Child and Family Policy Update

July 2024

Hot Topics

House and Senate Members Introduce Bills to Improve ICWA Implementation

On June 5, 2024, Representative Bacon (R-NE) and Representative Chu (D-CA), joined by several other House of Representative co-sponsors, reintroduced the Strengthening Tribal Families Act (H.R. 8621). This bill is a revised version of an earlier version that was introduced in 2023 as H.R. 3461. On the same day, Senator Baldwin (D-WI) introduced a companion bill in the form of S. 4471. The legislation requires the Department of Health and Human Services (HHS) to collect data from states on cases involving American Indian and Alaska Native children where the Indian Child Welfare Act (ICWA) is applied.

The legislation also requires HHS to provide technical assistance to states and tribes implementing ICWA and invites guidance from the Bureau of Indian Affairs to support these efforts. A report to Congress on HHS’s efforts to implement the legislation and state efforts to implement ICWA is required every two years. This legislation follows a strong decision in the Haaland v. Brackeen ICWA case published in June of 2023 and many years of advocacy by NICWA, tribes, and ICWA allies to improve data collection on ICWA cases and improve implementation through improved technical assistance to states and tribes. Many tribes expend very significant amounts of tribal resources to help states implement ICWA with little support from federal or state agencies, reducing resources that could be used to expand services to their member children and families. The legislation is being considered for inclusion in an expected Title IV-B reauthorization bill being worked on by the House Ways and Means Committee and Senate Finance Committee. NICWA urges tribes, tribal organizations, and ICWA allies to contact their House and Senate members and ask them to sign on to the legislation as a co-sponsor. An opportunity to improve federal child welfare policy like this only happens once every several years, so please make every effort to contact your House and Senate members to express your support for the legislation. You can find contact information for your congressional representatives at congress.gov.

Public Comments on Proposed Regulations to Collect ICWA Data Overwhelmingly Supportive

On February 23, 2024, the Administration for Children and Families (ACF) released a Notice of Proposed Rulemaking (NPRM) to establish data elements that measure the status of American Indian and Alaska Native children (AI/AN) in state child welfare systems. The data measures, most of which track Indian Child Welfare Act (ICWA) requirements, are key to understanding the status of AI/AN children in state child welfare systems and how to most effectively target resources to improve outcomes for AI/AN children and families. The data elements would be established within the Adoption and Foster Care Analysis and Reporting System (AFCARS). The public comment period closed on April 23, 2024, but an analysis of the 81 comments submitted online revealed broad support for the proposed data elements.[1]

All 30 tribal nations and tribal organizations that submitted comments supported the establishment of the ICWA data elements.
Nine of 14 states that submitted comments supported the establishment of the ICWA data
States that raised concerns about the establishment of the ICWA data elements primarily expressed concerns about the timeline for implementation (two years) or administrative
Ten regional or national child welfare organizations supported the establishment of the ICWA data elements.
Several individual letters of support for the ICWA data elements were submitted by researchers, students, legal advocates, and other child welfare professionals.
Overall, only seven comments were submitted that could be read as not supporting the establishment of the ICWA data elements.

The next steps in the rulemaking process are the analysis of public comments by ACF which will include developing changes to the data elements that are deemed necessary, developing responses to the public comments, and development and publication of the final rule. This process will likely take several months so a final rule is not expected until the fall of 2024.

[1] In the May edition of the NICWA Child and Family Policy Update, we identified a smaller number of states that had filed comments regarding the AFCARS NPRM. The original analysis included this smaller number based on comments we were able to confirm the day after the closing of the comment period. In June, we ran some additional analysis and discovered that four more states filed comments than originally identified in our April analysis. This larger number of state comments is included in this article.

House Ways and Means Committee Holds Hearing in Indian Country on Indian Child Welfare Issues

The House Ways and Means Committee (Committee) held a hearing at the Salt River Pima Maricopa Indian Community (SRPMIC) on May 10, 2024, focusing on Indian child welfare issues. SRPMIC Councilwoman Mikah Carlos, also a NICWA Board Member, provided testimony on her family’s experience with foster care and adoption and the importance of culture in the healing process. Councilwoman Carlos also described how vital ICWA is to protect Native children and families in state child welfare systems. She asked the Committee to support legislation that would require additional data collection and technical assistance for states and tribes to improve ICWA’s implementation. In her testimony, she described how states depend upon strong tribal partners to implement ICWA and that funding for tribal child welfare programs needs to increase significantly for tribes to serve their children and families on and off tribal lands. She also encouraged the Committee to support legislation to allow families that adopt through a tribal court to be eligible for the federal adoption tax credit and legislation that would allow tribes to access the Federal Tax Refund program to improve tribal collections of child support payments for tribal children.

