Child and Family Policy Update
Child and Family Policy Update November 2021
U.S. Supreme Court Asked to Review Fifth Circuit Court of Appeals En Banc Decision in Brackeen v. Haaland ICWA Case
Following a decision in Brackeen v. Haaland Indian Child Welfare Act (ICWA) case from the Fifth Circuit Court of Appeals en banc (reviewed before all sitting judges within the federal circuit), four of the parties in the case filed petitions asking the United States Supreme Court to review the decision. On September 3, 2021, the federal government, four intervenor tribes, State of Texas, and private parties (adoptive and foster care parents) in the case all filed petitions asking for review. Following the filing of the petitions, three amicus briefs were filed supporting the federal government and tribal intervenors’ petitions. The three amicus briefs were filed by 25 states, 10 child welfare and adoption organizations, and 180 tribal nations and 35 Native organizations. NICWA is supporting the federal government and tribal intervenors in the case and issued press statements at the submission of the petitions asking for review and filing of the amicus briefs.
The next phases of the case will involve the U.S. Supreme Court (the Court) reviewing the petitions and coming to a decision on whether they want to accept the case for review and which issues in the Brackeen v. Haaland case they want to review. The Court is expected to issue a decision on whether they want to accept review of the case sometime between mid-December to mid-January. If they accept review, a briefing schedule will be established and a date for oral argument before the Court will be scheduled. NICWA will be monitoring these events closely with our Protect ICWA Campaign partners (National Congress of American Indians, Association on American Indian Affairs, and Native American Rights Fund) and will be providing updates as information is available. If the Court accepts review of the case, there will likely be a new round of amicus briefs developed and opportunities for tribal nations and Native organizations to sign on to an amicus brief supporting ICWA.
The Fifth Circuit Court of Appeals en banc decision, which took nearly 14 months to be issued, is 325 pages long and unusually complex compared to typical en banc decisions. The full decision is comprised of multiple individual decisions on different issues, two of which attracted a majority of the court and others that were evenly split with eight judges on each side. One large question before the court was whether ICWA was constitutionally based. A majority of the court found that ICWA was constitutionally based, citing Congress’s plenary power to enact legislation like ICWA for the benefit of Indian people. However, the court also found some specific requirements of ICWA, such as active efforts, qualified expert witness, and data collection requirements, in violation of the anti-commandeering doctrine of the U.S. Constitution that prohibits the federal government from commandeering, or requiring the use of state government resources for federal purposes, in this case namely state agencies. Nonetheless, the vast majority of ICWA requirements remain intact after the decision.
The application of the Fifth Circuit Court of Appeals en banc decision also has some complexity, but generally speaking the decision is not applicable outside the states within the jurisdiction of the Fifth Circuit Court of Appeals (Texas, Louisiana, and Mississippi). In addition, the decision is only binding upon federal courts, which don’t hear ICWA cases, and is not binding upon state courts. This will allow state courts within the Fifth Circuit to decide whether they will incorporate the decision. For now, this decision should not change ICWA’s current application in states outside the Fifth Circuit. For more information on the application of the decision, please see this decision tree. You can find additional case materials on this page.
Biden Administration Holding Tribal Nations Summit With Tribal Leadership
On November 15 and 16, 2021, the White House will be hosting their first ever Tribal Nations Summit. The Summit will be held virtually and all tribal nations are invited to attend. The Summit will provide tribal leadership with an opportunity to have discussions with high-level administration officials on a variety of policy issues. Tribal leaders can register here (registration ends on November 5, 2021). For questions, please send an email to TNS@who.eop.gov. Tribal leaders are encouraged to share their concerns and goals for the Biden Administration regarding protection and compliance with the Indian Child Welfare Act and related Indian child welfare issues. Besides protection and compliance with the Indian Child Welfare Act, NICWA also suggests sharing the need to restore the 2016 data elements on Native children and families that states were going to be required to submit to the federal government. These data elements were almost entirely eliminated in the last administration and are critical to better understanding how the Indian Child Welfare Act is working in state child welfare systems (see article below for more details).
Department of Interior and Congress Introduce Measures to Address Boarding School Experience
In June of 2021, Secretary Deb Haaland announced the Department of Interior’s (Department) initiative to collect and review Department information and records related to Indian boarding schools. The initiative comes after large numbers of unmarked graves of First Nations children at several residential school sites in Canada were discovered. Secretary Haaland recognized the need to “shed light on the unspoken traumas of the past.” The Department’s initiative will identify boarding school facilities and sites; the location of known and possible student burial sites located at or near school facilities; and the identities and tribal affiliations of children interred at such locations. The Department is expected to complete their investigation and publish a report by April of 2022. Estimates are that over 350 Indian boarding schools were operated in the United States in the nineteenth and twentieth centuries.
