Child and Family Policy Update

October 2022

 

Hot Topics

Supreme Court Set to Hear Oral Arguments in Haaland v. Brackeen ICWA Case

The United States Supreme Court (Court) has announced the date for oral arguments in the Haaland v. Brackeen case as November 9, 2022, starting at 10:00 a.m. Eastern. The Court is hearing arguments regarding whether the Indian Child Welfare Act (ICWA) is a constitutional law. The petitioners in the case, the State of Texas and private parties (non-Native foster/adoptive families), are arguing that ICWA is unconstitutional. The respondents, the federal government and five intervening tribes (Morongo Band of Mission Indians, Quinault Nation, Oneida Nation in Wisconsin, Navajo Nation, and Cherokee Nation), are defending the law and arguing that ICWA is constitutional. The stakes are high as the claims by the plaintiffs, if the Court were to accept them, could have serious implications for not just ICWA, but many other federal Indian laws too. For more information on the briefs filed in the case, you can go here.

NICWA, with other Protect ICWA Campaign partners the National Congress of American Indians, Native American Rights Fund, and Association on American Indian Affairs, are leading efforts to defend ICWA through litigation, communications, and policy work. You can find information on how to support and engage these efforts by following the Protect ICWA Campaign @ProtectICWA on Twitter and Instagram. The Protect ICWA Campaign is planning media and communication efforts for October and early November and the day of oral arguments too.

To listen to a livestream of the oral arguments on November 9, please go to the Court’s website here. You will find a quick link on the home page called “Live Audio” that will send you to a page where you can click on a livestream of the oral argument. In addition, the Supreme Court has resumed courtroom seating for the public, members of the Supreme Court bar, and the press. There are only a small number of seats so if you are thinking about trying to attend in person it is encouraged that you contact the Court to learn more about protocols and other logistics.

The showing of support for ICWA has increased significantly since the Haaland v. Brackeen case began in 2017 and as support has increased, it has become increasingly clear that ICWA is viewed as the gold standard in child welfare practice and policy (see Protect ICWA Campaign press release). The Protect ICWA Campaign is grateful for your support and strongly encourages you to show your support for ICWA in whatever way makes sense to you as we move closer to oral arguments.

 

Department of Interior Releases First Report on Boarding School Initiative

On May 11, 2022, the secretary of the Department of Interior (DOI) released a long-awaited first report on their boarding school initiative which began in June 2021. The report identified 408 Indian boarding schools operated in the United States between 1819–1969 and over 1,000 other federal and non-federal institutions that may have involved education of Native children during this time period. In addition, 50% of Indian boarding schools may have received support or involvement from a religious institution or organization. The report also details the types of methods used in boarding schools with the purpose of assimilating Native children. The systemic military and identity alteration methods included, but were not limited to (1) renaming Native children with English names; (2) cutting children’s hair; (3) discouraging or preventing the practice of Native religions, cultural practices, and the speaking of Native languages; (4) forcing Native children to engage in military drills. A major focus of the Indian boarding schools was manual labor and Native children were forced to engage in manual labor and learn skills that were often irrelevant to their tribal communities and the United States economy at the time. To enforce these rules and expectations, harsh punishment was often used to discipline Native children who were determined to have violated the rules.

The investigation also searched for marked and unmarked burial sites across the Indian boarding school system. At this phase of the DOI investigation, they have identified 53 different Indian boarding schools that have burial sites. In this initial phase, DOI has documented that 19 Indian boarding schools accounted for 500 child deaths. DOI states that as the investigation continues, these numbers are expected to increase.

The report cited COVID-19 and a lack of funding as barriers to investigation during this first phase of the investigation, but in fiscal year 2022 appropriations Congress appropriated $7 million for DOI’s continuing investigation. The assistant secretary of the Bureau of Indian Affairs makes recommendations in the report regarding the next phases of the investigation, including producing a list of marked and unmarked burial sites and an approximation of the total amount of federal funding used to support the Indian boarding school system, including any monies that may have come from tribal or individual Indian trust accounts. The assistant secretary concludes that further investigation is necessary of the legacy and impacts of the Indian boarding school system on Native people.

 

Legislation to Establish a Commission to Examine the Boarding School System Gathers Support

On September 30, 2021, Senator Elizabeth Warren and Representative Sharice Davids introduced companion bills (identical bills) entitled the 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 House Natural Resources Subcommittee on Indigenous Peoples of the United States held a hearing to receive testimony on the legislation on May 12, 2022. The hearing featured testimony from the National Native American Boarding School Healing Coalition, boarding school survivors, the president of a tribal college, and a tribal leader. The House Natural Resources Committee approved the legislation on June 15 and the bill is now ready for consideration by the full House. NICWA submitted written testimony for the May hearing that focused on the intersection of the Indian boarding schools and experience of Native children and families in state and private child welfare systems.

