OPPORTUNITES FOR ACF
TO IMPROVE CHILD WELFARE
SERVICES AND PROTECTIONS

The Federal, State, and Tribal child welfare administrators and child welfare experts
with whom we spoke identified important problems with Federal financing of Tribal
child welfare services and with Federal oversight of child welfare protections for
Native American children. Access to Federal funds can be difficult for many Tribes,
and Federal efforts to ensure that the States and Tribes are providing the required
protections to children have been limited. _

The ACF has an important role to play in addressing these issues. As we have noted
in this report, ACF has already taken some steps to remedy these problems and is
considering others. The ACF staff have asked OIG to identify options to consider as
part of this process. We identify specific options for ACF to consider in two areas:
access to funds and oversight of protections. Many options could be implemented
together; a few are mutually exclusive.

We recognize that making constructive change in this area requires sensitivity to the
complex relationships among Tribes and States and various Federal agencies. To
implement some options, ACF would need to change existing legal authorities. Other
options entail difficult tradeoffs and politically sensitive choices. In addition, some of
options we identify are best considered in the context of the reevaluation that ACF is
currently conducting of its oversight processes.

We also recognize that ACF faces growing program responsibilities at a time of
increasing Federal financial constraints. Accordingly, in each area, we begin with
those options that ACF could undertake more readily with minimal investment of staff
or program resources, and within existing legal authorities. We follow with other
options that ACF could pursue over the longer term; these entail more fundamental
changes in practices and relationships, changes in existing legal authorities, and/or
larger investments of administrative or program resources.

As ACF considers future directions, we urge that it work closely with BIA, perhaps
through the memorandum of agreement mechanism authorized by the ICWA statute.
The BIA has long-established programs for child welfare services and it is important
for ACF to take these into account as it considers which options to pursue. Similarly,
we urge ACF to involve Tribal and State government representatives in these
deliberations, as it has in other program and policy arenas in recent months. Both
have major investments in child welfare programs for Native American children and
have long histories of dealing with each other and with the Federal government on
these issues.

11


DEPARTMENT OF HEALTH & HUMAN SERVICES

K

IG
SAIG ve

ADMINISTRATION FORFQHGOREN ANDAFAMMLIES
Office of the Assistant Seprgtary, Suite 600

AUG 2 {9 370 L'Enfant Promenade,
34 Washington, 0.C. soa DIC-El
DIG-OI
AIG-CFAA
TO: June Gibbs Brown AIG-MP
Inspector General : oGc/IG 7
EXSEC v.
FROM: Mary Jo Bane 4 BS
Assistant Secretary foXtl nen pare sent_3f%
Children and Families

SUBJECT: Comments on Office of Inspector General Draft Report:
"Opportunities for ACF to Improve Child Welfare
Services and Protections for Native American Children,"
OEI-01-93-00110

Thank you for the opportunity to comment on your draft report of
a study conducted on the opportunities for the Administration for
Children and Families (ACF) to improve child welfare services and
protections for Native American children.

The ACF agrees with the direction and content of this report.
The report reflects in-depth knowledge and understanding of the
complexities involved in the provision of child welfare services
to this population and addresses our concerns for strengthening
the provision of child welfare services and protections to
American Indian and Alaskan Native children.

As you know, this report was. the product of the diligent
leadership of the Office of Inspector General (OIG) with the
cooperation of concerned individuals and offices in ACF,
specifically the Children's Bureau. We would like the OIG to
continue its involvement in our efforts to improve services to
this population. Although the report provides valuable
information, at the exit conference, ACF staff requested that the
OIG staff who worked on the report join in the initial meetings
between the Children's Bureau and the Bureau of Indian Affairs.
This would provide all attending with access to the expertise
developed by your staff. I hope you will agree to make OIG staff
available for a short time after the final report is issued to
assist us in acting on the recommended options.

We look forward to working with your Office on other issues
pertaining to the improvement of services to children and
families.


TABLE 6
TITLE XX AND TITLE IV-E FUNDS SHARED BY NINE STATES! WITH ELIGIBLE TRIBES
AND TIIE PROPORTION OF ELIGIBLE TRIBES THAT RECEIVED THESE FUNDS
. FISCAL YEAR 1991

[

State az {co | mr | ne _| nm | xv | ox | orn _| sv | Tow
Native Americans as a Percentage of the Total State Population?
Bureau of Indian Affairs 463 oos | 4.78 033 744| 3.77 818 043} 855 375
gsi 4 -
Bureau of the Census 555 os4| 5.97 0.79 887 | 4.06 8.03 135] 727 436
(4990) ¢
Title XX Funds (in thousands)
Title XX Funds $39,498 |~ssrao1--| $9,118- | - $18,146 | -$17,070-|- $7.555 |- $36,723 | $31,342 | $8,076-| $204,919
Received by the State ©
Title XX Funds $1,844 0 0 o | 3374 0 r) o | ssa] — s2s3z
Shared with Tribes 7
+
Proportion of Eligible 2020} ONA| ONA| O/NA 222} ONA| O/NA| OMA 29 24/51
Tribes Receiving \
Title XX Funds 7 |
T
Title XX Funds 467 | 0.00 | 0.00 0.00 219 | 0.00 0.00 0.00 3.89 1.24
|

Shared with Tribes
as a Percentage of
Title XX Funds Received

by the State % © |
Title IV-E Funds (in thousands) |

Title IV-E Funds $12,624 | $8,530 | $4,648 | $7,937 | $7,897 | $3357 | $8,853 | $15,608 | $2500 | $71,954

Received by the State |

Title [V-E Funds 0 | $10 0 S81 $18 | $500 $250 0 sug $978

Shared with Tribes 7 1

Proportion of Eligible ono | 22)  ONA 2 4n2 4/4 | 2127 09 39 36/95

Tribes Receiving
Title IV-E Funds 7 : i i
Title IV-E Funds 0.00 j 0.12 | 0.00 1.02 0.23 | 14.89 2.82 0.001 4.76 1.36
Shared with Tribes \ |

as a Percentage of

Title IV-E Funds
Received by the State

Sources:
a Mail Survey of State Child Welfare Departments, Fall 1993, Office of Inspector General:
6 Title IV-E Report of Expenditures. Administration for Children and Families:
€ Title XX Federal Allounents to States Social Services, 1989-1993, Administration for Children and Families;
a Indian Service Population and Labor Force Estimates, January 1991, Bureau of Indian Affairs; and
€ Resident Population Distribution for the United States, Regions, and States, by Race and Hispanic Origin: 1990, Bureau of the Census.
Notes:

1 Of the 24 States with the largest Native American populations. the nine listed in this table are the only States that shared Title XX and/or
Title [V-E funds with eligible Tribes between 1989 and 1993.

2 ‘The 1991 statistics from the Bureau of Indian Affairs (BIA) reflect a much smaller Native American population than the 1990 Bureau of the
Census count. Specifically excluded from the BIA count are Native Americans who are not enrolled in federally recognized Tribes, and
enrolled members who reside in urban or rural areas not adjacent or contiguous to their reservations. The Bureau of the Census statistics
reflect all individuals who identify themselves as Indian, Eskimo, or Aleut, regardless of where they reside.

[EY

B-7


2

The BIA fully supports and embraces the majority of the recommendations
contained in the report, particularly the concepts of Indian tribes accessing
more direct funding from ACF and the streamlining of administrative,
application, and reporting procedures for all funding streams emanating from
ACF. However, the BIA remains concerned about areas needing additional
discussion and/or exploration beyond the current recommendations.
Additionally, some clarifying program information is provided below in order
to more accurately portray BIA and/or tribally-administered programs.

The first major area of concern Is the recommendation to establish a new_
requirement for tribal Indian Child Welfare Act (ICWA) grant programs to
provide basic child welfare protections as specified in Pub. L. 96-272 for
children in tribal custody. Tribal ICWA grant programs are administered by.
tribes under the auspices of BIA funds. The effect of thls new requirement
would be to require tribes to create additional bureaucracies and to carry
additional burdens without new resources. It can be surmised that tribes will
not be very receptive to this recommendation. Moreover, in keeping with the
Indian Self-Determination and Education Assistance Act (Pub. L. 93-638), it Is
the policy of the BIA that, before any new and or major program requirements
are implemented, the BIA must consult with tribes. Because BIA or tribally-
administered social services programs often provide substitute care for
children through the BIA‘s child welfare assistance program, few tribes opt to
have thelr ICWA programs provide this service. For this reason, the BIA
strongly advises against the unilateral imposition of any new ICWA program
requirements in the manner suggested, and respectfully requests that this
particular recommendation be dropped from the report.

