REGARDING

PROPOSALS TO REFORM FEDERAL CHILD WELFARE FINANCING

JULY 16, 2004

Terry L. Cross

Executive Director

The National Indian Child Welfare Association submits this statement on current proposals to reform federal child welfare financing and the potential impacts upon Indian children, families, and tribal governments. Attached is a brief description of our organization and our work.

We are pleased that the subcommittee is studying ways toto improve services and financing of child welfare services for this nation’s children and families. Our constituency, American Indian and Alaska Native tribal governments and their children and families, have not always benefited from the federal government’s programs in child welfare and we are glad that the subcommittee is taking steps to make sure any new proposals reach this very vulnerable population. Your proposal, as well as the Pew Commission’s recommendations, acknowledges the great injustice done to Indian children by proposing that tribal governments be able to provide the services and protections of the Foster Care and Adoption Assistance Act to the children under their jurisdiction.

Representative Frenzel, in his testimony before this subcommittee last week said that the Pew Commission began and ended every meeting by judging their work to see if it met the goal of every child having a safe, permanent home. Chairman Herger has asked the public to make recommendations on child welfare legislation that is premised on the goal of doing more to protect our children. If one truly takes these principles to heart, then you must make real efforts with regard to tribal governments and the children under their jurisdiction. Legislation to accomplish this must take into account the sovereign nature of tribal governments, the fact that they have not been able to access the Title IV-E Foster Care and Adoption Assistance programs (nor the Title XX Social Services Block Grant nor, until very recently, the Title IV-D child Support Enforcement program) and their economic and cultural circumstances.

Background

The subcommittee’s draft proposal would change the requirements and funding system for the Title IV-E and IV-B programs. We understand and support the need to make changes to improve services leading to improved outcomes for children. Indian children have been and continue to be disproportionately represented in state foster care systems. Where improvements have occurred, tribes were always critical players in providing services or identifying permanent placements. The primary barrier to Indian children receiving more timely and lasting permanency, in our view, has been the lack of funding and opportunities to serve their children and families living on tribal lands and provide resources and expertise to states that have Indian children and families in their jurisdiction. Where tribal governments have been empowered through funding and opportunities to serve their members, Indian children have faired better (Red Horse, Martinez, & Day, 2001). Below we have provided a brief description of tribal access to Title IV-E and Title IV-B.

Title IV-E serves very few American Indian or Alaska Native children living on tribal lands, because of a statutory oversight that only allowed tribal governments to access the program if they could develop an agreement with the state they reside in. These tribal/state agreements are not mandated and both states and tribes have experienced difficulty in trying to develop agreements (U.S. Department of Health and Human Services, Office of Inspector General, 1994 and Brown, Limb, Munoz, R., and Clifford, 2000). This has resulted in American Indian and Alaska Native children being ineligible for a federal entitlement that all other children are guaranteed. Currently, there are only about 70 tribes that have agreements with states on Title IV-E, and some of these agreements do not provide access to all program components (administration, training, and maintenance funds).

Under Title IV-B, tribal governments are eligible for direct funding. However, the amounts and number of tribes eligible to apply are very small. Title IV-B, Subpart 1, Child Welfare Services is formula driven based upon the number of children under age 21. This formula is expected to allocate $5.2 million in FY 2004 for tribal governments, with 477 of the 560 eligible tribal governments receiving less than a $10,000 grant. Half of the 477 tribal grantees will receive a grant of less than $5,000. Under Title IV-B, Subpart 2, Promoting Safe and Stable Families, the statute contains a formula that determines tribal allocations and eligibility. To be eligible to receive funding a tribal government must receive a grant of $10,000 or more under the formula. In FY 2004, this provides eligibility to approximately 66 tribes to share in $5.05 million (1% of the mandatory funding = $3.05 million and 2% of the discretionary funding = $2.0 million).

While tribal child welfare funding from federal and state sources has been limited in most cases, tribal governments have made exceptional strides in developing services that are responsive to their communities and reforming service delivery systems when needed. The use of volunteers, leveraging multiple funding sources, and developing partnerships with other private and public entities are nothing new to tribal governments and share a common thread with the values that we see forming the foundation of reforms now being considered. Other supporting services for children, such as mental health, are also being reviewed and new approaches are being developed to serve American Indian and Alaska Native children. These efforts are increasing coordination between service providers in many child related service arenas and utilizing the strengths of families and community more effectively to deliver treatment in less restrictive settings and with greater impact (Cross, Earle, Echo-Hawk Solie, and Manness, 2000).