The Committee was holding the hearing as it considers changes to the Title IV-B Child Welfare Services and Promoting Safe and Stable Families programs. Title IV-B is due to be reauthorized, and the Committee has been engaged in discussions with different child welfare organizations, states, and tribes regarding policy priorities for the programs. Currently, tribal nations are eligible to receive funding under both Title IV-B programs, but the allocations are very small, and the application and administrative reporting requirements are outsized for smaller tribes.

You can view Councilwoman Carlos’s testimony here and a copy of NICWA’s testimony from a Senate-House Roundtable on child welfare last December here.

House and Senate Committees Approve Indian Boarding Schools Legislation (H.R. 7227 and S. 1723)

On June 13, 2024, the House Committee on Education and the Workforce approved the Truth and Healing Commission on Indian Boarding Schools Policies Act, H.R. 7227, in a vote to move the bill closer to consideration by the House of Representatives. The bill has also been referred to two other House committees, House Natural Resources and House Energy and Commerce, which need to release their jurisdiction or mark up the provisions of the bill that fall under their jurisdiction. The Senate companion bill, S. 1723, was reported out of the Senate Committee on Indian Affairs on June 20, 2024. The Senate and House Committees approved their legislation with some generally clarifying amendments without making substantive changes to the key purposes of the legislation. The Senate bill is now ready for full Senate consideration and after the two remaining House Committees signal their intent, the House bill could be ready for full House consideration.

NICWA submitted written testimony for a May 2022 hearing on the legislation, focusing on the intersection of the Indian boarding schools and the experience of Native children and families in state and private child welfare systems. NICWA is supporting the legislation alongside the National Native American Boarding School Healing Coalition, the leading advocacy organization behind efforts to pass this legislation.

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
Federal agencies, such as Bureau of Indian Education, Office of Indian Education in the Department of Education, and commissioner of the Administration for Native
Members of federally recognized tribes and Native Hawaiian
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 and support its passage. You can find contact information for your congressional representatives here.

Legislation

Tribal Family Fairness Act Legislation in 118th Congress

Congresswoman Sidney Kamlager-Dove (D-CA), with co-sponsors Don Bacon (R-NE) and Sharice Davids (D-KS), introduced the Tribal Family Fairness Act (H.R. 2762) in the House of Representatives on April 20, 2023. The bill would provide additional funding for tribes under the Promoting Safe and Stable Families Program (Title IV-B, Subpart Two under the Social Security Act) that funds flexible family preservation and support services and contains a provision that funds tribal court improvement programs. 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. Efforts are being made to include this bill in a larger Title IV-B reauthorization bill that is being developed for consideration by the House Ways and Means Committee and Senate Finance Committee. The legislation is an important step forward in helping tribes secure more flexible child welfare funding to help children avoid removal from their homes, strengthen families so children can be returned home safely, and support improvements to tribal juvenile court operations. Senate members are considering introducing a version of this legislation

in the Senate too.

NICWA, a key supporter of this legislation, is urging tribal advocates to take action. Contact your House of Representative members and urge them to sign on to the House legislation as a co-sponsor. You can find contact information for your congressional representatives at congress.gov.

Native American Child Protection Act Passes House and Senate Committees

The Native American Child Protection Act, H.R. 663, was reintroduced by original co-sponsor Representative Ruben Gallego (D-AZ) on January 31, 2023, and Senator Lujan introduced a companion bill in the Senate, S. 2273. The legislation reauthorizes the two grant programs and the National Resource Center for Tribes, clarifies that cultural programs and services may be used in the grant programs, and increases the funding authority Congress has to appropriate funding for the tribal grants authorized in the legislation. This is some of the only dedicated tribal funding regarding access for child abuse prevention and child abuse victim treatment. The legislation was introduced in the last Congress and was approved by the House of Representatives and the Senate Committee on Indian Affairs.

The House Natural Resources Committee reported out H.R.663 on May 17, 2023, with amendments that removed the amount of funding authorized for the two grant programs, the Resource Center, and the years the funding was authorized. The revised bill was then passed by the full House. The language that remained in the bill reported out of committee contained amendments that clarified eligible activities that could be carried out under the grant program but stopped short of reauthorizing the grant programs. The Senate Committee on Indian Affairs reported out a companion bill that is identical to the one reported out by the House.

The impact of deleting the funding authorization levels and years authorized continues over two decades of not having a current authorization for these critical grant programs. While Congress will sometimes appropriate funding for federal grant programs that are not authorized, it sends a message that these grant programs are not a priority and creates barriers to getting sufficient appropriations funding in the future.