A second major area of concern relates to ongoing problems relative to the
enforcement of State compliance with*major provisions of Pub. L. 95-608,

the Indian Child Welfare Act of 1978. Fifteen years after the enactment of
the statute, the BIA and Indian tribes continually experience the reluctance
and/or resistance of States to adhere fully to the ICWA (see attached letter).
This problem could be alleviated to same degree if one agency is assigned the.
role of monitoring State compliance in this area.

Moreover, the BIA recommends that States, in consultation with tribes within
their boundaries, develop, implement and assure compliance with the ICWA
protections as part of their Title [V-B State plan. To date, there have been no
consequences for State noncompliance. Thus, It is cecommended that
sanctions for noncompliance be addressed in some manner by ACF, perhaps
through ACF program and or quality contro! reviews. Finally, to improve the
capacity of States to fully implement the ICWA, it is further recommended
that States institutionalize mandatory training on the [CWA mandates for new
employees. Joint training with the BIA and tribes might also prove helpful.


ACF FUNDING FOR
TRIBAL CHILD WELFARE SERVICES

Most Tribes have received little or no Title IV-E or Title XX funding.

In 15 of the 24 States with the largest Native American populations, eligible Tribes
received neither Title IV-E nor Title XX funds from 1989 to 1993.” In 1993 alone,
these 15 States

received $1,714 TABLE 1: OF THE TWENTY-FOUR STATES WITH THE LARGEST
million in Title NATIVE AMERICAN POPULATIONS, NINE SHARED TITLE IV-E AND/OR
IV-E funds and ‘TITLE XX FUNDS WITH ELIGIBLE TRIBES IN 1993.
$1,289 million in Number of Title IV-E Funds® Title XX Funds®
Title XX funds State Tribes? Number of Tribes Number of Tribes

" Funded Eligible Funded Eligible

a:
Nine of the 24
States reported
that some Tribes
in their States
received

Title IV-E and/or
Title XX funds in
1993. (See

Table 1.)

Eight States
reported that 46
Tribes received
$1.9 million --.2
percent--of the
States’ $82 million
Title IV-E funds,
while 4 States
reported that 32
Tribes received
$2.8 million --.3
percent--of the
States’ $98 million

NA;
TOTAL j 537 For 11 States: 46/108 For 6 States: 32/63

Title XX funds.

(For additional @ “According to both the Indian Service Population and Labor Force Estimates (Bureau of
Indian Affairs, January 1991) and the Resident Population Distribution for the United |
results from the States, Regions, and States, by Race and Hispanic Origin (Bureau of the Census, 1990), |
i 4 this list of 24 States comprises those 20 that had the largest Native American |
OIG mail SUIVEY» populations in absolute numbers and those 20 that had the largest Native American |
see appendix B.)~ populations as percentages of the total State populations. |
5 List of federally recognized Tribes (58 Fed. Reg. 54,222, Oct. 20. 1993). |
© Survey of 24 State Child Welfare Departments, Office of inspector General, Fall 1993 |
Q “NA" indicates that the information was not available from the State. q

Tribes whose land extends into multiple States have been counted in each State.

wn


23.

24.

26.

27.

28.

29.

30.

31.

protections were not provided for a certain percentage of children, then ACF
issued a disallowance against the State’s Title IV-B child welfare monies.

58 Fed. Reg. 54,222, Oct. 20, 1993.
From information supplied to OIG by ACF.

P.L, 96-272, "Title IV-E, Part B--Child Welfare Services", Sec. 428: "(a) The
Secretary may, in appropriate cases (as determined by the Secretary) make
payments under this part directly to an Indian tribal organization within any
State which has a plan for child welfare services provided under this part."

ACYF-PI-93-10, issued May 19, 1993: "For fiscal year 1993, the appropriation.
for the Child Welfare Services State Grant Program (title IV-B of the Social
Security Act--the Act) is $294,624,000. In order to be eligible for a direct grant
at the amount of their share of the $141,000,000, an Indian Tribe or Indian
Tribal Organization (ITO) must meet the requirements of 45 CFR

1357.40 (a) - (e) and (g). In order to be eligible for any funds above that level,
up to their share of the $294,624,000, an ITO must: (1) be located in a State
meeting the requirements of section 427 (a) or (b) of the Act,..." (italics added).

Children’s Bureau - Policy, Review and Operations: 427 Status Report as of
March 19, 1993

The Omnibus Budget Reconciliation Act of 1993 (OBRA 93) barred ACF from
issuing disallowances as a result of Section 427 and Title IV-E reviews until
October 1, 1994. Furthermore, ACF is now reassessing the Section 427 review
and other of its child welfare oversight mechanisms.

The current formula takes into consideration the Tribe’s resident population
under age 21 and its per capita income. According to an ACF internal draft
document, the current formula "results in an amount which bears approximately
the same ratio to the total States’ Title IV-B allotment as the product of 1.5
times the proportion of the Indian Tribe’s resident population under age 21 to
the State’s total population under age 21."

In 1993, Title IV-B grant awards to individual Tribes ranged in value from $377
to $166,468.

The ACF requires Tribes seeking Title IV-B child welfare base funding to
develop child welfare service plans with ACF. In June 1993, ACF issued
program instructions that allow Tribes to submit plan documents that they
prepared for BIA ICWA grant applications or other purposes. These new
program instructions are intended to diminish the administrative burden of
applying for funds. Program instructions issued for Title IV-B family
preservation and support services funding’also allow Tribes to submit plan
documents that they may have prepared for other purposes.

D-7


18.

19.

20.

(OEI-01-00770), issued by the Office of Inspector General in January 1994.

To develop this list of 24 States, we used data from both the Resident
Population Distribution for the United States, Regions, and States, by Race and
Hispanic Origin, 1990, produced by the Bureau of the Census, and the Indian
Service Population and Labor Force Estimates, January 1991, produced by BIA.

The list of 24 States (Alaska, Arizona, California, Colorado, Florida, Idaho,
Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada, New Mexico, New
York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota, Texas,
Utah, Washington, Wisconsin, and Wyoming) includes those 20 States that had
the largest Native American populations, in absolute numbers, and those 20
States that had the largest Native American populations calculated as a
percentage of the total State populations.

The 1991 BIA statistics reflect a much smaller Native American population
than the 1990 Census count. Specifically excluded from the BIA count are
Native Americans who are not enrolled in federally recognized Tribes, and
enrolled members who reside in urban or rural areas not adjacent or
contiguous to their reservations. The Bureau of the Census statistics reflect all
individuals who identify themselves as Indian, Eskimo, or Aleut, regardless of
where they reside.

According to BIA data, the Tribal population in these 24 States represents 99
percent of the total U.S. population of members of federally recognized Tribes.
According to the Bureau of the Census data, the Native American population
in these States represents 86 percent of the total U.S. population of Native
Americans.

The States represented in our discussion group were: Colorado, Montana,
Oklahoma, Oregon, Nebraska, New Mexico, North Dakota, South Dakota,
Utah, and Washington.

The Tribes represented in our discussion groups are located in Arizona,
California, Idaho, Montana, Nebraska, Nevada, Oregon, and South Dakota.

While Tribal organizations may not have received any Title IV-E or Title XX
funds from States to provide their own services, Tribal members are generally
eligible for State services and may have received services provided by the State
with Title IV-E and/or Title XX funds.

To be eligible for Title XX funds, Tribal organizations must administer social
services programs and be prepared to make arrangements with the States in
which they are located to receive funds and provide social services to members
of the Tribes. Such arrangements can take the form of contracts, grants, or
other State-approved funding mechanisms.

D-5


48.

49.

50.

Sl.

52.

and/or Indian child welfare experts who were invited by the State to provide
this training.

See the Family Preservation and Support Act in OBRA 93 (P.L. 103-66, Item
335: (47) Sec. 13712).

Agreements between DOI and DHHS have already been formed to implement
the Indian Child Protection and Family Violence Prevention Act of 1990, which
appears as Title IV of P.L. 101-630; the Indian health Care Amendments of
1990, which appear as Title V of this law; and the Anti-Drug Abuse Act of
1986 (P.L. 99-570).

As part of an ICWA memorandum of agreement, ACF and BIA could plan to
exchange information relevant to Indian child welfare services and protections.
The Intra-Departmental Council on Native American Affairs, which was
recently re-established with a new charter, could serve as an alternative
mechanism for sharing information.

