Child and Family Policy Update

August 2020

Hot Topics

Senate Democrats Introduce Emergency Child Welfare Legislation to Address COVID-19

On July 2, 2020 Senators Brown, Harris, Casey, and Cortez Masto introduced the Child Welfare Emergency Assistance Act (S. 4172). The legislation responds to a variety of critical needs that children and families in tribal and state child welfare systems have as a result of COVID-19. The legislation provides funding for tribes and states and modifies existing federal child welfare policies to reduce barriers for children and families. The legislation contains the following provisions:

  • $60 million for eligible tribes, tribal organizations, and tribal consortia under Title IV-B of the Social Security Act (3% set-aside). No matching funds required.
  • States, tribes, tribal organizations, and tribal consortia have until July 1, 2022 to obligate the funds, which must be used by September 30, 2022.
  • The funds may be used for a variety of child welfare purposes under Title IV-B with requirement that they address COVID-19 issues. This include, but are not limited to, kinship placement support services, child welfare services, adoption promotion and support services, and development and training for case workers.
  • Additional funding ($30 million) for states and tribes to support kinship navigator programs and services. No matching funds required.
  • States, tribes, tribal organizations, and tribal consortia have until July 1, 2022 to obligate the funds, which must be used by September 30, 2022.
  • The funds may be used to help kin caregivers improve their access to resources and helping kin caregivers care for children outside of the foster care system.
  • $750,000 for eligible tribes, tribal organizations, and tribal consortia under the John F. Chafee Foster Care program (youth aging out of foster care). No matching funds required and the funds are available through September 30, 2023.
  • The funding can be used for eligible services under the Chafee program and direct payments to foster care youth for basic services and needs.
  • $5 million for eligible tribes, tribal organizations, and tribal consortia to support tribal court improvement programs (funding provided to tribes funded under this program in FY 2020).
  • Eligible tribes, tribal organizations, and tribal consortia have until July 1, 2022 to obligate the funds, which must be used by September 30, 2022. There is no match requirement for the funds.
  • $5 million will be reserved for tribes, tribal organizations, and tribal consortia for health oversight and coordination. These funds will be divided among tribes and tribal consortia that receive funds under Title IV-B Subpart 1 and operate a Title IV-E program in FY 2020 (direct funded programs). For tribes that operate Title IV-B, but not Title IV-E, their will be competitive grant process.
  • Waive requirement under Title IV-E Guardianship Assistance Program that requires a child live in the home of a prospective relative guardian who was a licensed foster home.
  • During the period from February 1, 2020 to September, 30 2022 any child that exits foster care because of age will be provided notice they may re-enter foster care regardless of whether the state or tribe has chosen to extend foster care for youth beyond age 18.
  • The federal matching rate for Title IV-E Guardianship Assistance Program and Adoption Assistance will be increased to 100% from March 31, 2020 to October 1, 2022.
  • The Court Improvement Program will be reauthorized with an increase for tribal court improvement programs to $5 million.
  • During fiscal years 2020 to 2022 states and tribes will be eligible for grant funding to train on de-escalation strategies with families that come into contact with law enforcement and improve collaboration between law enforcement, caseworkers, and other child welfare staff.

No House companion bill has been introduced, but Senate supporters will be working with their Senate Republican colleagues to explore opportunities to include some or all of the provisions in the next COVID-19 relief legislation.

President Issues Executive Order on Strengthening Child Welfare Systems

On June 24, 2020, President Trump issued an executive order (EO) on strengthening the child welfare system. The EO recognizes that every child deserves a family, that prevention efforts to reduce out-of-home placement need to be strengthened, and that foster children, especially those who age out of the foster care system, face serious challenges to securing a permanent home. In response, the president is proposing several actions by his administration to address these challenges. They include the following actions:

  • Encouraging robust partnerships between state agencies and public, private, faith-based, and community organizations—The EO proposes to increase public access to accurate, up-to-date information. This includes a report on the numbers of children in care, patterns of entry into the system, how many are waiting for adoption, and data related to preserving sibling connections. It also requires the Department of Health and Human Services (DHHS) to provide options for collecting more data through the Child and Family Service Reviews on a number of data elements related to children in out-of-home care, including demographic data. Lastly, it requires DHHS to issue guidance on partnering with non-governmental agencies and makes it clear that these organizations should be eligible to partner on Title IV-E programs and services on an equal basis.
  • Improving access to adequate resources for caregivers and youth—The EO requires DHHS to promote dissemination of the National Training and Development Curriculum for Foster and Adoptive Parents with states (and presumably tribes). The EO also promotes availability of trauma-informed training developed by the National Adoption Competency Mental Health Training Initiative and information to support guardianship through the Title IV-E program. Lastly, DHHS will be required to develop a plan on how to reduce barriers to accessing federal benefits and assistance for kinship care providers and youth aging out of the foster care system.
  • Ensuring equality of treatment and access for all families—DHHS will be required to conduct a study of the implementation of the Multi-Ethnic Placement Act of 1994 as amended (P.L. 103-382, Section 553; see DHHS Office of Civil Rights Description). This law prohibits delays or denial regarding placement of children in foster care or adoptive homes based upon race, color, or national origin. DHHS will be required to update guidance as necessary and publish guidance regarding the rights of parents, prospective parents, and children with disabilities.
  • Improve processes to prevent unnecessary removal and secure permanency for children—The EO requires DHHS to expand the current Child and Family Services Reviews to assess reasonable efforts to prevent removal, filing of termination of parental rights petitions within federal statutory timelines, assess reasonable efforts made to finalize permanency plans for children, and competition of required family search and notifications to relatives and how efforts are viewed by the courts. DHHS is also required to use their authority where statutory requirements are not met to withhold federal assistance and track state performance regarding permanency outcomes. DHHS is also required to develop guidance regarding flexibility in the use of federal funds to support high-quality legal representation for parents and children. Lastly, DHHS will collect individual states’ standards for assessing risk and safety and then outline reasonable best practice standards in this area, including how to address substance abuse and domestic violence.

The EO contains a number of potentially beneficial provisions for American Indian and Alaska Native (AI/AN) children and families, such as improving access to data collection, improving support for partnerships, access to resources and training, reducing barriers to guardianship placements, and tracking efforts to meet federal statutory requirements, such as notification of relatives in child welfare proceedings. In addition, the EO states that implementation of the Indian Child Welfare Act should not be altered or replace tribal consultation processes. However, the emphasis on collecting data and using data to improve permanency for children raises the question of why this administration published a final rule in May 2020 that struck 85% of the existing data elements concerning AI/AN children, families, and caregivers from the Adoption and Foster Care Analysis Reporting System (AFCARS). There are also questions about how the current administration will involve tribes in the efforts to carry out the EO and assess the appropriateness of resources they promote for AI/AN populations. Tribes are encouraged to talk with DHHS officials at the Children’s Bureau to better understand their plans for implementation of the EO and how tribes can be involved.

Children’s Bureau Disseminates Letter Regarding Termination of Parental Rights During Pandemic

On June 23, 2020, the Children’s Bureau under DHHS disseminated a letter to state and tribal child welfare leaders clarifying federal requirements under Title IV-E of the Social Security Act pertaining to termination of parental rights. In this letter, the Children’s Bureau emphasizes that the filing of a petition for termination of parental rights has far-reaching ramifications for children and families in child welfare proceedings and every effort should be made to ensure that petitions are only filed when appropriate. The letter goes on to say that the Children’s Bureau recognizes that during this pandemic, services to help families reunify with their children have often been impeded, and that the federal law provides flexibility to not file termination of parental rights petitions when it is not in the best interests of the child or when services included in the case plan designed to support the safe return of the child to the home have not been provided. The Children’s Bureau also encourages states and tribes to seek alternative methods of providing services when more conventional methods are not available and links to their COVID-19 website, which has guidance on the use of federal funds and available flexibility during the pandemic. Lastly, the Children’s Bureau urges states and tribes to provide support to adoptive families, recognizing that some of them may also be experiencing additional stressors during this time.