NICWA is working with tribes and Indian organizations to contact their Senate members to support S. 2273. Your role in this advocacy is crucial. This legislation is one of NICWA’s top policy priorities and we need your help to get the legislation authorized this year. You can find contact information for your congressional representatives at congress.gov.

Administrative

ACF Publishes Final Rule on Safe and Appropriate Placements for LGBTQI+ Youth

The Administration for Children and Families published a final rule on April 30, 2024, that contains new requirements for states and tribes that receive Title IV-B and Title IV-E funding to place LGBTQI+ youth in safe and appropriate placements. The final rule discusses the challenges these youth face in foster care systems and how critical it is that they have appropriate care and a home that understands and supports their identity as LGBTQI+ youth. This means homes that are free from harassment, mistreatment, and abuse. To meet this goal, the state or tribe would need to designate homes that can provide appropriate care for this population, provide specific training for care providers on how to support these youth, and provide a process for youth to report any conditions in the home that do not meet the requirements of the final rule. The final rule goes into effect on July 1, 2024.

ACF Announces Final Rule on Foster Care Legal Representation

On May 10, 2024, the Administration for Children and Families published a final rule allowing Title IV-E agencies to claim certain costs for legal representation in foster care or other civil legal proceedings. An Information Memorandum was also published for state, tribal, and territorial agencies administering or supervising the administration of Title IV-E of the Social Security Act. The final rule allows Title IV-E agencies to claim federal financial participation for administrative costs of legal representation provided by an attorney or non-attorney of an Indian child’s tribe when that tribe participates or intervenes in any state child custody proceeding for foster care placement or termination of parental rights of a Title IV-E eligible Indian child. This is an important step to improving ICWA implementation as it recognizes tribal nation’s sovereign right to intervene in state child custody proceedings involving their children.

Intervention by the child’s tribe can help minimize unnecessary separation of American Indian and Alaska Native (AI/AN) children from their families and communities and maximize placement of AI/AN children with extended and tribal families. The final rule goes into effect on July 9, 2024.

Budget

The House and Senate passed two final appropriations bills for FY 2024 in March. The first bill provided funding for programs under Justice, Veterans Affairs, Agriculture, Interior, and Transportation departments. The second bill, which includes the remaining federal departments such as Health and Human Services where most federal human service programs reside, was also approved by Congress. These two appropriation bills follow three previous continuing resolutions that kept the government funded while House and Senate leaders could finish work on FY 2024 appropriations. For the most part, FY 2024 funding for human service programs that tribes operate are continued at or near the same levels as previous years. The lateness in Congress finishing its appropriations work causes challenges for tribes as they have to wait months past the time when last year’s funding ran out, September 30, 2023, to receive the new fiscal year’s funding. In addition, when Congress is late in getting its appropriations work finished, it often results in little to no increase in funding for programs that tribes depend upon to meet the needs of their communities.

President Biden released his FY 2025 budget recommendations for Congress on March 11, 2024, with a number of increases in his recommendations for child and family service programs that tribal nations utilize. In addition, the President’s budget also contains recommended legislative changes to improve access to and operation of federal programs. The President’s budget request articulates his priorities in the budget process that Congress undertakes each year. Some of the President’s key FY 2025 recommendations include:1

Budget Recommendations

Increase HHS Promoting Safe and Stable Families (Title IV-B, Subpart 2) mandatory funding $180 million over FY 2024 levels and increased funding for the tribal court improvement program.2
Increase BIA Tiwahe Initiative funding $26.8 million over FY 2024 levels.3
Increase BIA Indian Child Welfare Act funding $7.9 million over FY 2024 levels.4
Increase BIA Social Services by $24.3 million over FY 2024 levels.5

Legislative Recommendations

Increase the set-aside for tribal and migrant populations under the Child Abuse and Prevention Treatment Act, Community Based Child Abuse Prevention grants to $5 million from the current 1% set-aside from the overall funding under this program (typically produces less than $1 million per year to be shared by tribal and migrant population grantees).
Provide a consolidated grant opportunity for tribes under the Title IV-B, Subparts 1 and 2, and the Chafee and discretionary Education and Training Voucher programs so tribes can use these program funds more flexibly to meet a variety of child welfare needs. 6
Allow tribes that participate in the Title IV-B, Subpart 1 Child Welfare Services program, but do not currently participate in the Title IV-E Foster Care and Adoption Assistance programs to submit a plan to operate the Title IV-E Prevention Services program.7

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 2024 Policy Priorities.