Biden-Harris Presidential Transition
Indian Child Welfare Policy Statement​

Through a collaboration with stakeholders across Indian Country, we contributed to the Tribal Nations and the 2021 Presidential Transition endorsed by Resolution PDX 20-054 at the 2020 National Congress of American Indians virtual Annual Convention.

The Presidential transition recommendations identify key issues to enable the incoming Administration to move forward with proactive policies that will benefit Indian Country, including recommendations for Indian child welfare. The Indian Child Welfare Act (ICWA) is a long-standing federal law protecting the well-being of American Indian and Alaska Native children by upholding family integrity and stability within Native communities. The federal government must continue to recognize that there is nothing more vital to the continued existence and integrity of tribal nations than their children.

Below are the recommendations for the Biden-Harris presidential transition in the Indian Child Welfare Policy Statement.

ACTIONS FOR FIRST 100 DAYS

1. Initiate consultation to identify legislative and administrative policy and procedure changes to improve tribal access to the Title IV-E program.

Title IV-E of the Social Security Act is the government’s largest source of child welfare funding to support out of home placement and prevention services. The Family First Prevention Services Act expanded the Title IV-E program to support prevention services designed to prevent removal of children from their homes and to provide funding for kinship navigator programs designed to help relatives raising children to better access the benefits and services their children need. Family First has implications especially for American Indian and Alaska Native children subject to ICWA’s requirement for active efforts to prevent removal and rehabilitate families.

2. Restore data elements for American Indian and Alaska Native children and families in state foster care systems that were eliminated from the HHS 2016 Final Rule.

The 2016 Adoption and Foster Care Analysis and Reporting System (AFCARS) Final Rule was replaced by a new AFCARS Final Rule in 2020 that eliminated 85 percent of the data elements for American Indian and Alaska Native children and families that states were to collect and report on through AFCARS. AFCARS is the federal government’s largest source of data on children who are in out of home placement.

3. Create a Special Counsel or unit for Indian Child Welfare within the Environmental and Natural Resources Division (ENRD), Indian Resources Section (IRS), of the Department of Justice (DOJ).

The utility and effectiveness of ICWA is now being challenged by well-financed opponents who are actively and aggressively seeking to undermine ICWA’s protections for Native children and families as well as to have ICWA itself declared unconstitutional.

Creating a special counsel position or unit for attorneys who specialize in the practice of Family and Indian Law related to the implementation of ICWA should be a priority for DOJ. This special position is critical in addressing the coordinated legal attacks against ICWA.

AGENCY RECOMMENDATIONS

Additional administrative policy recommendations include:

Department of Interior (DOI)

• Improve implementation of the DOI ICWA Regulations for state courts and agencies in child custody proceedings. ICWA’s 2016 regulations are still not fully implemented in all states, and additional efforts are needed by DOI to ensure full implementation.
• Include a request in the President’s FY 2021 budget request to Congress recommending full funding under the Indian Child Protection and Family Violence Prevention Act grant programs (treatment services for victims and prevention services).

Department of Health and Human Services (HHS)

• Improve state and federal agency capacity to engage with tribal governments on Indian child welfare matters. HHS’ capacity to effectively engage tribal and state agencies, and to help facilitate improved child welfare services to American Indian and Alaska Native children and families is insufficient and requires additional workforce training and guidance.

Department of Justice

• Launch a formal investigation into civil rights violations including ICWA noncompliance and broader claims of biased treatment in both involuntary and voluntary placements of American Indian and Alaska Native children involving state and private agencies.