The Department will be holding tribal consultations on November 17, 18, and 23, 2021, to hear from tribal nations and tribal organizations on their thoughts and concerns regarding a number of topics related to the Department’s initiative. You can find a letter from the Department with more information on the initiative and opportunities to submit comments at the consultations here. Please note the consultation dates listed in the letter were rescheduled. You can find the link for the rescheduled dates and registration links here.
On September 30, 2021, Senator Elizabeth Warren and Representative Sharice Davids introduced companion bills (identical bills) entitled “Truth and Healing Commission on Indian Boarding School Policies Act.” The Senate bill is S. 2907 and the House of Representatives bill is H.R. 5444. The legislation establishes a commission to formally document and investigate Indian boarding school policies and practices in the United States. The commission members are appointed by Senate and House of Representatives leadership and the president. The legislation also establishes an advisory committee to provide advice and recommendations to the commission that is comprised of representatives that include, but are not limited to:
- National Indian organizations with expertise in child welfare, education, and boarding school issues
- Federal agencies, such as Bureau of Indian Affairs Education, Office of Indian Education in Department of Indian Affairs, and Commissioner of Administration for Native Americans
- Members of federally recognized tribes and Native Hawaiian organizations
- Mental health, health care, or Native healing practitioners that have experience working with descendants of board school students
- Family members of students that attended boarding schools, current teachers, and students that have attended a boarding school in the past or currently are attending one
The Commission will be holding public hearings to gather evidence and will be making recommendations on how to address and heal the historical and intergenerational trauma caused by the Indian boarding school policies and practices. The Commission will also collaborate and exchange information with the Department of Interior during its investigation.
Tribes and advocates for Native children and families are encouraged to contact your congressional representatives and urge them to sign on as co-sponsors to the legislation. You can find contact information for your congressional representatives here.
Senate Committee Passes Child Abuse Prevention and Treatment Act Legislation with Increased Funding for Tribes
On March 16, 2021, the House of Representatives passed the Stronger Child Abuse Prevention and Treatment Act (H.R. 485). The legislation reauthorizes the Child Abuse Prevention and Treatment Act (CAPTA—P.L. 93-247) and addresses some of the challenges tribes have had accessing the Community-Based Child Abuse Prevention grant program under this law, as well as supporting a study of culturally based child abuse and neglect strategies that tribal communities have successfully employed. Congressman Bobby Scott (D-VA), with several co-sponsors, including Congressman Raul Grijalva (D-AZ) who has championed the tribal provisions, worked to ensure tribal grants were increased within the bill and support for additional data on tribal efforts in child abuse and neglect prevention.
Senators Warren and Murkowski introduced a Senate bill not long after the House passed their CAPTA bill that specifically addresses issues for tribes under CAPTA (S. 1868). The Senate legislation contains similar provisions for tribes that were contained in the House-passed bill, H.R. 485, such as increasing the set-aside for tribes from the CAPTA Community-Based Child Abuse Prevention grant program. Following the introduction of the Warren-Murkowski bill, the Senate Health, Education, Labor, and Pensions Committee approved a more comprehensive CAPTA reauthorization bill (S. 1927) that contains most of the provisions in the Warren-Murkowski legislation. The next step is scheduling a vote on the bill before the full Senate. If the full Senate approves the legislation, it will go to conference with the House where they will work out the differences and send a revised bill to both House and Senate for final approval.
The Child Abuse Prevention and Treatment Act is the federal government’s primary source of targeted funding for child abuse and neglect prevention. It includes funding to support child abuse and neglect prevention programs, services, research, and demonstration projects. In the Senate and House legislation currently, the tribal set-aside for supporting community-based grants to address child abuse and neglect prevention has been increased from 1% to 5%. The current 1% set-aside has only funded a couple of tribal grant programs each three-year grant cycle. The other opportunity for tribal nations is a study authorized under the legislation that would be conducted by the Government Accountability Office in coordination with tribes to examine some of the challenges that tribes have to obtain funding for child abuse and neglect prevention services, promising practices that tribes are using, and barriers to improved data collection. A study like this has never been conducted and could be very helpful in supporting advocacy to increase funding for child abuse and neglect prevention programs for tribes.