The Senate Committee held a hearing on their boarding school commission bill, S. 2907, on June 22. The Senate bill is a companion to the House bill, meaning it has very similar provisions. The Senate hearing featured testimony from Department of Interior Secretary Deb Haaland, National Native American Boarding School Healing Coalition President Sandra White Hawk, Penobscot Chief Kirk Francis, Native Hawaiian Policy Lead Ms. Norma Ryūkō Kawelokū Wong Roshi, and First Alaskans Institute President/CEO La Quen Náay Liz Medicine Crow. The Senate Committee on Indian Affairs has not scheduled committee consideration and vote on the bill yet (markup), but is expected to do so soon.

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 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 Education, Office of Indian Education in the Department of Education, and commissioner of the Administration for Native Americans.
  • Members of federally recognized tribes and Native Hawaiian organizations.
  • Mental health, healthcare, 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.

 

Commission on Native Children Relaunches Hearings on Native Children’s Issues

The establishment of the Alyce Spotted Bear and Walter Soboleff Commission on Native Children was a vision of former Senator Heidi Heitkamp (D-ND) and Senator Lisa Murkowski (R-AK). It was established by Public Law 114-244 passed by Congress in 2016. The legislation authorized the establishment of a commission and advisory committee that would examine issues that impact the well-being of Native children and produce a report to Congress and recommendations. The appointment process for the commission, recruitment of advisory committee members, securing appropriations to fund the commission’s work, and hiring of staff took the next 2–3 years.

In October 2019, the commission held its first meeting and created a schedule for public hearings in 2020. Unfortunately, the pandemic hit just as the commission was getting ready for its first hearing in Indian Country. Hearings were suspended until 2022, although the commission continued work to virtually to research and examine issues related to Native children’s well-being. The public hearings relaunched in 2022 and the first hearing was held in Phoenix, Arizona. It featured featured several panels on issues like child welfare, behavioral and mental health, education, childhood development, and systems innovation and best practices in Indian Country. NICWA Board Member Mikah Carlos (Salt River Pima-Maricopa Indian Community) provided testimony for NICWA on child abuse and neglect in Indian Country, best tribal practices in child abuse and neglect prevention, and improving implementation of the Indian Child Welfare Act. Mikah provided background and examples on these issues, while also sharing some of her own experiences. The commission is continuing to hold public hearings and has information on its website regarding its schedule and agendas.

Legislation

Senate Preparing for Introduction of Tribal Family Fairness Act Bill

Congresswoman Karen Bass introduced the Tribal Family Fairness Act (H.R. 4348) in the House of Representatives in 2021. The bill would provide additional funding for tribes under the Title IV-B, Subpart Two program that funds flexible family preservation and support services. The legislation also seeks to streamline the reporting and application requirements for tribes and increase funding for tribal court improvement grants for tribal family courts. The legislation is an important step forward in helping tribes secure more flexible child welfare funding that can help children avoid removal from their homes and strengthen families so children can be returned home safely. The Senate has been considering introducing a version of this legislation and recently key senators have indicated that they are planning to introduce a very similar bill to the House version soon.

NICWA has been a supporter of this legislation and urges tribal advocates to contact their senators and urge them to sign on to the legislation as a co-sponsor. Senator Warren has been working to secure original co-sponsors for the legislation, so ask your senators to contact her office and coordinate with her staff.

 

Full Senate Poised to Consider Two Bills to Fund Tribes to Address Child Abuse Prevention and Treatment Services

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, including increasing funding for tribes for child abuse prevention services and supporting a study of culturally based child abuse and neglect strategies that tribal communities have successfully used.

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). This bill was later included in the Senate Health, Education, Labor, and Pensions Committee approved CAPTA reauthorization bill (S. 1927). The next step is a vote on S. 1927 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 Senate Committee on Indian Affairs approved a bill, the Native American Child Protection Act (H.R. 1688 as approved by the House), that reauthorizes tribal funding for child abuse prevention and treatment of victims. The legislation increases the amount of authority Congress has to appropriate funding for the tribal grants authorized in the legislation. The Senate Committee on Indian Affairs chose to report out the House-approved legislation rather than their own companion bill, S. 2326, smoothing the way for the legislation to be approved by the Senate and then be able to be sent to the president for enactment into law. With passage by the Senate Committee on Indian Affairs, H.R. 1688 is ready for consideration by the full Senate.

NICWA is working with tribes and Indian organizations to seek support from senators on S. 1927 and S. 2326 and is encouraging you to contact your senators and ask them to support the legislation as it moves through the Senate. These are some of NICWA’s top policy priorities in 2022 and we need your help to get this through Congress this year. You can find contact information for your congressional representatives here.