Financing Child Welfare

As we indicated earlier, we view the subcommittee’s efforts to reform federal child welfare financing as an important goal. How American Indian and Alaska Native children and the tribal governments that serve them fit into these efforts is a discussion that is important to continue and is acknowledged in the subcommittee’s draft proposal by making tribal governments eligible. In addition, Congressman Camp has demonstrated his support for helping tribal governments secure Title IV-E funding by co-sponsoring H.R. 443, legislation under the subcommittee’s jurisdiction that makes tribal governments eligible to apply for and administer the existing Title IV-E foster care and adoption assistance program. The President’s flexible funding proposal also acknowledges the need to include tribal governments in any funding reform too, as does the Pew Commission Report. Some of these proposals need improvement, and we have shared our comments to that end with the subcommittee both in writing and in meetings with staff.

Given that tribal governments have not been afforded the opportunity to operate the Title IV-E program and therefore have not been able to establish historical data on their needs or trends in relation to foster care and adoption assistance, our first choice would be the enactment of H.R. 443. Providing tribes with an opportunity to operate the current foster care entitlement program, which by a Congressional Budget Office score reaches only $54 million at it’s peak, will ensure that future reform efforts will have data and are well informed and that American Indian and Alaska Native children are not unintentionally left without foster care support in the immediate future, as is now the case. We are heartened that the subcommittee did review H.R. 443 and incorporated some of its provisions in their draft proposal.

Should Congress decide to cap the appropriations for the foster care program and/or make changes similar to the subcommittee’s proposal, we have the following comments, recommendations, and questions.

Adoption Assistance. We appreciate that the subcommittee’s draft proposal keeps the Title IV-E Adoption Assistance program as an open-ended entitlement and that tribes will be eligible to administer those funds. Adoption practice in Indian Country has been evolving, even without federal funds, to incorporate support for customary adoption practices and policies. The National Indian Child Welfare Association has been at the forefront of promoting this evolving practice and now has a manual with a model code that is being used in many tribal communities. Customary adoption is helping improve support for adoption in Indian Country and increasing the number of permanent placement options for American Indian and Alaska Native children.

Foster Care Maintenance. We are supportive of the provisions under the proposal that would make tribal governments eligible to receive funding under this program, including tribal consortium and the development of agreements with states. As stated above, however, we feel strongly that the best policy is to ‘keep the foster care maintenance program as an open-ended entitlement, especially in light of the bill eliminating the income requirement for the program. We also support the waiver authority for the Secretary of DHHS with regards to program requirements and data reporting. These provisions acknowledge the unique circumstances of tribal communities and service delivery systems while still protecting children and yielding important data. We also see that the proposal provides that a tribe that elects to operate this program must do so in the same manner as a state. Our understanding of this draft is that tribes will be developing their own codes and standards consistent with Title IV-E and IV-B. We agree with this approach, and many tribes have already developed codes, program policies, and foster care standards of this nature, which makes us confident that other tribes will also be able to do this. This approach will ensure that tribal codes and standards reflect tribal realities and help improve protections and outcomes for Indian children.

The subcommittee proposes that tribes would be eligible to receive 0.9% of the overall appropriation, which starts in year one at approximately $16.2 million. As stated earlier, the Congressional Budget Office score for H.R. 443 reaches $54 million at its peak after ten years. This considers full implementation of the program (maintenance, administration, and training) with an increase in the number of tribes coming into the program over several years. The subcommittee proposal only includes foster care maintenance funding, which currently makes up about 50% of the federal Title IV-E foster care dollar. Using these numbers and the available data that show Indian children are over-represented in the foster care system, it makes sense to increase the reserved amount to 2% of the overall appropriation for tribes. This would ease fears that the tribal children in different tribal areas would be left without any foster care support and that tribes would have to drain off other child welfare funds that could be used to prevent children from entering the foster care system in the first place.

The rollover provision in the Foster Care Maintenance section is another important provision for tribal governments, especially considering their lack of access to foster care funding historically. Being able to roll over funding would be very helpful as tribes work to fine tune their services and establish a foundation in foster care services.