NICWA strongly urges tribal and state practitioners to read this letter and discuss it with their tribal or state counterparts to ensure that all appropriate flexibility is being extending to AI/AN children and families in state child welfare systems. It is also important to remember that the Indian Child Welfare Act contains higher legal requirements for termination of parental rights proceedings, and these requirements are not modified or superseded by other federal child welfare laws.

Phase III COVID-19 Legislation Contains Support for Human Services Programs

On March 27, 2020, the president signed into the law the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). The new law contains almost $2 trillion of funding to provide support to individuals, governments, and businesses impacted by COVID-19. The legislation also provides approximately $10 billion of funding for tribal citizens, governments, urban Indian organizations, and tribal businesses impacted by COVID-19 through different programs and funding mechanisms. The biggest source of funding in the legislation for tribal and state governments comes from the Coronavirus Relief Fund at $150 billion, which has $8 billion reserved for tribes. The funds under this fund can be used for costs that are necessary to address COVID-19.

The CARES Act is the third bill that Congress has passed since early March to address impacts by from the COVID-19 pandemic. Highlights of the legislation include funding for individual payments to taxpayers, expansion of unemployment benefits, student loan forbearance, food for food banks, loans and grants to small and large businesses, funding for hospitals and health providers, and funding to stabilize state, tribal, and local governments.

The first bill, H.R. 6074 (Phase I), contained $8.3 billion of emergency funding to address the prevention and treatment of COVID-19 focusing on support for testing, vaccine development, and additional costs for state and local health department staffing and supplies. Tribes were allocated $40 million under the Phase I bill through the Centers for Disease Control, but the process of getting these funds out to tribes has been slow and overly complex according to many tribal health advocates. The second bill, H.R. 6201 (Phase II), contained $100 billion of aid for paid sick leave, free coronavirus testing, expanded food assistance, additional unemployment benefits, and requirements that employers provide additional protection for healthcare workers. Tribal funding under the Phase II legislation included $64 million for the Indian Health Service and a $10 million set-aside for Older Americans Act grants in Indian Country (for nutrition and other direct services).

In the Phase III legislation tribal funding is much more extensive than in the previous bills. There is funding for economic development, employment, tribal governance, human services, housing, health, education, and nutrition programming. You can find a summary of the tribal provisions here. Tribal human services funding in the legislation includes the following:

  • $453 million in additional Bureau of Indian Affairs (BIA) Operation of Indian Programs funding with $450 million reserved for direct tribal programs (638 contracted or self-governance). The remaining $3 million is for BIA operations. The funding includes BIA programs under the Human Services category such as Welfare Assistance (General Assistance, Emergency Assistance, Burial Assistance, Adult Care Assistance, and Child Assistance), Indian Child Welfare Act On-Reservation Grants, Social Services, Tiwahe Initiative (Human Service Tribal Design), and Housing Improvement Program.[1]
  • $4.5 million for tribal domestic violence shelters through the Family Violence and Prevention Services Act (10 percent tribal set-aside from $45 million overall).
  • $45 million in additional Title IV-B Subpart One funds. Tribes and states receive these child welfare funds that are very flexible in terms of the child welfare services that can be funded. How much of the funds will be allocated to tribes is unclear. The Title IV-B statute provides for funds to be available for tribal governments but does not contain a specific set-aside. The new funds represent about 16% of the FY 2020 appropriated levels, and tribes received about $5 million in that year, so the likely the increase for tribes will be small in comparison ($850,000 estimated).
  • $3.5 billion for the Child Care and Developmental Block Grant. The statute contains a tribal set-aside of at least 2% with discretion for the Department of Health and Human Services to increase the set-aside if funding is increased. Currently, the set-aside is 2.5%; using this figure, tribes would be eligible for approximately $87.5 million.
  • $750 million for Head Start programs nationally. There are over 155 tribal communities that operate Indian Head Start programs, and while the legislation does not specify how much of the funding will go to these programs, there will likely be funds allocated to existing programs in Indian Country.
  • $250 million for the Community Behavioral Health Clinic Expansion Grant program, which includes $15 million allocated to tribes,tribal organizations, or health or behavioral health service providers to tribes. This $250 million allocation includes at least $50 million for suicide prevention programs.
  • $100 million for Indian Community Development Block Grants. This funding pays for infrastructure development and some human services.