NICWA is working with members of the Senate on continuing and building support for S. 1927. We encourage you to contact your senators to support S. 1927 as it moves to the full Senate for consideration. You can find contact information for your congressional representatives here.
NICWA President Provides Testimony at Hearing Before Senate Committee on Indian Affairs on Native American Child Protection Act
On July 21, 2021, the Senate Committee on Indian Affairs held a hearing on the Native American Child Protection Act (S. 2326). This legislation is similar to an earlier bill, H.R. 1688, that was approved by the House of Representatives. Giving testimony at the hearing was Gil Vigil, president of the National Indian Child Welfare Association. In his testimony, President Vigil discussed how Indian Country has a long history of using their culture as the basis for helping keep children safe and preventing child abuse and neglect. “Our natural helping systems in our communities use our culture, teachings, and extended families to keep children safe and strengthen our families. When we have the resources, our communities have shown that they can develop and operate some of the most successful child abuse and neglect prevention programs anywhere in the nation.” President Vigil also noted the inequity in access to funding for child abuse and neglect prevention between the tribes and states and how this has stymied tribal efforts to address child abuse and neglect. NICWA is hopeful that the Senate Committee on Indian Affairs will approve S. 2326 and the full Senate will pass the legislation so it can become law this year.
The House legislation reauthorizes two different grant programs for tribes and funding for a resource center focused on child maltreatment and family violence under the Indian Child Protection and Family Violence Prevention Act (P.L. 1010-630). The legislation not only reauthorizes the grant programs and resource center funding but also significantly increases the authorization levels to $93 million. The current authorizations for the grant programs have not changed since the legislation was enacted in 1990 and have been outpaced by increases in the cost of providing prevention services. In addition, the legislation was last reauthorized in 2010 and is overdue to be reauthorized.
NICWA is working with tribes and Indian organizations to seek support from Senate members on S. 2326 and is encouraging you to contact your senators and ask them to support the legislation as it moves through the Senate. This is one of NICWA’s top policy priorities in 2021 and we need your help to get this through Congress this year. You can find contact information for your congressional representatives here.
COVID-19 Relief Bill May Have Opportunities to Support Child Welfare Needs
On March 11, 2021, President Biden signed into law the American Rescue Plan of 2021 (P.L. 117-2). The legislation was first approved by the House, then amended and approved by the Senate, then approved with Senate amendments by the House. The legislation provides a variety of relief benefits and boosts to existing federal programs to address impacts from the pandemic. This is the sixth COVID relief bill that Congress has passed since the beginning of the pandemic and is second in terms of the overall cost at $1.9 trillion (the first was the $2.2 trillion package that passed on March 27, 2020).
While the legislation has several important benefits for individuals and families, it contains fewer child welfare provisions than in the last relief bill. Key provisions focus on stimulus checks for individuals and families and relief funding for states, tribes, and local and municipal governments. The relief funding for tribal governments can be used for COVID-related child welfare purposes. If you have questions about this, please contact David Simmons at email@example.com.
Key provisions in the law include the following:
- Increases to Child Abuse Prevention and Treatment Act grant funding—$100 million in additional funds for the state grant programs and $250 million additional for Community-Based Child Abuse Prevention (CBCAP) grant program (tribes eligible for CBCAP grant program).
- The Maternal, Infant, and Early Childhood Home Visiting Program received an additional $150 million (tribes are eligible for this program).
- Stimulus checks for individuals and families of up to $1,400 per person were included. The full amount of the checks begin to phase out when individuals have income above $75,000 per year, heads of households have income over $112,500 per year (single parents), and married couples have income above $150,000 per year.
- A boost in unemployment benefits by $300 per week through September 6, 2021; the first $10,200 of benefits are tax free for households with less than $150,000 of income per year.
- Aid to states, tribes, territories, and local governments ($350 billion). Tribes will be eligible for $20 billion in aid.
- Enhanced supplemental nutrition benefits. The 15% increase in SNAP program benefits (Supplemental Nutrition Assistance Program, formerly known as food stamps) for eligible recipients will be extended through September 2021. The Special Supplemental Nutrition Program for Women, Infants, and Children will receive an additional $880 million to improve participation and benefits temporarily. States will also be able to continue the Pandemic EBT program through the summer that provides free and reduced-priced meals to eligible children who are in schools that are closed. An additional $1.4 billion funding for nutrition programs for seniors that fall under the Older Americans Act was included.