A proposal to require States to ensure compliance with ICWA protections as
part of their IV-B plans was considered in the 103rd Congress first session as
part of the draft Family Preservation and Support Act (H.R. 2264); it was
dropped from the final legislation for technical reasons. This requirement is
still being considered by the Congress as part of S. 1886, which was introduced
on November 17, 1993.

State and Tribal child welfare administrators suggested that should such State
ICWA planning be implemented, Tribes should be given an opportunity to
indicate their level of satisfaction with the State plans. This would encourage
State-Tribal communication and might better ensure State compliance with
ICWA.

State and Tribal child welfare administrators and Native American child welfare
experts also suggested that making Federal funding contingent upon
demonstrated State compliance with ICWA would greatly increase the
likelihood that States would comply with the law. Accordingly, ACF could seek
to make State compliance with ICWA a requirement for some ACF child
welfare funding, such as the Title IV-B Subpart 1 base or Section 427 incentive
funding. .

The ACF could build on the efforts of States--such as Washington--that have
already developed and tested instruments to assess State compliance with
ICWA requirements.

Overview of Entitlement Programs, 1992 Green Book, Committee on Ways and
Means, U.S. House of Representatives, 102-44, May 15, 1992, pp. 828 - 886.

D-1l


10.

P.L. 93-638 grants, which support Tribes in their efforts to become prepared to
administer P.L. 93-638 contracts. The grants are also awarded to support
Tribes in improving their administration of services for which a contract has
already been established. The P.L. 93-638 grant monies can be used to meet
the matching share requirements of other Federal funding programs, but the
contract monies cannot be. According to BIA records, in FY 1994, a total of
$4.2 million in Self-Determination discretionary grants was awarded to
approximately 70 Tribes.

According to BIA, of the approximately $60.2 million that Tribes received,
approximately $27.2 million was for Tribal social services staffing, and $33
million for contract support (or indirect administrative costs) related to the
administration of the Tribal social services programs. In 1993, Tribes received
a total of approximately $60 million, of which $28 million was for Tribal social
services staffing and $32 million was for contract support. Funding for social
services staffing comes from the BIA Social Services budget, while funds for
contract support come from a separate budget.

The ACF National Center on Child Abuse and Neglect (NCCAN) provides
additional funding to States for child protection and treatment programs under
the Child Abuse Prevention and Treatment Act (P.L. 93-247 as amended).
This funding includes Basic State grants (part I), Disabled Infants grants

(part II), State Community-Based Child Prevention grants, and Children’s
Justice Act grants. In addition, NCCAN provides Emergency Services funding
to States, and discretionary grants to both States and Tribes.

In FY 1993, $17 million was appropriated for part I grants, $3 million was
appropriated for part II grants, $5.3 million was appropriated for State
Community-Based Prevention, and $9.2 million was appropriated for Children’s
Justice Act grants. In addition, $19 million was appropriated for emergency
services and $16 million was appropriated for discretionary grants.

The Adoption Assistance and Child Welfare Act defines "child welfare services"
as "public social services which are directed toward the accomplishment of. the
following purposes: (A) protecting and promoting the welfare of all children,
including handicapped, homeless, dependent, or neglected children;

(B) preventing or remedying, or assisting in the solution of problems which may
result in, the neglect, abuse, exploitation, or delinquency of children;

(C) preventing the unnecessary separation of children from their families by
identifying family problems, assisting families in resolving their problems, and
preventing breakup of the family where the prevention of child removal is
desirable and possible: (D) restoring to their families children who have been
removed, by the provision of services to the child and the families; (E) placing
children in suitable adoptive homes, in cases where restoration to the biological
family is not possible or appropriate; and (F) assuring adequate care of
children away from their homes, in cases where the child cannot be returned


The ACF has begun to simplify the planning requirements for Title [V-B programs.

It could take additional steps to develop strategies for simplifying the application and
reporting processes. It could support pilot projects with a few Tribes to "decategorize"
the Title IV-B funding streams, or those along with other related funding. In so doing,
ACF could draw on others’ experiences, such as Iowa’s decategorization initiative for
child welfare services.* The ACF could also pursue the consolidation of funding
streams through the efforts of the Intra-Departmental Council on Native American
Affairs, which was recently reestablished with a revised charter.

The ACF could take advantage of already existing authority for the Secretaries of DOT
and DHHS to support about 30 Tribal self-governance projects, in which the funding
for several Federal programs is consolidated.“ It could also pursue broader

legislative authorities to consolidate funding stréams for Tribes. Thé DHHS, together
with the Departments of Education, Interior, and Labor, currently have authority, for
example, to integrate their funding for Tribes’ employment, training, and related
services.** This authority might serve as a useful model for legislation allowing
consolidation of the child welfare funding streams.

Further collaboration between ACF and BIA under the terms of a memorandum of
agreement offers rich opportunities to simplify grant requirements and/or consolidate
funding streams. The BIA’s programs support child welfare services for many more
Tribes than ACF currently reaches, and they involve significantly more Federal dollars
than ACF currently provides to Tribes.

Many Federal, State, and Tribal child welfare administrators with whom we spoke
urged ACF to take steps to simplify and consolidate grant programs.*® Developing a
simpler, more coherent Federal approach would be difficult and time consuming. Yet,
this course of action offers, in their opinion, significant potential for achieving real
improvement in the Federal government’s approach to funding the Tribes’ child
welfare programs. Other lesser steps, they suggest, will address the problems only at
the margin.

STRENGTHENING FEDERAL CHILD WELFARE PROTECTIONS FOR
NATIVE AMERICAN CHILDREN

The ACF could take steps to strengthen compliance with the protections required by
P.L. 96-272 and/or the protections required by ICWA. We present separately our
options for each.

Protections of P.L. 96-272

Option: Sampling tribal records. Examine more records for children in the custody of
Tribes for whom Title IV-E payments are made by the State. The protocol for drawing
samples of records for the States’ Title IV-E and Section 427 reviews has not ensured
that any records for these children would be included in the samples. The ACF’s

current effort to develop different approaches to monitoring its programs presents an

15


omnia

i DEPARTMENT OF WEALTH & HUMAN SERVICES Public Health Service

Rockville MD 20857

Date: AUG 3 (994

From: Deputy Assistant Secretary for Health Management
Operations

Subject: OIG Draft Report: “Opportunities for ACF to Improve
Child Welfare Services and Protections for Native
American Children,“ OEI-01-93-00110

To: Inspector General

We have reviewed the subject draft inspection report and are
providing the attached comments.

FEB? ZE

Attachment

SG a
SAIG

PDIG —
DIG-AS

DIG-EI

DIG-OL —-
AIG-CFAA
AIGMP

OGC/IG .
EXSEC va

pate sent_7“4{_



Most Tribes have received little or no Title IV-B funding.

In 1993, 471 of the 542 federally recognized Tribes received no Title IV-B funds from

ACF.

Several Federal requirements constrain the Tribes’ access to Title IV-B funds.

The eligibility criteria for Title IV-B child welfare funds effectively exclude
many Tribes. .

Because of the Title IV-B award formulas, few Tribes receive Title IV-B funds.
Those Tribes that do receive funds receive relatively small grants.

The application, review, and compliance requirements discourage Tribes from
seeking the funds.

OVERSIGHT OF FEDERAL CHILD WELFARE PROTECTIONS

The ACF has monitored the Tribal provision of the child welfare protections required by
the Adoption Assistance and Child Welfare Act, but few Tribal records have been

reviewed.

The ACF has conducted periodic administrative and case-record reviews of
those Tribes that have certified their eligibility for incentive funding under Title
IV-B, Section 427 of the Social Security Act; according to ACF records, 21 of
the 542 Tribes certified their eligibility for fiscal year 1993 funding.

The ACF sample selection procedure for State Title IV-E and Title IV-B,
Section 427 reviews has not guaranteed oversight of protections for those
children in Tribal custody for whom Title IV-E payments are made by States.

Neither ACF nor any other Federal agency has ensured State compliance with the
protections required by the Indian Child Welfare Act.

The Act does not assign to any Federal agency the responsibility for assuring
State compliance with its requirements.