Subsidized Guardianship and Child Welfare Waivers. The subcommittee has addressed subsidized guardianships by expanding the state waivers program. Tribes view guardianship as an important permanency option, as do many states that are currently supporting guardianship through state funds or have waivers targeting this permanency option. Unfortunately, tribes do not have funding to support guardianship and are not eligible to apply for waivers. Efforts to include tribes in state waiver projects have been very difficult and unsuccessful in most cases. We recommend that you consider support for guardianships in a manner similar to how the Pew Commission has recommended. If this is not possible, we would recommend that you make tribal governments eligible for the federal waiver program.

Match Requirements. With regard to the federal match requirements, we are in support of the subcommittee’s proposal to develop tribal medical assistant rates used in calculating the federal and tribal match rates for the foster care maintenance and adoption assistance programs. H.R. 443 included additional language that would have provided the Secretary of DHHS with authority to modify match rates for IV-E administration and training to take into consideration the extreme poverty that exists for most tribes and contributes to an inability to generate significant general revenues. Language in H.R. 443 would also allow tribes to utilize other related federal and state funding to satisfy their match, which is commonly done with other federal programs. This provision also considers the economic conditions of most tribes by recognizing that the only tribal income they may have comes from federal or state sources. Allowing federal and state sources for tribal match can also be done without supplanting funds. The subcommittee’s proposal reduces the federal match for the Foster Care Maintenance, Adoption Assistance, Safe Children, Strong Families program and Foster Care Crisis program under their proposal, which could have the effect of dramatically reducing the number of tribal applicants. Our recommendation would be to include the provisions under H.R. 443, mentioned above, and not to subject tribes to the reductions in federal match in the programs related to this in the proposal.

Safe Children, Strong Families Program. We are pleased that you included tribes as eligible for this program in the subcommittee’s proposal. As you know, tribal governments have been eligible for both of the Title IV-B programs (see description of tribal access in Background section). We like the flexibility that states and tribal governments are given to use this funding and the purposes for the grant program. We also like the waiver authority you have provided the Secretary of DHHS to examine plan requirements and determine if they are appropriate for tribal application and the ability of the Secretary to use a broader source of data to calculate the number of children in a tribe for determining funding allocations.

The subcommittee proposal would reserve for tribes up to 0.45% of the overall appropriation from the mandatory funding and 0.5% of the discretionary funding. In year one this would amount to approximately $17.5 million in mandatory funding and $2.6 million in discretionary funding. Under the current Title IV-B, Subpart 1 program, tribes receive approximately 1.75% of the overall appropriation. Under the current Title IV-B, Subpart 2 program, tribes receive 1% of the mandatory funding and 2% of the discretionary funding. To bring tribal programs up to the same level in service capacity that states are, we would recommend that the Safe Children, Strong Families grant program increase the amounts reserved for tribes to 1.5% for both the mandatory and discretionary programs. This would also be consistent with the need of tribal children for these services based upon the disproportionate number of these children in care and the minimal level of access tribal governments have had to these programs.

We are, however, very concerned about the bill's required 32% match rate for tribes and know it would effectively eliminate many, many tribes from applying for this program. The 2000 Census reports a 25.7% poverty rate nationally for Indians and Alaska Natives, and, of course, in some reservation areas, the poverty rate is much higher than that.

Foster Care Crisis and Challenge Grants. We support the concept of providing a contingency fund for states that have unexpected and unpreventable increases in foster care placements. Because of the variability of factors that can contribute to a spike in foster care placements, it is essential that there is a protective net to help vulnerable children. We noticed that tribes are not included in the Foster Care Crisis funding program and would recommend that you also make them eligible. We would also recommend making tribes eligible for the Challenge Grants authorized in this proposal. The draft bill should be amended to allow tribal governments to share in the rewards and incentives for improving outcomes for Indian children in the child welfare system in the same way that states are.

Regulations. H.R. 443 includes a provision that would ensure that DHHS consults with tribes and tribal organizations in the development of regulations. We did not see this language in the subcommittee’s draft but think it would be a valuable addition.

Definition of Tribe, Tribal Organization, and Reservation. The definition of tribes in the subcommittee’s proposal only includes tribes with a reservation and Alaska Native tribes. This should be modified, because tribes can exercise authority over non-reservation children, particularly through transfers from state court under current federal law and because tribes without a land base sometimes can join in consortia with tribes with a land base to provide services to their children. In addition, tribes without a land base have entered into agreements with states to define services and jurisdiction that have served Indian children, tribes, and states very well and this definition would create conflicts for those states and tribes. The best way to address this issue is to use the application process where a tribe includes information about its service area (federally designated) and not by excluding them from the definition itself.

