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Home > Advocacy > CWLA 2008 Children's Legislative Agenda > Tribal Child Welfare Issues


CWLA 2008 Children's Legislative Agenda

Tribal Child Welfare Issues

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  • 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.


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


  1. 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
  2. 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
  3. Ibid. back
  4. 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
  5. 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
  6. Administration on Children and Families. (2007). Child maltreatment 2005. Washington, DC: U.S. Government Printing Office. back
  7. Ibid. back
  8. Child Welfare League of America. (2007). Special tabulation of the Adoption and Foster Care Analysis Reporting System. Arlington, VA: Author. back
  9. Ibid. back

CWLA Contact

Branden McLeod

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