The DHHS and DOI have not implemented the provision of the Act that
allows them to form agreements in support of child welfare services for Native

American children.

iii


aT
TABLE 4
‘TITLE XX AND TITLE IV-E FUNDS SHARED BY NINE STATES! WITH ELIGIBLE TRIBES
AND THE PROPORTION OF ELIGIBLE TRIBES THAT RECEIVED THESE FUNDS
. FISCAL YEAR 1989
} T
| State AZ co j MT {| NE NM ND OK OR sD Total

Native Americans as a Percentage of the Total State Population”

Bureau of Indian Affairs 4,63 0.08 4.78 0.33 7.44 377 8.18 0.43 8.55 3.75
(1991)
Bureau of the Census 555 0.84 5.97 0.79 8.87 4.06 8.03 1.35 1.21 436
(1990) ¢
Title XX Funds (in thousands)
~ [ ‘iitte XX Funds~ ~~~ $36,535 | $36,390 | $9,123 | $17,800 .| $16,474... $7,563 |. $36,813 | $30,052 | $2,886 |. $198,636...
Received by the State ©
Title XX Funds $176 C) o | 0 $322 0 0 0 $214 $72
Shared with Tribes 7 |
1
Proportion of Eligible 20/20 oma | oA | ONA 2n2 ONA | O/NA O”NA 29 24/51
Tribes Receiving | |
Title XX Funds 4 | H
Title XX Funds 0.48 0.00 0.00 0.00 1.95 0.00 0.00 0.00 271 036

Shared with Tribes

as a Percentage of

Title XX Funds

Received by the State % ©

Title [V-E Funds (in thousands)

Title IV-E Funds $8,061 $5,390 $3,406 | $5,660 $5,956 $2,130 $7,437 $13,087 $2,256 $53,383
Received by the State > i
‘Title IV-E Funds 0 0 i 0 | S15 $4 $334 $200 0 $51 $604
Shared with Tribes 7 | | :

7 i
Proportion of Eligible ono oa | NA 22 4722 44 |. 18127 09 29 30195

Tribes Receiving
Title 1V-E Funds 4

$ T
Title [V-E Funds 0.00 0.00 0.00 | 0.27 0.07 15.68 | 2.69 ; 0.00 2.26 1.13
| !

Shared with Tribes
as a Percentage of

Title IV-E Funds
Received by the State % ®

Sources:

a Mail Survey of State Child Welfare Departments, Fall 1993, Office of Inspector General;

6 Title IV-E Report of Expenditures, Administration for Children and Families;

e Title XX Federal Allouments to States Social Services, 1989-1993, Administration for Children and Families;

a Indian Service Population and Labor Force Estimates, January 1991, Bureau of Indian Affairs: and

e Resident Population Distribution for the United States, Regions, and States, by Race and Hispanic Origin: 1990. Bureau of the Census.
Notes:

1 Of the 24 States with the largest Native American populations, the nine listed in this table are the only States that shared Title XX and/or
Title IV-E funds with eligible Tribes between 1989 and 1993.

2 The 1991 statistics from the Bureau of Indian Affairs (BIA) reflect a much smaller Native American population than the 1990 Bureau of the
Census count. Specifically excluded from the BIA count are Native Americans who are not enrolied in federally recognized Tribes, and enrolled
members who reside in urban or rural areas not adjacent or contiguous to their reservations. The Bureau of the Census statistics reflect all
individuals who identify themselves as Indian, Eskimo. or Aleut, regardless of where they reside.



FACILITATING TRIBES’ ACCESS TO ACF FUNDS

The ACF could facilitate the Tribes’ access to each of its three major child welfare
funding streams: Title XX, Title IV-E, and Title IV-B. Because Title XX and Title
IV-E funds have flowed from ACF to Tribes indirectly through the States, we consider
them separately from Title IV-B funds that ACF awards directly to Tribes.

Title XX and Title [V-E funds

Option: Effective practices. Identify best practices and lessons learned from those States
and Tribes that have successfully negotiated Title IV-E funding agreements and Title XX
funding arrangements. Disseminate the information widely to both States and Tribes and
provide technical assistance as appropriate. This option would require minimal
resources to implement and could provide potentially valuable insights to States and
Tribes, which often struggle with this process. In pursuing this option, ACF could
build on its experiences with the few research and demonstration projects it has
funded to support the development of Tribal-State agreements.* The ACF could

also assess the feasibility of developing a model funding agreement to provide
guidance on Federal standards and expectations. Pursuing this option, however, would
not address the more intractable barriers to the formation of these funding
agreements/arrangements that result from Federal legal requirements.

Option: State reporting. Establish routine reporting by States of their efforts to address
the child welfare needs of Tribes in the States. The ACF does not now routinely receive
information from States on the needs of Tribes, the nature of Tribal service programs,
or the extent to which States share either Title XX or Title IV-E funds with Tribes.
Fuller reporting would provide ACF with better information about the circumstances
of those Tribes with which it has no other contact, and could serve as an incentive for
States to share more Title XX and Title IV-E funds. This reporting might require
legal authority, but could be incorporated into the joint-planning process that ACF
conducts with States for Title IV-B child welfare funds.

Option: Legal barriers to agreements. Change Federal requirements that have impeded
the development of Tribal-State agreements. These include requirements that (1) States
assume financial risk for Tribes’ use of Title IV-E funds; (2) a matching share be
contributed for Tribe’s Title IV-E funds; and (3) Tribes negotiate with multiple States for
Title XX and/or Title IV-E funds when their land extends across State borders. Changing
these requirements would involve legal action and so is a longer-term approach, but
one that could alleviate some of the more fundamental barriers to the flow of funds
from States to Tribes.

In eliminating the financial risk to States for the Tribes’ use of IV-E monies, ACF
would remove a major disincentive for States. The ACF could still ensure appropriate
management of the funds by holding the Tribes themselves accountable for their
performance, as it does in other programs. Allowing relief from the Title IV-E
matching-share requirement would reduce the financial burden on States and would

12


COMMENTS ON THE DRAFT REPORT

We solicited comments on our draft report from ACF, the Public Health Service
(PHS), the Assistant Secretary for Planning and Evaluation (ASPE), the Assistant
Secretary for Management and Budget (ASMB), the Assistant Secretary for
Legislation (ASL) and BIA. The ACF, PHS, and BIA returned written comments on
our report. The full text of these comments is included in appendix C. The ASMB
concurred with our report without comment. The ASPE and ASL declined written
comment.

We are pleased that ACF, PHS, and BIA agree with the general direction and.content .
of the report and that all of the three agencies volunteered their interest in working
together to improve child welfare services and protections for Native American
children.

The ACF requested that OIG staff participate in the initial meetings between the
Children’s Bureau and the Bureau of Indian Affairs to assist them in acting on the
report options. The OIG welcomes the opportunity to work with ACF and looks
forward to participating in meetings to improve child welfare services and protections
for Native American children.

The BIA requested that we omit from the final report our option to encourage or
require some Tribal child welfare programs to provide for children in their custody the
basic child welfare protections mandated by the Adoption Assistance and Child
Welfare Act. The BIA suggested that the implementation of this option could result
in an increased administrative burden for Tribes without a corresponding increase in
funding. In addition, the BIA advised against the unilateral imposition of any new
ICWA program requirements.

In response to the BIA concern, we have revised this option. We now suggest that
ACF could engage BIA, Tribal, and State representatives in an examination. of the
differences between the child welfare protections required by the Adoption Assistance
and Child Welfare Act for all children in State custody and the child welfare
protections required by BIA for children in Tribal custody. Together, the group might
decide that some differences are justified by cultural or other important considerations
while other differences should be eliminated. Such an effort could clarify child welfare
protection requirements for Tribes and could simplify compliance requirements for
Tribes that receive BIA funds and Title IV-E and/or Title IV-B incentive funds.

18


Title IV-B funds

Title [V-B funds are important to Tribes: Even though they have been the smallest
source of Federal funds for child welfare services, they can support a wide range of
programs. They are also the one funding source for Tribes over which ACF has direct
control. As noted earlier, ACF has recently taken some steps, such as simplifying
requirements for the IV-B child welfare plans, to facilitate the Tribes’ access to these
funds. In continuing these efforts, ACF could pursue the following:

Option: Technical Assistance. Strengthen technical assistance to those Tribes that are
eligible for and interested in Title IV-B child welfare and/or family support and
preservation funds. The ACF regional office staff could provide intensified support to
these Tribes with conference calls and periodic meetings that address specific concerns
raised by the Tribes and the various components of the Title IV-B funding
requirements. This option would benefit those Tribes with fewer staff, lesser grant-
writing expertise, and lesser programmatic knowledge. In addition, it could be
implemented without a major investment of time and without additional legal
authority.