- States and local governments will receive $20 billion for housing assistance to help renters that need help paying their rental payments. A portion of the funding will also be available for homeowners that need assistance paying their mortgages. An additional $4.5 billion for the Low Income Housing Energy Assistance Program to help income eligible persons pay their utility bills was included. An additional $5 billion for states and local governments to help those at-risk of becoming homeless secure housing and $5 billion for helping those who are homeless locate housing was included.
- Expansion of the federal Child Tax Credit to $3,600 for each child under six years of age and $3,000 for each child under 18 years of age. This is available for single parents with incomes under $75,000 and two-parent households with incomes under $150,000. In addition, the tax credit is fully refundable. Parents can receive the benefit monthly or in a lump sum each year.
- The Earned Income Tax Credit is expanded for individuals without children by almost threefold, the minimum age to claim the credit is dropped to age 19, and the upper age limit is eliminated.
- Schools receive additional support with an additional $125 billion for K-12 schools that are working to return children and youth to in-person instruction. Almost $40 billion is reserved for colleges and universities to support emergency financial aid and defraying costs related to declining enrollment and increased costs related to keeping students safe during the pandemic.
- An additional $39 billion for childcare providers to help pay operating costs, support families who are struggling to meet childcare expenses, and purchase personal protective equipment and related supplies was included.
Key provisions for tribal nations and American Indian and Alaska Native people in the law include:
- Over $772 million for tribal government services (i.e., general assistance, assistance to tribal governments, public safety, and child welfare).
- Over $6 billion for Native health systems including $420 million for mental health and behavioral health services under Indian Health Services. In addition, $140 million for improving technology and telehealth access.
- An additional $1.2 billion for Housing and Urban Development (HUD) tribal and Native Hawaiian housing programs ($498 million for Homeowners Assistance Program for Tribes and Native housing programs, $450 million for the Indian Housing Block Grant, and $280 million for the Indian Community Development Block Grant).
- An additional $1.1 billion for Native education programs, including Bureau of Indian Education schools, tribal education agencies, tribal colleges and universities, and Alaska Native education programs.
- An additional $1 billion for tribal childcare programs and supports and $75 million for Temporary Assistance to Needy Families benefits through the Pandemic Emergency Assistance Fund.
- An additional $100 million for critical infrastructure projects in tribal communities.
- An additional $20 million for a new emergency Native language preservation and maintenance grant program through the Administration for Native Americans to mitigate impacts of COVID-19 on Native language communities.
- An additional $19 million for tribal communities’ efforts to combat domestic violence through the
- Family Violence Prevention & Services Act ($18 million) and “Stronghearts” Native Domestic Violence Hotline ($1 million).
- Increases to the Maternal, Infant, and Early Childhood Program and Child Abuse Prevention and Treatment, Community-Based grant programs saw increases that will also benefit tribal grantees.
Children’s Bureau Issues Guidance to Allow Some Cultural Adaptations in Evidenced-Based Prevention Services
On January 13, 2021, the Children’s Bureau released an Information Memorandum (IM) that provides new guidance on the use of cultural adaptations to approved evidence-based prevention services (see ACYF-CB-IM-21-04) under Title IV-E of the Social Security Act (also known as Title IV-E program). Prevention services under the Title IV-E program include mental health services, parent training, and substance abuse prevention and treatment. Prevention services are a new component of the Title IV-E program that was authorized in 2018 under the Family First Prevention Services Act (P.L. 115-123, Division E, Title VII).
The IM clarifies that states and tribes that are in agreements to operate the Title IV-E Program may seek reimbursement for certain adapted (culturally or otherwise) prevention services and programs already approved by the Title IV-E Prevention Services Clearinghouse. Allowable adaptations are discussed in the IM, along with more substantial adaptations that will not be allowed to seek reimbursement.
In the IM, the Children’s Bureau recognizes the importance of providing cultural services to AI/AN children and families to address longstanding disparities and disproportionality affecting AI/AN families and urges states to consult with tribes to develop plans for culturally adapting prevention services and programs. This policy clarification opens the door for states and tribes to work together to develop prevention services that are more culturally appropriate and eligible for funding support under the Title IV-E program.
