Child and Family Policy Update
Supreme Court Hears Oral Arguments in Haaland v. Brackeen ICWA Case
The United States Supreme Court (Court) heard oral arguments in the Haaland v. Brackeen case (21-376) on November 9, 2022, starting at 10:00 a.m. Eastern. In this case, the Court was asked to assess whether the Indian Child Welfare Act was constitutional. The plaintiffs, the State of Texas and private parties (foster and adoptive parents), asked the Court to focus on the following issues: 1) that Congress did not have the constitutional authority to enact ICWA—does Congress have the authority to legislate on behalf of Indian tribes and what are the boundaries of this authority?; 2) that ICWA violates the Equal Protection Clause—is ICWA a race-based law?; (3) that certain provisions of ICWA violate the anti-commandeering doctrine—does ICWA require state agencies to pursue federal purposes unlawfully?; and (4) whether ICWA violates the non-delegation doctrine—does the ICWA requirement that requires a state court to accept tribal placement preferences violate the delegation doctrine? Defendants in the case included the federal government and intervening tribes, Cherokee Nation of Oklahoma, Oneida Nation in Wisconsin, Morongo Band of Mission Indians, Quinault Indian Nation, and Navajo Nation. Materials for the case, including oral argument audio and transcripts, are available here.
The Court used its time to focus on the authority of Congress to enact ICWA, whether ICWA violates the anti-commandeering doctrine under the Tenth Amendment, and whether ICWA, in particular one of its placement preferences (other Indian families that are not members of the child’s tribe), violates the equal protection clause. The Court did not explore the non-delegation doctrine. One unusual thing about the hearing was the amount of time the Court allowed for oral arguments, which significantly exceeded the scheduled time and continued for just over three hours. This underscores the complexity of the legal issues being addressed and the interest of the Court’s justices.
The plaintiffs argued that states should only be required to apply the best interest standards they use with non-Native children in their state child welfare system in state child custody proceedings involving Indian children. ICWA provides standards similar to the best interest standard often used in state courts (e.g., placement in least restrictive setting, placement with siblings) but also requires consideration of the importance of the child’s connection to their tribe and extended family. The plaintiffs also argued that Congress did not have authority to enact ICWA and that the Indian commerce clause in the Constitution was not intended to apply in child welfare proceedings in state courts. The plaintiffs argued there should be restrictions on Congress’s authority to legislate for Indian people. They suggested Congress’s authority should only apply to legislation that addressed issues “on or near reservation” and the Indian commerce clause authority should not apply beyond the boundaries of business or economic pursuits. A number of the justices pushed back on these arguments and cited other laws or interpretations that differed. At one point Justice Gorsuch asked the plaintiffs how they believed they had standing to challenge ICWA on equal protection grounds, which was suggested earlier by the federal government’s attorney, related to a condition of standing which requires demonstrating some type of harm or injury the party has suffered.
On anti-commandeering, Texas argued that ICWA requirements, like active efforts and record keeping, unlawfully require state agencies to meet federal purposes without their agreement. There was back and forth between the justices, plaintiffs, and defendants’ attorneys on how ICWA applied to public agencies and in privately initiated placements. A possible defense of ICWA in this area is that ICWA’s active efforts requirement, for example, applies evenly to both state and private entities. Justice Sotomayor asked about several federal laws, some that were federal Indian laws and others that were not, and whether these federal statutes were also unconstitutional based upon anti-commandeering doctrine, since they also required state agencies to take certain actions. One of the federal statutes cited applies to active military service members that requires notice, appointment of counsel, stays of proceedings, and possibly setting aside judgements in state courts in child custody cases.
Questions regarding whether ICWA violates the equal protection clause were brought up several times by the justices. Chief Justice Roberts and Justice Kavanaugh tried to connect a perceived disadvantage to Indian children compared to non-Indian children based upon ICWA’s application and the “other Indian families” placement preference requirement. The defendants countered with the importance of that placement preference for children who have parents who are members in two different tribes and in the cases of tribes that share reservations, geographic proximity, or cultural ties.
While it is difficult to determine how the Court will rule in this case, the defendants presented their arguments and responded to questions from the justices very well. In addition, it was clear that a number of the justices had very strong interest and good questions that pushed back on arguments made by the plaintiffs. There is no timetable for when a decision will be issued, but because of the complexity of the case it is likely that a decision will not come forward until the spring and possibly as late as June of 2023.
NICWA, with Protect ICWA Campaign partners the National Congress of American Indians, Native American Rights Fund, and Association on American Indian Affairs, is leading efforts to defend ICWA through litigation, communications, and policy work. You can find information on how to support ICWA by following the Protect ICWA Campaign @ProtectICWA on Twitter and Instagram. The Protect ICWA Campaign is continuing media and communication efforts as we wait for a decision from the Court and will be providing information and resources after the decision as well.