There are a number of other human service-related programs funded in the Phase III legislation, many of which tribes do not receive direct allocations from, but have potential for Native people in general. You can find a summary of these here.

NICWA has been working closely with both Native and non-Native advocacy organizations to advocate for additional resources and program flexibility in federal legislation addressing COVID-19 (Phase III and the upcoming Phase IV). We are also involved in working with federal agencies and educating tribal leadership and program directors on how to implement recently enacted human service provisions in the Phase III legislation. Currently, we are reaching out to tribal and urban Indian human services directors to identify concerns related to COVID-19 and developing written information and webinars to respond to respond to these issues. NICWA provided the first in a series of webinars on COVID-19 impacts to tribal human services programs on March 19 and has launched a page on our website dedicated to COVID-19 resources for tribal leadership and human services staff. The webpage is https://www.nicwa.org/coronavirus/. We will continue to send out Constant Contact emails and post information on our social media platforms as well. We have also been using our communications expertise to raise awareness of human service issues that impact Native children and families with the media (see Truthout article here). If you have any questions or would like to share your experiences with COVID-19, please contact NICWA Government Affairs and Advocacy Director David Simmons at desimmons@nicwa.org.

AFCARS Final Rule Eliminates Over 50 ICWA Data Elements

On May 12, 2020, the Department of Health and Human Services (DHHS) published their Adoption and Foster Care Analysis Reporting System (AFCARS) final rule eliminating all but a handful of the previous 60 Indian Child Welfare Act (ICWA) data elements established during the Obama Administration 2016 AFCARS Final Rule. Advocates for American Indian and Alaska Native children who have worked for decades to increase the number of data elements for this population were shocked at the current Administration’s policy change, especially in light of the huge disparities and disproportionality that this population faces in state child welfare systems. “It defies reason to decrease data collection for American Indian and Alaska children and families as they face immense obstacles in state child welfare systems across the nation, especially when you consider that many states were in support of the ICWA data elements,” said David Simmons, government affairs and advocacy director of the NICWA. DHHS’s primary reasons for eliminating the ICWA data elements were the perceived burden to states to collect the new data and questioning the value and relevance of the data to the Title IV-E Foster Care and Adoption Assistance program that provides the authority to collect AFCARS data for children in out of home care. Ironically, these same issues were addressed in detail in the 2016 Final Rule that established the new ICWA data elements for Native children and families, but the current administration did not accept the rationale and data supporting the 2016 ICWA data elements.

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 is urging 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.

Legislative 

Senators Introduce Legislation to Support Native Families

U.S. Senators Lisa Murkowski (R-AK), Joe Manchin (D-WV), and Kyrsten Sinema (D-AZ) introduced the Emergency Family Stabilization Act on June 9, 2020 (S. 3923). The legislation provides $800 million of one-time, emergency funding for states and tribes to support children and families experiencing homelessness, including a 10% set-aside for American Indian and Alaska Native tribal governments ($80 million). Off-reservation Indian organizations are specifically mentioned as eligible for the funding through provisions that would make grants to local, public or private, non-profit organizations. The legislation recognizes the impact COVID-19 has had upon communities and families across the country and the increased vulnerability that homeless families and youth as a result. The tribal funding also allows for services and supports related to domestic violence, human trafficking, disabilities, and child safety issues within families and youth that are experiencing homelessness. The Secretary of the Department of Health and Human Services is also authorized to waive selected requirements for Indian tribes or tribal organizations.