If a reservation requirement is to be included, we recommend doing it outside the definition of tribe and defining reservation using the standardized definition within the Indian Child Welfare Act. The ICWA definition is:

Reservation is defined in ICWA as Indian Country as defined in 18 U.S.C. 1151 (that definition defines Indian Country as "(a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles of which have not been extinguished, including rights-of-way running through the same) and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.

If this approach is taken, however, we would recommend including the former reservations’ in Oklahoma language currently in the draft bill in addition to the Indian Child Welfare Act definition.

Court Oversight

We are glad that you acknowledge the critical role of court systems in ensuring permanency for children. In Indian Country, tribal juvenile courts also have an important role and are constantly working to improve their processes and outcomes even with little federal support. The court improvement projects that have been supported by Title IV-B funds have been very beneficial to states improving their outcomes for children in the child welfare system; however, tribes have not been eligible to receive these funds in the past. Improving tribal program support is very important, but tribal courts are integral partners in this effort too. We recommend that you make tribal courts eligible to share in the court enhancement funding under the subcommittee’s proposal.

Conclusion

We are very appreciative of the subcommittee’s efforts to include tribal governments in its proposal. Your support for increasing tribal capacity in child welfare is what is needed if we are to improve child welfare outcomes for American Indian and Alaska Native Children in this country. We understand that this is a draft proposal and that there will be more discussion, and welcome the opportunity to be part of this discussion. Indeed, the draft bill does need improvements with regard to its tribal provisions. The National Indian Child Welfare Association works closely with tribal governments across the country and national organizations, including the National Congress of American Indians, so we have the ability to be able to bring the issues in Indian Country to the subcommittee process. Thank you for your effort, and we look forward to working with you soon.

REFERENCES

Brown, E., Whitaker, L.S., Clifford, C., Limb, G., and Munoz, R. (2000). Tribal/state Title IV-E intergrovernmental agreements: Facilitating tribal access to federal resources. Seattle: Casey Family Programs.

Cross, T., Earle, K., Echo-Hawk Solie, H., & Manness, K. (2000). Cultural strengths and challenges in implementing a system of care model in American Indian communities. Systems of Care: Promising Practices in Children’s Mental Health, 2000 Series, Volume I. Washington, DC: Center for Effective Collaboration and Practice, American Institutes for Research.

Red Horse, J. G., Martinez, C., & Day, P. (2001). Family Preservation: A case study of Indian tribal policy. Seattle, WA: Casey Family Programs.

U.S. Department of Health and Human Services, Office of Inspector General. (1994). OEI-01-93-00110, Opportunities for ACF to improve child welfare services and protections for Native American children. August, 1994. Washington, DC: United States Government Printing Office.

The National Indian Child Welfare Association

The National Indian Child Welfare Association (NICWA) is a national, private non-profit organization dedicated to the well-being of American Indian children and families. We are the most comprehensive source of information on American Indian child welfare and work on behalf of Indian children and families. NICWA services include (1) professional training for tribal and urban Indian child welfare and mental health professionals; (2) consultation on child welfare and mental health program development; (3) facilitation of child abuse prevention efforts in tribal communities; (4) analysis and dissemination of public policy information that impacts Indian children and families; (5) development and dissemination of contemporary research specific to Native populations; and (6) assisting state, federal, and private agencies to improve the effectiveness of their services to Indian children and families.

In order to provide the best services possible to Indian children and families, NICWA has established mutually beneficial partnerships with agencies that promote effective child welfare and mental health services for children (e.g., Substance Abuse and Mental Health Services Administration, Indian Health Services, Administration for Children, Youth and Families, National Congress of American Indians, Federation of Families for Children’s Mental Health, and the Child Welfare League of America).

If you have questions regarding this testimony or other public policy issues impacting Indian children and families, please contact:

David Simmons

Director of Policy & Research

National Indian Child Welfare Association

5100 SW Macadam, Suite 300

Portland, OR 97239

Phone: 503-222-4044, ext. 119

Fax: 503-222-4007

E-Mail: desimmons@nicwa.org

Website: www.nicwa.org