Option: Eligibility. Broaden eligibility for Title IV-B funds by eliminating some of the
requirements that limit the number of Tribes that qualify. These include requirements that
Tribes must (1) have contracted with BIA for child welfare services in order to qualify for
Title IV-B Subpart 1 child welfare base funding, (2) be located in States meeting the
Section 427 protection requirements before they are eligible for Title IV-B Subpart 1 child
welfare incentive funding; and (3) qualify for a Title IV-B Subpart 2 fiscal year 1995
allotment of at least $10,000 to receive any family preservation and support services
monies. Any of these changes would require ACF to seek legal amendments to their
authorities--a long-term, time-consuming process. Broadening eligibility for Title IV-B
base and incentive funding could heighten financial pressures on the States; more
Tribes may well be funded and the States’ allotments would be reduced accordingly.
Changing the requirement for family preservation funds, on the other hand, would
have no financial impact on the States because Tribal grants are limited to one
percent of the annual appropriation. This change would, however, likely reduce grant
amounts for those Tribes that now qualify for funding. The ACF is considering a
proposal to eliminate the BIA contract requirement. Further experience with grant
awards under the new family preservation legislation could help inform ACF’s decision
about revising this eligibility requirement.

Option: Funding streams. Further streamline requirements for plans, applications, and
reporting. Pursue consolidation of funding streams for ACF's child welfare and related
programs, and for those of other Federal agencies, especially BIA. Further simplifying
requirements and consolidating funding streams would significantly reduce the burden
facing many Tribes that must piece together support from several funding sources,
each with its own requirements and often with its own program staff.

14


TABLE 5
‘TITLE XX AND TITLE IV-E FUNDS SHARED BY NINE STATES! WITH ELIGIBLE TRIBES
AND THE PROPORTION OF ELIGIBLE TRIBES THAT RECEIVED THESE FUNDS
. FISCAL YEAR 1990

State AZ co | mrt | NeE_! NM ND ok | or | sD | Tom

Native Americans as a Percentage of the Total State Population”
Bureau of Indian Affairs 4.63 00s | 4.78 033 | 744 37 818 0.43 ass i 375
(1991)

Bureau of the Census S55 0.84 5.97 0.79 8.87 4.06 8.03 1.35 727 436
(1990) ©

Title XX Funds (in thousands)

aor . $39,624 | $37,476 | $9,073 [” $17.821~| “$17,418 | $7,484 | $36,785 | $30,574 -|-$7,909 | $204,162
Received by the State ©

Title XX Funds $198 0 0 0 $372 0 ) 0 $265; $835
Shared with Tribes 7

Proportion of Eligible 2020 ona | oNA | oNA | 222 OA ONA ONA 29 | 24/51
Tribes Receiving H

Title XX Funds 7
Title XX Funds 0.50 0.00 0.00 0.00 214 0.00 0.00 0.00 334 | Oat
Shared with Tribes

as a Percentage of

Title XX Funds

Received by the State % ©

Title IV-E Funds (in thousands)

Title 1V-E. Funds 39804 | so9ss | $3504 | sogi3 | s6g93 | $3207 | s79s8 | si4zs4 | $2,000 | s61418
Received by the State | ‘ :

Title [V-E Funds 0) t) t) su | $6 $302 $225 0 sus | 672
Shared with Tribes 7 i

Proportion of Eligible 0/20 o2 OA 22 | 4n2 4/4 19227 09 29 * 3195

Tribes Receiving i
Title IV-E Funds 7 | : H
Title IV-E Funds 0.00 0.00 0.00 035 | 0.09 9.42 2.82 0.00 | 5.75 1.09
Shared with Tribes
as a Percentage i
of Title IV-E Funds i
Received by the State % 8 :

Sources:
a Mail Survey of State Child Welfare Departments, Fall 1993, Office of Inspector General;
6 Title IV-E Report of Expenditures, Administration for Children and Families;
G Tile XX Federal Allotments to States Social Services, 1989-1993, Administration for Children and Families:
a Indian Service Population and Labor Force Estimates, January 1991, Bureau of Indian Affairs; and
e Resident Population Distribution for the United States, Regions, and States, by Race and Hispanic Origin: 1990, Bureau of the Census.
Notes:

1 Of the 24 States with the largest Native American populations, the nine listed in this table are the only States that shared Title XX and/or Title,
1V-E funds with eligible Tribes between 1989 and 1993.

2 ‘The 1991 statistics from the Bureau of Indian Affairs (BIA) reflect a much smaller Native American population than the 1990 Bureau of the
Census count. Specifically excluded from the BIA count are Native Americans who are not enrolled in federally recognized Tribes. and enrolled
members who reside in urban or rural areas not adjacent or contiguous to their reservations. The Bureau of the Census statistics reflect all
individuals who identify themselves as Indian, Eskimo. or Aleut. regardless of where they reside.



OVERSIGHT OF FEDERAL
CHILD WELFARE PROTECTIONS

The ACF has monitored the Tribal provision of the child welfare protections required by
P.L. 96-272, but few Tribal records have been reviewed.

e The ACF has conducted periodic administrative and case-record reviews of
those Tribes that have certified their eligibility for Section 427 funding;
according to ACF records, 21 of the 542 Tribes certified their eligibility for
fiscal year 1993 funding.

According to P.L. 96-272, only these 21 Tribes are required to undergo the periodic
Section 427 administrative and case-record reviews to determine that children in Tribal
custody are receiving the child welfare protections required by Section 427.7 The
ACF is now re-evaluating these reviews and other of its oversight mechanisms,
however, and has postponed additional reviews.

° The ACF sample-selection procedure for State Title IV-E and Section 427
reviews has not guaranteed oversight of protections for those children in Tribal
custody for whom Title IV-E payments are made by States.

Title IV-E payments made by a State for children in Tribal custody have been
included in the pool from which a random sample has been drawn for the ACF review
of all of the State Title IV-E payments. If the Tribe that has custody of the children
has not certified its eligibility for Section 427 incentive funding and review, then the
children’s records have also been included in the pool from which the State Section
427 record review random sample has been drawn.

Neither ACF nor any other Federal agency has ensured State compliance with the
protections required by the Indian Child Welfare Act.

Many Tribal, State, BLA, and ACF child welfare administrators and Native American
child welfare experts expressed concerns about States’ inconsistent provision of the
ICWA protections, The extent to which States do comply with the law, however, is
unknown because no Federal agency has monitored compliance.

e The ICWA does not assign to any Federal agency the responsibility for assuring
State compliance with the requirements of the Act.

The BIA, to which the Act is addressed, has no funding or other formal relationships
with State child welfare agencies. Thus, it has no means by which to provide either
technical assistance or oversight for State compliance with the law.


INTRODUCTION

PURPOSE

The purpose of this study is to identify opportunities for the Administration for
Children and Families to strengthen the provision of child welfare services and
protections to American Indian and Alaska Native children.

BACKGROUND
Concerns about American Indian and Alaska Native Children in Substitute Care

American Indian and Alaska Native children (hereafter, both are referred to as Native
American children) are significantly over-represented in substitute care. According to
the most recent data, which appeared in a 1988 report prepared for the
Administration for Children and Families (ACF) and the Bureau of Indian Affairs
(BIA), Native American children represented .9 percent of the total 1986 U.S.
population of 63.8 million children, but 3.1 percent of the 287,000 children in
substitute care. About 9,000--16 of every 1,000--Native American children were in
substitute care, compared with about 5 of every 1,000 children in the general
population.’

Child welfare services for Native American children are provided primarily by either
Tribes or States. According to the 1988 report, Tribal child welfare programs
provided care for 35 percent of the 9,000 Native American children in substitute care
and State-administered programs provided care for 52 percent. The BIA and
off-reservation programs served the remaining children.”

In the 1988 report and in discussions with the Office of Inspector General, child
welfare experts, along with Federal, State, and Tribal child welfare administrators
raised concerns about serious gaps in the provision of child welfare services and
federally legislated child welfare protections to Native American children. Major
concerns include the inconsistent provision of some federally mandated child welfare
protections by States, and the limited capacity of some Tribes to provide child welfare
services--attributable, in part, to difficulties obtaining Federal funds that could be used
to strengthen Tribal programs.