“The COVID-19 pandemic has increased threats to American Indian and Alaska Native children, youth, and their families’ well-being. Increasing numbers of tribal children, youth, and families face the risk of becoming homeless, experiencing domestic violence and/or child abuse or neglect, or becoming victims of human trafficking. We applaud Senator Murkowski for recognizing the increased threats to our communities during this pandemic and introducing the Emergency Family Stabilization Act that provides vital resources for tribal governments to address these challenges. Our tribal programs, many of which are in remote, rural locations, often don’t have adequate resources to fight these threats to our communities. This legislation recognizes this by providing funding that is specifically for tribal governments,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association.

NICWA is encouraging tribal governments and advocates to reach out to their senators to express their support for S. 3923. Please ask your senators to co-sponsor the legislation and think about how it can be included in any future COVID-19 relief legislation that Congress considers.

HEROES Act Includes Funding For Tribal Social Services Impacted by COVID-19

The House of Representatives approved their next round of COVID-19 relief measures on May 15, 2020, in the form of the Health and Economic Recovery Omnibus Emergency Solutions Act (HEROES Act, H.R. 6800). The legislation contains numerous funding provisions, including one that would provide emergency funding from the Social Services Block Grant (SSBG) to states and tribes to address COVID-19 impacts in social services (Section 100201). The funding provision would provide one-time grants to tribes that are currently Low Income Home Energy Assistance Program (LIHEAP) or Community Service Block Grant (CSBG) grantees. Currently, there are almost 300 tribes receiving LIHEAP funds and close to 60 tribes receiving CSBG funds. The SSBG funding reserved for tribal grantees is $400,000,000 and can be spent through December 31, 2021. Another stand-alone bill introduced in the House of Representatives (H.R. 6862) also contains the same tribal Social Services Block Grant funding provision contained in the HEROES Act.

The Social Services Block Grant was established in 1981 (currently funded at $1.7 billion annually) and uses tribal populations to determine state allocations, but tribes have never been eligible to receive the funding directly. States use the funding to fill gaps in federal and state funding in areas such as domestic violence, child welfare, disabilities, and other social services. NICWA has been advocating for tribal eligibility to the SSBG since 1988 to address the inequities in access to federal funds that tribes face and provide much needed support for basic social services in their communities.

NICWA is encouraging tribal governments and advocates to reach out to their senators to express their support for language that provides tribal governments eligibility to receive SSBG funding similar to the approaches taken in H.R. 6800 and H.R. 6882. Please ask your senators to support the tribal SSBG provisions and think about how it can be included in any future COVID-19 relief legislation that Congress considers.

Administrative Policy

Administration for Children and Families Releases Guidance on Family First Prevention Services Act

The Administration for Children and Families (ACF) published a substantial portion of expected federal guidance on the Family First Prevention Services Act (Family First) on November 30, 2019 (ACYF-CB-PI-18-10). The guidance instructs tribes on how to implement many sections of the new law, including what qualifies as eligible prevention services for children and families being served in the child welfare system. The Family First statute requires ACF to specify specific tribal requirements and criteria related to the provision of prevention services contained within the law and allowing the use of cultural services unique to the tribal community being served. Overall, the new guidance provides tribes that are operating the Title IV-E Foster Care program directly through the federal government with significant flexibility regarding the use of cultural services to help prevent removal of children either prior to or after reunification with their family, as well as services to help the child’s parents rehabilitate in these situations. For tribes operating the Title IV-E program through an agreement with a state or for tribes not operating the Title IV-E program, there is currently less flexibility. Opportunities still exist to access the funds. For more information on Family First, please refer to a document that NICWA published with several other leading child welfare organizations in late 2019. The document is entitled “Implementing the Family First Prevention Services Act: A Technical Guide for Agencies, Policymakers and Other Stakeholders,” and you can find a copy of the document here.

For tribes operating the Title IV-E program through an agreement with a state or tribes not operating the Title IV-E program, there is currently less flexibility. Opportunities still exist to access the funds. The Administration, in their FY 2021 budget proposal to Congress, proposed extending guidance and flexibility that provides tribes operating the Title IV-E program directly through the federal government to tribes operating the Title IV-E program through an agreement with a state (see FY 2021 Administration for Children and Families Justification of Estimates for Appropriations Committees, page 311). For more information on Family First, please refer to a document that NICWA published with several other leading child welfare organizations in late 2019. The document is entitled “Implementing the Family First Prevention Services Act: A Technical Guide for Agencies, Policymakers and Other Stakeholders,” and you can find a copy of the document here.

