amicus curiae briefs in important ICWA cases such as Doe v. Doe before the Ninth Circuit Court of Appeals and In the Matter of Baby Boy C before the New York Supreme Court, Appellate Division. Our involvement in the latter case was instrumental in obtaining an opinion from the appellate court rejecting a lower court decision that had held that it would be unconstitutional to apply ICWA to a child whose parent was estranged from her tribe.

October, 2008

Tribal Provisions – P.L. 110-351 –
Enacted into law on October 7, 2008 –
all provisions in section 301 of the bill
(unless noted)

Direct funding to tribes.  Authorizes tribes, tribal organizations and tribal consortia at their option to apply to the Department of Health and Human Services (DHHS) to administer the Title IV-E foster care and adoption assistance program and receive direct funding from DHHS.  Except in limited circumstances, tribal plans for administration of the program would have to fulfill the same requirements as the statute sets out for state plans. 

Tribal-state agreements.  Tribal-state agreements are an alternative to direct funding.  States are required to negotiate IV-E agreements with tribes in good faith, if requested.  Any tribal-state agreement in effect on the date of enactment will remain in effect subject to the right of either party to revoke or modify the agreement and future tribal-state agreements are authorized.  The state may utilize the tribe’s FMAP for payments made pursuant to a Title IV-E tribal-state agreement (see below). 

Eligibility for foster care maintenance payments.  All Indian children placed by Indian tribes who are operating the Title IV-E program pursuant to an HHS-approved plan or through a tribal-state agreement are eligible to receive IV-E foster care maintenance or adoption assistance payments (or, at the option of the tribe, relative guardianship payments) if they otherwise meet Title IV-E criteria.   In implementing the AFDC eligibility provision in Title IV-E (the so-called “look back” provision), the plan of the State where the child resides shall govern.

Hold harmless. Any Indian family currently receiving Title IV-E benefits will not have their benefits terminated as a result of this legislation, regardless of whether an existing tribal-state agreement remains in force.  

Service Area.  Tribes, tribal organizations and tribal consortia must specify in their plans the service area or areas and population that they intend to serve. 

Foster Care Standards.  Tribes utilize their own foster care standards that must be reasonably in accord with recommended standards developed by national organizations (presumably this reference would include standards that have been developed by organizations like the National Indian Child Welfare Association [NICWA] that specifically address issues relating to licensure of Indian homes.)

Financial Capacity. An Indian tribe, tribal organization or tribal consortium seeking to operate the IV-E program must include in its plan evidence that it has not had any uncorrected significant or material exceptions under Federal grants or contracts that directly relate to the administration of social services for the 3 year period before the date on which it submits the plan.

Tribal FMAP rate used for federal payments.  Tribes, tribal organizations and tribal consortia for foster care and adoption placements would be reimbursed based on their medical assistance rate (FMAP), except that in no case shall the Secretary approve a tribal rate that is lower than that of any state in which the tribe is located.  The FMAP rate is calculated based upon the per capita income of the tribal service population as defined in its plan.  (In other words, a tribe with a lower level of income will receive a higher percentage of federal funding.)  A tribe may submit to the Secretary information relevant to this calculation, and the Secretary must take it into consideration. 

Source of matching funds/DHHS regulations. Tribes may use every source of match that states are permitted to use and all other sources otherwise permitted by law currently (including 638, Self-Governance and BIA ICWA funds).  In addition, there are provisions allowing for the limited use of in-kind match with instructions to HHS to promulgate permanent regulations on the use of in-kind match by October 1, 2011.  Until the regulations are promulgated, tribes may claim up to 25% of administrative costs (50% of the non-federal match) and 12% of training costs (48% of the non-federal match) except for  as in-kind expenditures from certain third party sources – specifically from a State or local government, tribal entity other than the one making the application, public institution of higher education, tribal college or university or a private charitable organization.  (H.R. 6893 expands the list of eligible training recipients; for those individuals, match rates are slightly lower through FY 2012, see section 203.)  There is a slight variation for training activities If regulations are not promulgated by FY 2015, then the right to use in-kind match expires.    There is a grandfather clause allowing tribes that have entered the program prior to the issuance of regulations to continue using in-kind under the statutory formula until October 1, 2013.

Nunc pro tunc limited to 12 months. Nunc pro tunc tribal court orders and affidavits can be used to satisfy the “contrary to the welfare” of the child determination required by law in order for a child to be eligible under Title IV-E, but only for the first 12 months after a plan has been approved by HHS.

Chafee Independent Living Program. Tribes, tribal organizations and tribal consortia are made eligible to receive a direct allocation from the Federal government from the John H. Chafee Independence Program.  The amount of the award would be calculated based upon the percentage of children in the state that are under a tribe’s custody and would be a deduction from the state’s allocation.  Tribes would also be permitted to access the program through tribal-state agreements and the State would be required to negotiate agreements in good faith if requested by a tribe.  HHS would be given some flexibility as to the exact nature of the payments to be made to tribes.

Regulations/In-Kind.  Except in the case of regulations pertaining to in-kind match, the Secretary of HHS is instructed to adopt regulations to implement this legislation within one year after enactment.  The regulations on in-kind match are required to be completed by September 30, 2011.  The Secretary would be required to consult with Indian tribes, tribal organizations and tribal consortia in developing regulations.

Effective date.  These sections take effect on October 1, 2009.

Technical Assistance/Start-Up Grants.   $3 million/year is appropriated to provide technical assistance to tribes operating programs under Title IV-B or IV-E and to provide one-time start up grants for up to two years (maximum $300,000/year) for tribes that intend to apply for direct funding under Title IV-E.   Section 302 of the bill.   This section takes effect immediately.

Other provisions.  State, local and tribal child welfare agencies and private nonprofit organizations are eligible to apply for a new $15million/year family connection grant program.   This competitive grant program focuses on efforts to coordinate and enhance services for relative caregivers.  Section 102 of the bill.  This section takes effect immediately.

Prepared by Jack F. Trope, Executive Director,
Association on American Indian Affairs