| |
CWLA 2008 Children's Legislative Agenda
Tribal Child Welfare Issues
© Child Welfare League of America. The content of these publications may not be reproduced in any way, including posting on the Internet, without the permission of CWLA. For permission to use material from CWLA's website or publications, contact us using our website assistance form.
Action
- Pass the Tribal Foster Care and Adoption Access Act
of 2007 (S. 1956/ H.R. 4688). This legislation gives
Native American tribes direct access to federal funding
for foster care and adoption assistance through the
Title IV-E program.
- Give tribes greater funding access through Title IV-B and
other child welfare and human service programs such as
the Child Abuse Prevention and Treatment Act (CAPTA)
and the Social Services Block Grant (SSBG).
- Pass S. 398 and reauthorize the Indian Child Protection
and Family Violence Act. Appropriate funds consistent
with authorizations under the two grant programs ($43
million combined) on prevention and treatment of child
abuse and neglect for tribes.
- Direct the U.S. Department of Health and Human
Services (HHS) to establish a tribal child welfare
technical assistance and training center that can
meet the unique governmental, cultural, and service
delivery circumstances of tribal child welfare programs
and communities.
- Direct HHS to address concerns raised in the
Government Accountability Office (GAO) study by tribal
representatives and members of the Child and Family
Services Review Work Group regarding the Children's
Bureau's role in improving implementation by states of
the Indian Child Welfare Act (ICWA, P.L. 95-608).
- Support legislative changes to ICWA that are supported
by Indian Country to improve and clarify implementation
of ICWA.
History
National data and case studies validate the need to assess,
examine, and eliminate factors that contribute to the disproportionate
representation of children of color and tribal
communities in the child welfare system. This disproportionate
representation can be related to the disparities
in the services they receive. Despite some congressional
attention paid to these issues as they relate to tribal
communities, a lack of access to federal funding and the
services they provide remains.
In 1978, Congress passed ICWA to preserve cultural and
family ties among Native American children and families and
to ensure respect for tribal authority in decisions concerning
the placement of Indian children in out-of-home care.
ICWA requires states identify Indian children and notify
the child's parents and tribe of their rights to intervene in a
custody proceeding. ICWA also requires certain procedures
regarding the use of tribal courts, child custody proceedings,
tribal intervention standards, and placement preferences.
The act establishes a two-part requirement for states
before they remove an Indian child, which involves efforts to
prevent the breakup of the Indian family, and standards for
court findings.
- Congressional hearings, beginning in 1974, led to the
passage of ICWA in 1978 and focused on child welfare
issues of Native American children in out-of-home placement,
with particular attention on placing Indian children in
non-Indian settings or families. Studies preceding these
hearings showed that between 1969 and 1974, 25% to 35%
of all Native American children in some states were
removed from their homes and placed in foster care or
adoptive homes. In certain states, Native American children
were 13 times more likely to be removed from their families
than were non-Indian children. 1
In 2005, Congress directed the GAO to study the impact
of ICWA and, in particular, to determine if the ICWA requirements
were causing delays in the placement of Native
American children. The GAO study concluded that the ICWA
requirements did not result in poorer outcomes for children.
Few states researched by GAO kept detailed information,
but those that did provided more data that there was no
clear link or evidence ICWA was harmful in its impact.
Furthermore, interviews with tribes and states participating
in the study indicated the law facilitated greater availability
of resources and cooperation between tribes and states in
providing services to and protection of Indian children.
In its recommendations, the GAO proposed HHS review
information made available by states through their Child
and Family Service Reviews (CFSRs). This review found that
10 of 51 state reports did not mention ICWA implementation.
GAO also proposed that states be required to include
in their annual progress and services reports any significant
ICWA issues not addressed in the Program Improvement
Plans (PIPs) that resulted from the CFSRs. 2
A key finding of the GAO study was the problem of measuring
ICWA compliance and assisting improved compliance
when there was no explicitly named oversight agency. In
response, the Children's Bureau indicated they did not support
the recommendations in the study and did not believe
they were the appropriate agency to carry out additional
technical assistance for states on ICWA implementation.