Some highlights of the new Family First guidance for tribes operating the Title IV-E program directly through the federal government are listed below. You can find a copy of the federal guidance here:

  • Tribes can claim for prevention services within the eligible categories of services that they deem culturally appropriate and meet the unique needs and context of the community instead of only being able to use evidence-based services described in the law.
  • In meeting the requirement that prevention services must be trauma informed, tribes may define what a trauma-informed service is in a way that reflects the components of historical trauma unique to their communities.
  • Tribes can define the practice criteria used to define different prevention services (e.g., values base, longevity of practice, community approval, traditional basis, evaluation) rather than having to adhere to those identified in the law. Tribes are not required to meet the requirement for amounts of expenditures in different practice categories.
  • Tribes may use alternative evaluation strategies to evaluate their prevention services such as exploratory, community-based participatory research, and qualitative designs.
  • Tribes are not required to meet maintenance of effort requirements (i.e., requirements to continue expending the same or higher levels of tribal funding in prevention services in addition to amount of FFPSA funds received).

Family First also has implications for American Indian and Alaska Native (AI/AN) children who are in state care and are eligible for the protections of ICWA, especially AI/AN children subject to ICWA’s requirement for active efforts to prevent removal and rehabilitate families. NICWA urges tribes and states to work together to identify culturally based prevention services that have been shown to be successful with Native children and families and work to document the evidence of this success so these cultural prevention services may be approved for funding under Family First. If you would like more information about tribal implications for Family First funding and services, please contact NICWA Government Affairs Director David Simmons at desimmons@nicwa.org.

Budget

Fiscal Year 2020 Appropriations—New Funding for Off-Reservation ICWA Programs; FY 2021 Funding Likely to Be in the Form of a Continuing Resolution

On December 20, 2019, the House and Senate budget negotiators reached an agreement to fund the federal government through FY 2020, staving off another short-term continuing resolution to keep the government operating (H.R. 1865, the Further Consolidated Appropriations Act of 2020). This omnibus legislation included funding to allow the federal government to continue operating through FY 2020 and set larger budget targets for FY 2021. It also included a number of other provisions (riders) that were not specifically related to FY 2020 appropriations. High-level issues in the agreement included significant increases in both domestic and defense programs, along with funding to support continued building of the southern border wall, a priority of the president. Details for specific human service programs in the legislation are still being identified, but most programs received funding at the FY 2019 level. Some notable exceptions in federal human services programs for tribes included the following provisions:

  • $50 million in funding under the Public Health Services Act for tribes and tribal organizations to address the opioid epidemic in Indian Country (Division A, Title I, Substance Abuse Treatment).
  • $174.8 million for tribal Child Care and Developmental Block Grant programs (Division A, Title I, Administration for Children and Family Payments to States for the Child Care and Developmental Block Grants).
  • $15 million for tribes that operate the Title IV-B, Subpart One program to assist them in developing services for children at risk of being placed in out-of-home care due to child abuse and neglect (Division N, Subtitle F, Section 602, Family First Transition Act).
  • $1 million in grant funding for off-reservation ICWA programs (see joint explanatory statement for language published on page H11289 of the Congressional Record, December 17, 2019). This funding has not been appropriated since 1996 and previously funded over 30 urban ICWA programs.

The House of Representatives has been diligently working on getting their appropriations completed before the end of the fiscal year (September 30, 2020), but the Senate has not made as much progress. With COVID-19 taking up a lot of the energy of the Senate and House it is most likely the Congress will pass a temporary spending bill for FY 2021 before the election (continuing resolution) rather than finishing up the traditional appropriations process. A continuing resolution would like fund most federal programs at similar levels to FY 2020 with some variations for priority programs that both chambers can agree on.