Federal Oversight and Funding

Both BIA in the Department of the Interior (DOI) and ACF in the Department of
Health and Human Services (DHHS) are responsible for Federal funding of child
welfare services and oversight of child welfare protections for Native American
children.


‘THE 24 STATES WITH THE LARGEST NATIVE AMERICAN POPULATIONS:
FROM THE BUREAU OF THE CENSUS AND THE BUREAU OF INDIAN AFFAIRS
BUREAU OF THE CENSUS cags0y" | BUREAU OF INDIAN AFFAIRS (1991)
STATE POPULATION NATIVE AMERICAN POPULATION TRIBAL POPULATION
STATE Under Age 16 Under Age 16? Under Age 16?
Total Number & Percent Total Number & Percent of Native Total Number & Percent
of State Population American Population of Tribal Population ~~
AK 550,043 157,485 | 28.63 85,698 31,769} 37.07 88,160 31018 | 35.18
AZ 3,665,228 882,470 { 24.08 203,527 77,346 1 38.00 169,771 52,767 i 31.08
CA 29,760,021 | 6978035 | 23.45 || 242,164 66000! 2725 38,722 11,205 i 28.94
co 3,294,394 775,969" i 23.55 21,716 8,202 H 29.53 2,529 971 i 38.39
FL. 12,937,926 2,561,211 i 19.80 36,335 8,531 H 23.48 2,488 1,008 H 40.51
ID 1,006,749. 276,972 Hl 27.51 13,780 4,564 i 33.12 9,830 3,967 i 40.36
ks 2,477,574 597,038 H 24.10 21,965 6513 i 29.65 2,685 630 i 23.46
ML 9,295,297 2,191,548 i 2358 55,638 16,791 H 30.18 12,890 3,707 H 28.76
MN 4,375,099 1,054,051 i 24.09 49,909 18.644 i 37.36 22,423, 7,294 i 3253
MT 799,065 199,316 H 24.94 47,679 18,065 i 37.89 38,181 14,187 ' 37.16
NE 1,578,385 385,925 i 24.45 12,410 4,734 1 38.15 5,245 1,976 H 37.67
NV. 1,201,833 267,893 H 22.29 19,637 5,691 i 28.98 9,477 3,511 t 37.05
NM 1,515,069 401,321 i 26.49 134,355 49,070 H 3652 112,751 33,545 1 29.75
NY 17,990,455 3,800,149 H 21,12 62,651 17,064 H 27.24 15,548 4,301 i 27.66
NC 6,628,637 1,424,350 i 21.49 80,155 3310 H 29.08 10,114 2,485 i 2457
ND 638,800 157,722 i 24.69 25,917 10,580 i 40.82 24,093, 8,906 i 3697
OK 3,145,585 747,889 i 23.78 252,420 84.281 i 33.39 257,403 n 91,091 H 35.39
OR 2,842,321 650,202 ‘ 22.88 38,496 11,907 1 30.93 12305 | 4,262 \ 34.64
sD 696,004 178,885 i 25.70 50,575 21,287 i 42.09 59,519 I 19,138 i 32.15
TX 16,986,510 4,331,339 H 25.50 65,877 16,528 i 25.09 2,548 i 728 i 2857
UT 1,722,850 568,519 H 33.00 24,283 9,744 i 40.13 10,038 | 4,127 i 41.11
WA 4.866,692 1,138,105 i 23.39 81,483 26,426 H 32.43 $1,643, [ 17,452 i 33.79
WI 4,891,769 1,158,015 i 23.67 39,387 13.616 i 34,57 21,651 l 6,606 i 30.51
wy 453,588 | 121,587 | 26.81 9,479 3545 | 37.40 1255: 2378 | 32,78
Ea 133,319,894 | 31,005,996 | 23.26 || 1,681,596 | 554208 | 32.96 987.269 | 327260 | 33:5,
2asates Pot i !
248,709,873 | 56,889,480 | 22.87 || 1,959,234 625.136 | 31.91 _|f soo1as | 33197! 33.15

2 Resident Population Distribution for the United States, Regions, and States, by Race and Hispanic Origin: 1990, Bureau of the Census; and
Indian Service Population and Labor Force Estimates, January 1991. Bureau of Indian Affairs.

1 The 1991 BIA statistics reflect a much smaller Native American population than the 1990 Bureau of the Census count. Specifically
excluded from the BIA count are Native Americans who are not enrolled in federally recognized Tribes. and enrolled members who
reside in urban or rural areas not adjacent or contiguous to their reservations. The Bureau of the Census statistics reflect all individuals
who identify themselves as Indian, Eskimo, or Aleut, regardless of where they reside.

2 ‘The most recent data on the number of Native American children in substitute care in all of the above-listed 24 States is rom 1986.



Title [V-B Subpart 2 of the Social Security Act: The Family Preservation and Support
Services Program. Title IV-B Subpart 2 of the Social Security Act is a capped
entitlement program that was created in 1993 by the Family Preservation and Support
Act (P.L. 103-66). Subpart 2 grants are allocated on the basis of population and
provide a 75 percent Federal match to support State and Tribal provision of family
preservation services and community-based family support services. From 1994 to
1998, authorized Subpart 2 funding will increase from $60 million to at least $255
million. One percent of the annual appropriation is to be set-aside for Tribes that
qualify for at least $10,000 in funding.

Funding Programs Administered by BIA

The Indian Child Welfare Act (ICWA) Grant Program. The ICWA (P.L. 95-608)
authorizes grants to federally recognized Tribes and organizations to support the
establishment and operation of Indian child and family service programs on or near
reservations and to support the preparation and implementation of child welfare
codes. The ICWA grants were originally awarded competitively. Beginning in fiscal
year 1994, however, ICWA monies will be made available to all federally recognized
Tribes as formula grants. The law specifies that ICWA funds may be used by Tribes
to meet the matching share requirements of other Federal programs for child and
family services funding. The ICWA grant funding for Tribes has increased from $7.2
million in 1989 to $22.9 million in 1994.

The Indian Self-Determination Act Contract and Grant Programs. The Indian Self-
Determination and Education Assistance Act of 1975 (P.L. 93-638) and the Indian
Self-Determination Amendments of 1987 (P.L. 100-472) direct the BIA to establish
service contracts with Tribes that want to provide for themselves the services that BIA
would otherwise have provided for them. These contracts can be established only with
those Tribes that reside in States that are not recognized as primary service providers
for the Tribes. When contracts are established, the BIA transfers to the Tribes the
funds the Federal agency would have expended in the delivery of the services and
additional funds for indirect costs (such as rent and telephone use).

The BIA also awards discretionary self-determination grants to some Tribes to prepare
them to administer service contracts or to improve their administration of services for
which contracts have already been established. The self-determination grants, which
are awarded on a competitive, one-time basis. can be used to meet the matching share
requirements of other Federal funding programs; the contract monies cannot.

The Snyder Act Child Welfare Assistance Program. The Snyder Act [ch. 115, 42 Stat.
208 (1921)] authorized BIA expenditures for the benefit, care, and assistance of the
American Indian population. The funds are used for general support, education,
relief, and conservation of health, among other purposes: and are provided only when
Tribal members cannot obtain such assistance from other sources. Through the
Snyder Act, BIA provides monies to members of federally recognized Tribes for child
welfare assistance, including foster care, residential care, and special needs.°*

A-3


Option: State reporting. Establish routine reporting by States of their efforts to
address the child welfare needs of Tribes in the States.

Option: Legal barriérs to agreements. Change Federal requirements that have
impeded the development of Tribal-State agreements. These include requirements
that (1) States assume financial risk for Tribes’ use of Title IV-E funds; (2) a matching
share be contributed for Tribe’s Title IV-E funds; and (3) Tribes negotiate with
multiple States for Title XX and/or Title IV-E funds when their land extends across
State borders.

Option: Direct grants. Fund Tribes directly with Title XX and/or Title IV-E funds, as
ACF has in some of its other programs.

Title IV-B funds

Option: Technical Assistance. Strengthen technical assistance to those Tribes that are
eligible for and interested in obtaining Title IV-B funds.

Option: Eligibility. Broaden eligibility for Title IV-B funds by eliminating some of
the requirements that limit the number of Tribes that qualify. These include
requirements that Tribes must (1) have contracted with BIA for child welfare services
in order to qualify for Title IV-B Subpart 1 child welfare base funding, (2) be located
in States meeting the Section 427 protection requirements before they are eligible for
Title IV-B Subpart 1 child welfare incentive funding; and (3) qualify for a Title IV-B
Subpart 2 fiscal year 1995 allotment of at least $10,000 to receive any family
preservation and support services monies.