Tribes and Advocacy Organizations File Lawsuit Challenging Elimination of Native Data Elements
On August 27, 2020, a coalition of tribes and advocacy organizations filed a lawsuit in the Federal District Court in the Northern District of California claiming the removal of Adoption and Foster Care Analysis Reporting System (AFCARS) data elements by the Trump Administration for American Indian and Alaska Native and LGBTQ+ children was unlawful. The plaintiffs include the California Tribal Family Coalition, Yurok Tribe, Cherokee Nation, Facing Foster Care in Alaska, Ruth Ellis Center, Ark of Freedom Alliance, and True Colors. The lawsuit asserts that the U.S. Department of Health and Human Services, Administration for Children and Families violated the Administrative Procedures Act when the agency issued its May 12, 2020, AFCARS Final Rule. The Final Rule eliminated over 85% percent of the previous 60-plus AFCARS data elements for American Indian and Alaska Native children established in the 2016 AFCARS Final Rule, which provided critical data elements including the first-ever data on requirements of the Indian Child Welfare Act (ICWA). AFCARS is the federal government’s largest source of data on children who are in out-of-home placement.
The remaining ICWA data elements in the 2020 AFCARS Final Rule include the following:
- Whether inquiries were made regarding if the child is an Indian child under ICWA.
- Whether ICWA applies for the child and the date that the state title IV-E agency was notified by the Indian tribe or state or tribal court that ICWA applies.
- Whether notification to the child’s tribe of state child custody proceedings occurred.
- The tribal affiliation of the child, birth mother, birth father, foster parents, adoptive parents, and legal guardian.
NICWA has led efforts since the early 1990s to include ICWA data elements in AFCARS and has previously provided testimony and comments promoting the critical importance of new data elements in AFCARS to address disparities in outcomes and disproportionality in state foster care systems for American Indian and Alaska Native children. Of important note, ICWA is the only major federal child welfare law that does not have a structured and regular data collection system that tracks implementation.
While the lawsuit continues to move forward, NICWA urges tribes to consult with their state child welfare agency on how they will be implementing the remaining ICWA data elements and encourage them to collect data on all of the previous 60 data elements. The new Biden-Harris Administration will also be looking to hear from tribes on their position with regards to restoring the 2016 data elements, so NICWA encourages tribal nations to share their thoughts with DHHS leadership.
FY 2022 Budget from Biden Administration Proposes Increases to Tribal Child Welfare
During the transition from one president to the next, the federal budget process can look a little different than in other years and it can take longer for the new president to release their budget, which in most years comes out in February. In FY 2022 this was the case as the Biden Administration’s budget request was not available in more detail until May/June of 2021. The new president’s budget proposes a number of increases to child welfare programs that tribes administer. While the president’s budget request is a set of recommendations, Congress often gives consideration to these numbers as they determine what the final appropriation levels will be. Congress has until September 30, 2021, to appropriate funding for FY 2022 unless they pass a continuing resolution that extends federal funding for a temporary time until they can pass a final bill.
President Biden’s FY 2022 budget recommendations include:
- Bureau of Indian Affairs, Social Services—$63.3 million (increase of $12.1 million over FY 2021 enacted)
- Bureau of Indian Affairs, Welfare Assistance—$77.9 million (decrease of $0.6 million under FY 2021 enacted)
- Bureau of Indian Affairs, Indian Child Welfare Act On-Reservation—$16.9 million* (same level as FY 2021 enacted).
- Bureau of Indian Affairs, Indian Child Welfare Act Off-Reservation—$2 million* ($1 million over FY 2021 enacted).
- Bureau of Indian Affairs, Human Services Tribal Design (Tiwahe Initiative)—$290,000 (same level as 2021 enacted).
- Administration for Children and Families, Child Abuse Prevention and Treatment Act, Community-Based Child Abuse Prevention (set-aside for tribal funding)—$80 million (increase of $19.4 million over FY 2021 enacted).
- Administration for Children and Families, Title IV-B Subpart 1, Child Welfare Services (reserved funding for tribes)—$275 million (increase of $6.3 million over FY 2021 enacted).
- Administration for Children and Families, Title IV-B Subpart 2, Promoting Safe and Stable Families (set-aside for tribal funding)—$451 million (increase of $43,2 million over FY 2021 enacted).
* The president’s FY 2022 budget for Indian Child Welfare Act On-Reservation and Off-Reservation programs lacks detail about the specific budget requests under these two programs. The information above is NICWA’s best sense of what the requests are for each program. For more information, please contact the Bureau of Indian Affairs, Division of Human Services.
For more information relating to this update, please contact NICWA Government Affairs Director David Simmons at firstname.lastname@example.org.
For more information relating to this update, please contact NICWA Government Affairs Director David Simmons at email@example.com.
Each year NICWA identifies policy priorities that will guide our efforts and focus our resources during the calendar year. To view the NICWA 2021 Policy Priorities, click here.