Administrative Policy

Tribes and Advocacy Organizations Await Decision in AFCARS Lawsuit to Restore Native Data Elements

Plaintiffs and advocates for Native children are continuing to wait on a decision from the Northern District of California Federal Court to a motion filed in May 2021 to vacate a 2020 Final Rule that eliminated over 85% of American Indian and Alaska Native (AI/AN) data elements in the Adoption and Foster Care Analysis Reporting System (AFCARS). These AI/AN data elements were part of a 2016 Final Rule that would have provided for the first time, federal data collection from states of data elements related to implementation of the Indian Child Welfare Act with AI/AN children subject to the law. The coalition of tribes and advocacy organizations that filed the lawsuit claimed the removal of the AI/AN and LGBTQ+ data elements was unlawful and the 2020 Final Rule eliminating these data elements should be vacated. The plaintiffs include the California Tribal Families 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. AFCARS is the federal government’s largest source of data on children who are in out-of-home placement.

Tribal leadership and NICWA have expressed their interest in restoring the restoration of the 2016 data elements, and more recently, the Biden Administration has stated that they support the restoration of the 2016 data elements and is considering how they can restore the data elements depending upon the decision of the federal court.

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.

Budget

Congress Passes Continuing Resolution to Fund Federal Government into December

On September 30, Congress passed a continuing resolution (CR) to keep the federal government and federal programs funded into December 2022. Congress often uses CRs as a temporary measure to keep the federal government funded into a new year when they have not been able to pass all of the appropriations bills before the September 30 deadline for the new fiscal year. Passage of the CR sets up a situation where current members of Congress either need to pass a final FY 2023 bill before the new Congress is seated in January 2023 or pass another continuing resolution. The outcomes of the election and what parties are in charge of the Senate and House will likely play a significant role in what occurs.

The president’s FY 2023 budget request contained new funding and policy recommendations for Congress as they develop their FY 2023 appropriations bills. While the president’s budget requests do not determine final appropriation levels, as only Congress can pass appropriations bills into law, the president’s request signals his administration’s priorities to Congress. Appropriation committees within Congress are moving to markup appropriations bills starting this summer and are hoping to have FY 2023 appropriation bills for all of the federal government functions approved before the midterm elections in November 2022. Some highlights from the president’s budget requests include the following:

  • $28.9 million increase to Bureau of Indian Affairs (BIA) Social Services.
  • $9.4 million increase to BIA ICWA grant program (tribal and off-reservation programs).
  • $23.5 million increase to Administration for Children and Families (ACF) Title IV-B, Subpart Two, discretionary programs (tribes receive a 3% set-aside from this program).
  • Policy recommendations to extend tribal flexibility to use culturally based services under the Title IV-E Prevention Services Program to tribes that operate the Title IV-E program through a tribal-state agreement and for states and tribes to use culturally adapted evidenced-based services approved by the Title IV-E Clearinghouse.
  • $300 million increase to ACF’s Title IV-B, Subpart Two, mandatory programs with $180 million reserved for core program services (tribes receive a 3% set-aside from this program).
  • Increase federal match rate by 10% for eligible kinship/relative care placements under ACF’s Title IV-E Foster Care and Adoption Assistance program (lowers non-federal match payments required).
  • Continue FY 2021 100% federal match rate for ACF’s Title IV-E Prevention Services through 2022 and then 90% from 2023–2026. The Prevention Services Program under Title IV-E reimburses states and tribes that operate the program for prevention services that help children avoid out-of-home removal.

You can find copies of the president’s budget request for these programs at the BIA’s FY 2023 Budget Justification and ACF’s FY 2023 Budget Justification. You are encouraged to contact your congressional representatives to share your thoughts on the FY 2023 budget requests that impact services to Native children and families. You can find your congressional representatives and their contact information here.

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

Each year NICWA identifies policy priorities that will guide our efforts and focus our resources during the calendar year. View the NICWA 2022 Policy Priorities.

Past Policy Updates

Child and Family Policy Update October 2022

Child and Family Policy Update August 2022

Child and Family Policy Update July 2022

Child and Family Policy Update June 2022

Child and Family Policy Update April 2022 

Child and Family Policy Update March 2022

Child and Family Policy Update January 2022

Child and Family Policy Update November 2021

Child and Family Policy Update July 2021

Child and Family Policy Update May 2021

Child and Family Policy Update April 2021

Child and Family Policy Update March 2021

Child and Family Policy Update January 2021

Child and Family Policy Update November 2020

Child and Family Policy Update August 2020

Child and Family Policy Update June 2020

Child and Family Policy Update April 2020

Child and Family Policy Update March 2020

Child and Family Policy Update January 2020

Child and Family Policy Update December 2019

Child and Family Policy Update October 2019

Child and Family Policy Update June 2019

Child and Family Policy Update May 2019

Child and Family Policy Update March 2019

Child and Family Policy Update January 2019

Child and Family Policy Update October 2018

Child and Family Policy Update September 2018

Child and Family Policy Update August 2018

Child and Family Policy Update May 2018

Child and Family Policy Update March 2018

Child and Family Policy Update February 2018

Child and Family Policy Update November 2017