Option: Funding streams. Further streamline requirements for plans, applications,
and reporting. Pursue consolidation of funding streams for ACF’s child welfare and
related programs, and for those of other Federal agencies, especially BIA.

STRENGTHENING FEDERAL CHILD WELFARE PROTECTIONS FOR NATIVE
AMERICAN CHILDREN,

The ACF could take steps to strengthen compliance with the protections required by
the Adoption Assistance and Child Welfare Act and/or the protections required by the
Indian Child Welfare Act. We present our options for each separately.

Protections Required by the Adoption Assistance and Child Welfare Act

Option: Sampling tribal records. Examine more records for children in the custody of
Tribes for whom Title IV-E payments are made by States.


OPPORTUNITIES FOR ACF TO IMPROVE CHILD WELFARE SERVICES AND
PROTECTIONS

The ACF has an important role to play in facilitating the Tribes’ access to Federal
child welfare funding and strengthening Federal efforts to ensure that States and
Tribes are providing required protections to Native American children.

We identify specific options for ACF to consider in these two areas: access to funds
and oversight of protections. In the text, we discuss the implications of each for ACF,
the Tribes, and the States. Many options could be implemented together; a few are
mutually exclusive.

We recognize that making constructive change in this area requires sensitivity to the
complex relationships among Tribes and States and various Federal agencies. To
implement some options, ACF would need to change existing legal authorities. Other
options entail difficult tradeoffs and politically sensitive choices. We also recognize
that ACF faces growing program responsibilities at a time of increasing Federal
financial constraints. Accordingly, in each area, we begin with those options that ACF
could undertake in the near term with minimal investment of staff or program
resources, and within existing legal authorities. We follow with other options that
ACF could pursue over the longer term; these entail more fundamental changes in
practices and relationships, changes in existing legal authorities, and/or larger
investments of administrative or program resources.

As ACF considers future directions, we urge that it work closely with BIA, perhaps
through the memorandum of agreement mechanism allowed by the Indian Child
Welfare Act. Similarly, we urge ACF to involve Tribal and State government
representatives in these deliberations as it has in other program and policy arenas in
recent months.

FACILITATING TRIBES’ ACCESS TO ACF FUNDS

The ACF could facilitate the Tribes’ access to each of its three major child welfare
funding streams: Title XX, Title IV-E, and Title IV-B. Because Title XX and Title
IV-E funds have flowed from ACF to Tribes indirectly through the States, we consider
them separately from Title IV-B funds that ACF awards directly to Tribes.

Title XX and Title IV-E funds

Option: Effective practices. Identify best practices and lessons learned from those
States and Tribes that have successfully negotiated arrangements for sharing Title XX
and/or Title IV-E funds. Disseminate the information widely to both States and
Tribes and provide technical assistance as appropriate.


The ACF, in part because it lacks clear jurisdiction, has provided little technical
assistance to States related to ICWA. Many of the regional ACF staff who have
responsibility for Indian child welfare issues indicated that they are unclear about the
role they should play in encouraging or assisting the States to comply with the law.

° The DHHS and DOI have not implemented the ICWA provision that allows
them to form agreements in support of child welfare services for Native

American children.

The ICWA allows DOI and DHHS to enter into agreements for establishing,
operating, and funding Indian child and family service programs, both on and off
reservations. Through such agreements, ACF and BIA could clarify responsibility for
ensuring State compliance with the requirements of the law. No such agreement,
however, has been formed in the 15 years since the passage of the Act.

10


TABLE OF CONTENTS

PAGE

EXECUTIVE SUMMARY ...... ccc ccc cece n ene ene e nee i
INTRODUCTION ......--- 00000005 decd e eee e eee eee eee neee 1
ACF FUNDING FOR TRIBAL CHILD WELFARE SERVICES ..........+--- 5
OVERSIGHT OF FEDERAL CHILD WELFARE PROTECTIONS .......... 9
OPPORTUNITIES FOR ACF TO IMPROVE

CHILD WELFARE SERVICES AND PROTECTIONS .............+-+- 11
+ Facilitating Tribes’ Access to ACF Funds ........-.-.- eee cesses eeeee 12
+ Strengthening Child Welfare Protections for Native American Children ...... 15
COMMENTS ON THE DRAFT REPORT ........ 0: cece eee eee eee eee 18
APPENDICES
A: Major Funding from ACF and BIA for Tribal Child Welfare Services

in Fiscal Years 1992 and 1993 6... . cece cece eee eee eee e eee e neces A-l

B: Title IV-E and Title XX Funds Shared by States with Tribes:
Results of the Mail Survey Conducted by the Office of Inspector General ... B-1

C: Complete Comments on the Draft Report ........ 6... eee e ee eee eee C-1

D: NOteS.... cece ec ce ee te eee een ee eee e eee n en enes D-1


opportunity to identify ways to strengthen its oversight of the Tribes’ compliance with
the P.L. 96-272 protections. Any new process, perhaps through more representative
sampling, needs to ensure that Tribes are as accountable as the States for providing
these protections. A more extensive review of Tribal records need not pose greater
financial risk to the States if ACF were to hold the Tribes themselves accountable for
their performance, as suggested in an option above.

Option: Protections and BIA grantees. Invite BIA, Tribal, and State representatives to
examine the differences between the child welfare protections required by the Adoption
Assistance and Child Welfare Act for all children in State custody and the child welfare
protections required by BIA for children in Tribal custody. Tribes that receive Title IV-E
and/or Title IV-B incentive funds are required to provide the P.L. 96-272 child welfare
protections for children in their custody. Tribes that receive BIA funding for child
welfare services are required to adhere to the social service guidelines in the BIA
manual. If ACF, BIA, Tribal, and State representatives were to examine the
differences between the P.L. 96-272 requirements and the BIA manual guidelines, the
group might decide that some differences are justified by cultural or other important
considerations while other differences should be eliminated. Such an effort could
clarify child welfare protection requirements for Tribes and could simplify compliance
requirements for Tribes that receive BIA funds and Title IV-E and/or Title IV-B
incentive funds.

If the group were to agree that the required child welfare protections for children in
Tribal custody should be amended, it could pursue a legislative remedy to this end.
The group could also collaborate in’ developing and providing technical assistance to
Tribes about existing and any newly mandated protections and means of ensuring their
provision to children in the custody of Tribal child welfare agencies.

This option need not necessitate ACF monitoring of Tribes’ compliance. The ACF
and BIA could work together under the terms of a memorandum of agreement to
address this issue and they could assess the feasibility of incorporating a monitoring
process into BIA’s already-required annual evaluations of Tribal grantees. Pursuing
this option, however, could be a time-consuming, long-term effort.

Protections of P.L. 95-608 (ICWA)

Option: Technical assistance. Strengthen technical assistance to State child welfare
agencies and State courts to improve their understanding of the [CWA protections. The
ACF could rely on its regional office staff to work more intensively with the States.
They could provide State officials with information about the protections and share
information about any lessons learned from the States’ experiences in implementing
ICWA.” They could invite BIA staff to discuss ICWA protections in ACF
conference calls and in various ACF meetings with State officials. They could
encourage those State courts applying for the new grants authorized by the family
preservation legislation to examine their handling of the ICWA protections as part of
the overall assessment of their foster care and adoption proceedings.** This option

16


Department of Health and Human Services

._ OFFICE OF
INSPECTOR GENERAL

OPPORTUNITIES FOR ACF
TO IMPROVE
CHILD WELFARE SERVICES AND
PROTECTIONS
FOR NATIVE AMERICAN CHILDREN

2 JUNE GIBBS BROWN
i C Inspector General

AUGUST 1994
OEI-01-93-00110



Eg. JOE FINKE, ESQ-

200 Windward Passage
Clearwater, Florida 34630
(813) 447-3215

adalteed: FLORIOA and SHOLANA wgta corres

June 29, 1994

The Honorable Ada E. Deer, Assistant secretary
Bureau of Indian affairs

1849 Cc Street, N.W., Mail Stop 4140
Washington, D-C- 20240

Dear Ms. Deer,

y am writing to you concerning the enforcement of and
compliance with the Indian Chila Welfare Act enacted in 1978. I
am an attorney practicing in Clearwater, Florida. Iam involved
tn a lawsuit brought by my De a
registered member of the Eastern Shawnee {Tribe of Oklahoma in
federal court. This case is designated , et al v- state
of Florida et al (Case #93 .

very briefly, the case involves the removal of Ms. iii
two sons by the Florida Department of Health and Rehabilitative
Services (H.R-S.) in 1989 on unsubstantiated charges of
insufficient shelter and ‘lack of food. H.R.S- made no inquiry as
to the ethnic packground of the children ox my client even though
the forms contain a space for this designation. Ms.

states that she informed fhe H.R.S- investigator ‘that she
received penefits from her tribe, however, H.R.S. chose not to
follow the T.c.W.A. until Ms. contacted her tribe who
then contacted Indian Child Welfare jin Oklahoma who then
contacted Florida H.R.S. .

one count of. the complaint seeks to force H.R.S. to inquire
whether the parties they. investigate are Native American and if
so, to follow the I.C.W.A. The Secretary of H.R.S., James Towey,
according to the newspaper article enclosed, pelieves such an
inquiry is too much to ask of his department. He stated that
perhaps a name may be good enough or perhaps such an inquiry
would be appropriate jin a state such as South Dakota, but it

would be too purdensome in Florida.