Although ICWA established procedures and protections
for placing Indian children in out-of-home care, adequate
funding to provide these services did not follow. Comments
submitted to the GAO during its study indicated that, at
times, the lack of resources for tribes hindered placements
and that states relied on the tribes for assistance in meeting
ICWA's requirements. 3
Tribal child welfare services operate in a unique context
shaped by laws, jurisdictional issues, cultural factors, financial
constraints, and a federal trust relationship that is unlike
any other experienced by states or the territories. Efforts by
more mainstream technical assistance centers, sometimes in
partnership with tribal consultants or Indian organizations to
address tribal program capacity and professional worker
development, have been ongoing, but even more attention and
a truly dedicated technical assistance and training center is
needed to properly address these unique issues. Establishing
this type of center will more effectively organize resources to
address tribal child welfare needs and will allow for fuller
development of expertise, as well as new methods for delivering
needed technical assistance and training.
Most federal funds that could address the needs of
children from tribes that come into contact with the child
welfare system are not provided directly to tribal governments.
Tribes receive a limited set-aside of funds from
Title IV-B Part 1 and 2, Child Welfare Services (CWS), and
the Promoting Safe and Stable Families (PSSF) program
respectively. Under Part 1, more than half of the tribal
grants are less than $10,000, and under Part 2, most of
the tribal grants are under $40,000. Under the Child
Abuse Prevention and Treatment Act (CAPTA), tribes compete
for a very small portion of funding with organizations
serving migrant populations. Tribes are not eligible to
receive direct funding from the other grant programs and
are forced to compete with states. In addition, tribes benefit
very little from the Children's Trust Funds to prevent
child abuse and neglect that are supported under the law.
Overall, tribes receive very little funds for child abuse
and neglect prevention activities. Tribes receive no direct
funding from the SSBG and do not have the option of receiving
federal Title IV-E Foster Care and Adoption Assistance
funds. As a result, most Native American children placed in
out-of-home and adoptive settings through tribal courts are
not eligible for federal foster care maintenance or adoption
assistance payments. In a few instances, tribes have been
able to negotiate agreements with states that allow them
to access Title IV-E funds, but these agreements are not
mandatory and are available to less than 55% of federally
recognized tribes.
Access to Title IV-E Funds
Over the last several years, Congress has introduced legislation
that would allow tribal governments to directly apply
for Title IV-E funds. In this 110th Congress, Senators
Baucus (D-MT), Domenici (R-NM), Bingaman (D-NM),
Smith (R-OR), Stabenow (D-MI), Levin (D-MI) McCain
(R-AZ), and Cantwell (D-WA) reintroduced the Tribal Foster
Care and Adoption Access Act (S. 1956). This bill is a
bipartisan effort.
In the last Congress, Rep. Jim McDermott (D-WA) introduced
a child welfare bill that included similar provisions.
The House introduced a companion bill in December 2007
(H.R. 4688), led by Representatives Pomeroy (D-ND), Weller
(R-IL), Blumenauer (D-OR), and Camp (R-MI). These bills
would allow tribes to apply directly to HHS for Title IV-E
funding for eligible children in foster care and adoptive
homes. A Tribal government applying to draw down funds
directly would have to meet most of the same requirements
and standards required of states. HHS would have some
flexibility applying these requirements. Similar to current
state requirements, a tribe would have to submit a plan
indicating its area of service, which may not coincide with
such geographic lines as city, county, or state borders. A
tribe, however, could receive a different reimbursement
rate, since the income in its service area may be lower than
the particular state in which the tribal land is located.
Tribal Legislation in Previous Sessions
of Congress
In 2006, with the reauthorization of the PSSF program and
CWS through the Child and Family Services Improvement
Act of 2006 (P.L. 109-288), greater access was provided to
PSSF funds. 4 The set-aside, or amount of funding designated
to tribal governments, was increased and tribal governments
were able to join together in consortia to apply for funds-
an action that finally allowed small tribes to access funding.