Judicial

Fifth Circuit Court of Appeals Rehears Earlier Decision in Brackeen v. Bernhardt

In October of 2019, the United States Fifth Circuit Court of Appeals granted a petition by the plaintiffs in Brackeen v. Bernhardt to rehear the earlier three-judge panel decision in the Fifth Circuit supporting the Indian Child Welfare Act’s (ICWA) constitutionality. The plaintiff’s petition asked for a rehearing en banc that sought to have the earlier decision reheard by all of the judges that sit on the Fifth Circuit, which in this case was 16 judges. The plaintiffs, who are seeking to have ICWA declared unconstitutional, include three states (Texas, Indiana, and Louisiana) and several private parties. After granting the plaintiff’s petition, the Fifth Circuit set oral argument for January 22, 2020, in New Orleans, Louisiana. The Fifth Circuit is now working on crafting a decision in the case. While no specific date is available, the decision is expected either late this summer or in the fall of 2020.

At the oral argument, two judges asked a majority of the questions with several others asking only one or two questions each. Four of the 16 judges did not ask questions during the hearing. Most of the questions focused on whether ICWA violates the United States Constitution by unlawfully commandeering state governments to enforce ICWA and whether ICWA is a race-based law. While state courts are required to honor federal law, state officials and state executive branch agencies are not required to enforce federal law unless funding is attached to their enforcement/implementation activity. The arguments in court examined whether state agencies were significantly burdened by ICWA’s requirements and whether states received any federal support (funding) for their part in ICWA. The other central issue centered on whether ICWA’s application was based upon an Indian child’s race or political status as a citizen of a sovereign tribal nation. The plaintiffs argued that ICWA was based upon a racial classification, while the federal government and tribal intervenors argued it was based upon a political status as a citizen of a tribal nation. One additional observation from the hearing was that many of the judges were not familiar with how child welfare typically works. This clouded the debate on how different legal theories in the case applied. Because of the complexity of the case, a decision from the Fifth Circuit is not expected until this summer or possibly into the fall of 2020. You can find an audio recording of the hearing here.

In preparation for the oral argument on January 22, 2020, the federal government, five intervenor tribes (Quinault Indian Nation, Morongo Band of Mission Indians, Cherokee Nation, Navajo Nation, and Oneida Nation), and a host of supportive amicus brief parties filed their written briefs in December 2019 supporting the constitutionality of ICWA. Most of the supporting amicus briefs had also been filed earlier in the first hearing before the Fifth Circuit, but the number of signatories increased significantly in several of the briefs and some briefs included revisions or additional language. You can find a copy of the federal government, intervenor tribes, and amicus briefs on Turtle Talk here, as well as the briefs of the plaintiffs and their amici parties. The parties filing amicus briefs in support of ICWA included the following:

  • 486 federally recognized tribes and 59 tribal organizations
  • 26 states and District of Columbia
  • 77 members of Congress (bipartisan)
  •  Native American women, American Civil Liberties Union, and others
  •  Quapaw Nation
  •  Casey Family Programs and 30 child welfare organizations
  •  Indian law professors
  •  Administrative law and Constitutional law professors
  •  Professor Greg Ablavsky—Stanford School of Law (Constitutional originalist)

NICWA and our Protect ICWA Campaign partners—the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund—want to thank all of the amicus brief parties for helping the litigation team present a strong showing of support for ICWA. NICWA, in our role of leading media and strategic communications, will continue to monitor and facilitate proactive engagement with the media and coordination with our federal, state, and tribal partners in this litigation. NICWA is also supporting policy-related strategies to support the litigation with Congress, state, and private agency partners. If you have questions about the lawsuit or how you can help, please direct them to NICWA Government Affairs and Advocacy Director David Simmons at desimmons@nicwa.org. You can find descriptions and materials regarding this and other ICWA lawsuits on the Turtle Talk website under the ICWA Appellate page under Open Case Materials at https://turtletalk.blog/icwa/.

For more information relating to this update, please contact NICWA Government Affairs Director David Simmons at desimmons@nicwa.org.