New 118th Congress—New Challenges and Opportunities Await Tribal Advocates in 2023
Following the results of the 2022 midterm elections, tribal advocates will be working with new leadership and rules in the House of Representatives and a slightly larger Democratic majority in the Senate. The Democratic Party lost enough seats in the House to lose the majority, but in a surprise to many, the number of seats Republicans gained was much smaller than original forecast. Starting in January when the House reconvened, Republicans have a nine-seat majority over Democratic members of the House (222 Republicans and 213 Democrats). With that majority, Kevin McCarthy (R-CA) was elected the new Speaker of the House and all of the House committees and subcommittees will have new Republican chairs. Below are a few of the new House committee chairs:
- House Natural Resources Committee: Chairman Bruce Westerman (R-AR, Fourth District)
- House Ways and Means Committee: Chairman Jason Smith (R-MO, Eighth District)
- House Appropriations: Chairwoman Kay Granger (R-TX, Twelfth District)
- House Rules Committee: Chairman Tom Cole (R-OK, Fourth District)
- House Education and Workforce Committee: Chairwoman Virginia Foxx (R-NC, Fifth District)
- House Budget Committee: Chairman Jodey Arrington (R-TX, Nineteenth District)
New House rules have also been adopted as part of Speaker McCarthy’s election. The new rules will place greater restrictions on some processes, such as approval of new funding in legislation and opening up the process of considering amendments to appropriations bills. Speaker McCarthy has stated his intention to cut overall spending in domestic programs to FY 2022 levels, while holding defense spending harmless. This would require decreases in the neighborhood of $130 billion. Some of the new rules include the following:
- A three-fifths majority of the House would be required for new spending in legislation (tax increases). This is designed to limit increases in mandatory spending. In the 117th Congress, tax increases only required a majority vote of approval.
- “Cut-as-you-go” provisions would direct Congress to offset the cost of any legislation with spending cuts instead of tax increases. This is tied to mandatory spending bills. In the 117th Congress, legislation could be adopted without a coinciding revenue offset for new spending. Revenue offsets usually are decreases in other federal spending or reductions in tax subsidies (tax credits or exemptions for individuals or companies).
- Committees would be required to adopt and submit an authorization and oversight plan, listing all unauthorized programs and agencies in the committee’s jurisdiction that received funding in the previous fiscal year, as well as an assessment of whether any mandatory funds in those programs should be moved to discretionary spending. Spending bills that do not have a separate authorization by Congress will not be increased. Previously, Congress has often funded federal programs that have not been reauthorized on time. This rule would also seek to identify mandatory funding in unauthorized federal programs and change the funding to discretionary funding. Mandatory funding is provided for in the authorizing law and does not require an annual appropriation vote like discretionary funding does. Title IV-E Foster Care, Prevention, and Permanency is an example of a mandatory funded program and BIA Indian Child Welfare Act grants is an example of a discretionary funded program.
- Limits to long-term spending will seek to prevent any bill estimated to spend more than $2.5 billion in any four consecutive years in the next decade.
- Changes to the Congressional budget and appropriations process would allow for stricter enforcement of certain budget control measures while allowing members to bring amendments to the floor on appropriations bills and have them considered as a package instead of individually. Also, the amount of time spent on votes will be cut significantly. The design is to spend more time on floor debates and takes many more votes. Some advocates have suggested that relaxing restrictions around who and how amendments to appropriations bills can happen on the floor will create an unwieldy process that will make it much more difficult to pass appropriations bills.
- House members will have access to the legislative text of a bill 72 hours before a floor vote.
On the Senate side, Democrats increased their majority by one seat, giving them 51 seats to Republicans’ 49 seats. In the previous Congress, Democrats held the majority with 50 seats because under Senate rules the Vice President serves as a tie-breaker when the Senate is evenly split between Democrats and Republicans. While the increase for Democrats is helpful, it still is not enough to break filibusters that can stall legislation, especially if Senate members vote along party lines. Sixty votes are required to break a filibuster. Another complicating factor is that three of the Senate members that are counted in the Democrats majority are registered as independents, although they chose to caucus with Senate Democrats. Senator Sinema (D-AZ) recently announced she was switching parties to become an independent and will likely remain a key senator in legislative negotiations along with Senator Manchin (D-WV).
What does this mean for tribal advocates? With Democrats having a slim majority in the Senate and Republicans in the House, it likely means smaller numbers of legislative bills getting adopted by both the House and Senate and the appropriations process to fund federal programs running into numerous roadblocks in either the House or Senate. This will set up key challenges for both parties for getting their legislative and budget priorities enacted into law and possibly creating showdowns over the funding of the federal government later in the year. Already we are seeing a showdown on extending the debt ceiling limit between House Republicans and Senate Democrats and the White House, which may be a harbinger for things to come.
For child welfare advocates, there are some key bills that did not make it through the 117th Congress that are priorities in this Congress. One example is the reauthorization of the Title IV-B program that contains child welfare funding for states and tribes. In the omnibus bill that passed in December 2022 before the new Congress started, “Consolidated Appropriations Act, 2022”, Title IV-B and another important program, the Temporary Assistance to Needy Families program (TANF) authorizations, were extended through fiscal year 2023 (September 30, 2023), but this does not provide opportunities to update sections of the law or funding levels. While it could be a pretty lean 118th Congress in terms of new legislation and appropriations, there have been occasions in the past when tribal advocates have been able to work with Congress to pass important legislation and increase funding to important programs for Native children and families. A bipartisan approach is always recommended and now more than ever if we want to gain support for tribal child welfare priorities. Below are some legislative bills that made strides in the 117th Congress, but will need to be reintroduced in the new Congress.
- Truth and Healing Commission on Indian Boarding School Policies (H.R. 5444 and S. 2907)
- Tribal Family Fairness Act (H.R. 4348)
- Native American Child Protection Act (H.R. 1688 and S. 2326)
- Reauthorization of Child Abuse Prevention and Treatment Act (H.R. 485 and S. 1927)
- Strengthening Tribal Families Act (H.R. 8954)
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.
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.
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 email@example.com.
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.