The reauthorization increased the tribal set-aside under the
law to 3% of PSSF funds under both the mandatory and discretionary
portions of the program. Previously, only 1% and
2% of funds respectively were reserved for tribal applicants.
Tribal communities can also apply for new funding available
through the reauthorization to address the problem of substance
abuse as it affects child welfare. Even with these
advancements, Congress continues to fund PSSF below its
authorized amount of $505 million-with FY 2008 appropriations
set at $368 million. Were PSSF fully funded, it would
greatly assist both states and tribal governments.
In 2006, the Senate passed the reauthorization of the
Indian Child Protection and Family Violence Act. The legislation
(S. 1899), sponsored by Sen. John McCain (R-AZ),
would have reauthorized funding for child protection programs
for tribal communities. The act was first passed in
1990 and is intended to channel child abuse prevention and
treatment funding to tribal governments nationwide.
Throughout their history, the two grant programs authorized
for tribes to prevent or treat victims of child abuse and neglect
have not been funded. During a 2006 Senate hearing,
both McCain and Senate cosponsor Byron Dorgan (D-ND)
noted a lack of accompanying federal funding. The Senate
passed the reauthorization, but the House failed to follow
through with final action. The Indian Child Protection and
Family Violence Prevention Act Amendments of 2007 were
reintroduced in the 110th Congress (S. 398). This bill is
another bipartisan effort.
In the past, Congress has introduced legislation to
address shortfalls or gaps in implementation of ICWA. In
2004, Rep. Don Young (R-AK) introduced the Indian Child
Welfare Act Amendments in response to concerns over the
effectiveness of that law. Similar legislation may be introduced
again in the 110th Congress. While the scope of
future legislation is unknown, CWLA remains supportive of
efforts that are also supported by tribes to improve ICWA
implementation.
Key Facts
- There are approximately 565 federally recognized
American Indian and Alaskan Native tribes and about 2.5
million American Indian and Alaskan Natives. The largest
population of Native Americans is concentrated in 13
states and includes more than 646,000 people. 5
- Of the 899,000 substantiated cases of child abuse in
2005, 16.5 per 1,000 (or 14,833) involved American
Indian or Alaskan Native children. 6
- In South Dakota, 40% of substantiated cases of child
abuse were among American Indian children. In Montana
(22%), North Dakota (20%), and Oklahoma (15%), more
than 15% of substantiated cases of child abuse were
among American Indian children. 7
- As of September 30, 2005, 2.1% of the children in outof-
home care were American Indian or Alaskan Native. 8
- As of September 30, 2005, 2,120 American Indian or
Alaskan Native children were waiting to be adopted, and
694 were adopted through public agencies. 9
Sources
- Brown, E., Limb, G., Chance, T., & Munoz, R. (2002). The Indian Child Welfare Act: An examination of state compliance in Arizona. Available online. Seattle, WA: Casey Family Programs; and Portland, OR: National Indian Child Welfare Association. back
- Government Accountability Office. (2005). Indian Child Welfare Act: Existing information on implementation issues could be used to target guidance and assistance to states. (GAO-05-290). Washington DC: Author. back
- Ibid. back
- View CWLA's description of the Children and Families Services Improvement Act of 2006, P.L. 109-288, the reauthorization of the Promoting Safe and Stable Families (PSSF) program. back
- Willeto, A. (2002). Native American kids 2002: Indian children's well-being indicators data book for 13 states. Available online. Seattle, WA: Casey Family Programs; and Portland, OR: National Indian Child Welfare Association. back
- Administration on Children and Families. (2007). Child maltreatment 2005. Washington, DC: U.S. Government Printing Office. back
- Ibid. back
- Child Welfare League of America. (2007). Special tabulation of the Adoption and Foster Care Analysis Reporting System. Arlington, VA: Author. back
- Ibid. back
CWLA Contact
Branden McLeod
703/412-2431
 Back to Top  Printer-friendly Page  Contact Us
|
|