My client, the Florida Indian Alliance, Florida A.I.M-, and
myself agree that, in order for the I.C.W.A. to be effective,
states must be required to inquire into the ethnic backgrounds as
an initial part of any investigation. I have received inquiries
from Texas, New Mexico, and Oklahoma regarding this case.

believe the B.I.A- and yourself should also take 4 position in


Title IV-E is the largest source of Federal funding that supports foster care and
adoption services. In 1993, ACF distributed about $2.54 billion in Title IV-E funds.’

Title XX, the Social Services Block Grant program, supports many social services
programs, including those for child welfare. In 1993, $2.8 billion was allotted for social

services.

Title IV-B provides smaller amounts to support child and family services. In 1993,
$295 million was appropriated for Subpart 1 of Title IV-B to support both base
funding and Section 427 incentive funding for child welfare programs.'? Title IV-B
Subpart 2 was created by the Family Preservation and Support Act, which was passed
as part of the Omnibus Budget Reconciliation Act of 1993 (P.L. 103-66). Subpart 2
will provide $60 million for family preservation and support services in 1994.4 ~~

In addition to funding child welfare services, ACF oversees the provision of child
welfare protections mandated by the Adoption Assistance and Child Welfare Act of
1980 (P.L. 96-272).'5 This law ties child welfare services funding under Titles IV-E
and IV-B Subpart 1 to compliance with requirements for child welfare programs.
Further, it specifies standards for agency planning and internal control systems, and
the timely provision of certain child welfare services and protections to all children in
public custody. The law requires that each State receiving Title IV-E funds provide
child welfare services to all eligible children, including Native American children, in
the State. Tribes may assume responsibility for providing these services to Tribal
children. In all instances, ACF expects States to coordinate with Tribes for the
provision of services and protections to Tribal children who are in public custody.

The Objectives of this Report

The ACF has already begun to take some important steps to better ensure services
and protections for Native American children. This report responds to ACF’s interest
in identifying options for additional ways to make its funds more accessible to Tribes
and better ensure child welfare protections for these children. Accordingly, the first
section of the report summarizes the extent to which Tribes are now able to access
ACF’s child welfare and family services funding.’® It also summarizes the current
status of oversight for the provision of federally legislated child welfare protections to
Native American children.” Further, it identifies those factors that constrain ACF in
its efforts to ensure that services and protections are provided to these children.

The second section of the report identifies a variety of options for ACF to consider as
it develops plans for future efforts to ensure child welfare services and protections for
Native American children. We recognize that ACF’s consideration of some of these
options will occur as part of the broader review it has begun of its oversight
mechanisms for State child welfare programs.


The BIA Role: The BIA serves as the focal point for Federal programs for American
Indians and Alaska Natives.> Within BIA, the Division of Social Services administers
a broad range of programs, including child welfare services, for Tribal members. The
BIA provides child welfare services funding to Tribal governments or those who care
for Tribal children under three laws: The Indian Child Welfare Act (ICWA)

(P.L. 95-608); the Snyder Act [ch. 115, 42 Stat. 208 (1921)]; and the Indian Self-
Determination Act (P.L. 93-638). The BIA does not fund States to provide child
welfare services for Tribal children.

Through ICWA, BIA provides grants for Tribal child welfare programs.‘ In fiscal
year 1993, BIA distributed about $9.7 million in ICWA grants to 375 Tribes (see
appendix A for a discussion of this and other funding for Tribal child welfare services
from BIA and ACF).

In addition to providing funding, ICWA stipulates child welfare protections for Tribal
children in State custody. The law establishes Federal standards for removing these
children from their families and placing them in foster or adoptive homes that reflect
the unique values of Tribal culture.

Under the Snyder Act, BIA provides child welfare assistance payments as additional
support for child welfare services for Tribal children. These payments are made,
however, only when Tribes are unable to obtain funds from other sources. In 1993,
BIA distributed a total of about $20 million in child welfare assistance payments to
support an average monthly caseload of 3020 children.‘

The Indian Self Determination Act (P.L. 93-638) provides legal authority under which
some Tribes have contracted with BIA to administer their own child welfare services
with funds that BLA would have expended on the administration of those services.”
According to the most recent data available, 154 Tribes received about $60.2 million in
1992 to administer their own social services.* Some of these monies supported child
welfare services, but the exact amount is unknown.

The ACF Role: The ACF directs, funds, and oversees programs for vulnerable
children and families in the United States. Within ACF, the Children’s Bureau’
supports State and Tribal programs to provide child welfare, foster care, adoption, and
family preservation and support services.? These programs are funded under three
titles of the Social Security Act: Titles IV-E, XX and IV-B. The ACF awards funds
under these three Titles to support State child welfare services for all children,
including Native American children, in State custody.!° States may share these

monies with Tribal child welfare agencies.!' The ACF also awards Title IV-B funds
directly to some Tribes.


53.

54,

5S.

56.

In 1990 dollars, funding decreased from $5,790 million in 1977 to $2,565 million
in 1992. In nominal dollars, funding increased from $2,796 million to $2,800

million over thjs same period. Ibid. pp. 829 - 830.

The other four goals are: 1) achieving or maintaining economic self-support;
2) achieving or maintaining self-sufficiency; 3) preventing or reducing
inappropriate institutional care by providing for community-based care,
home-based care, or other forms of less intensive care; and 4) securing referral
or admission for institutional care when other forms of care are not
appropriate, or providing services to individuals in institutions. Ibid. p. 832.

Federal reimbursement for State foster care assistance payments and State
adoption assistance payments are_made.as an open-ended match at the State’s
Medicaid rate (which averages about 54 percent nationally). State placement
services and administrative costs related to both foster care and adoption are
reimbursed as an open-ended Federal match at a rate of 50 percent. Training
expenses are reimbursed as an open-ended match at a rate of 75 percent.
Nonrecurring adoption expenses are reimbursed as an open-ended Federal
match at 50 percent. Ibid. p. 846.

The Snyder Act also authorizes funds to support payments to members of
federally recognized Tribes for general welfare assistance, participation in the
Tribal Work Experience Program, and non-medical institutional or custodial
care of adults. Miscellaneous assistance payments authorized by the Act
include burial assistance and emergency assistance to prevent hardship caused
by fire, flood, or acts of nature.

D- 12


4. Page 15, “Protections of P.L. 96-272"

It is necessary to work closely with the Bureau of Indian
Affairs (BIA) in establishing a protocol, which could

include BIA or BIA Tribal contractors, in reviewing Title IV-E
records and include ACF or State Protective Service workers in
reviewing BIA and BIA contracted program records to ensure the
basic protections identified by P.l. 96-272. Although the law
applies specifically to ACF and States that receive Title IV-E
payments, the basic protections are examples of good casework
services which BIA and BIA contracted programs should he
incorporating into substitute care services. Both ACF and BIA
have a vested interest in pursing this for the benefit of all

children.

5. Page 16, “Protections of P.L. 95-608 (ICWA)"

The options presented have potential for being effective. We
believe it is the opinion of the OIG that the option to ensure
States‘ compliance would result in an increased administrative
burden fox ACF. If the responsibility is shared with BIA,
neither ACF nor BIA would have to assume the bulk of the work.
Through a Memorandum of Agreement, ACF could make use of BIA.
expertise and staff to address the areas of concerms
identified, e.g., strengthening staff expertise, developing
program quidance for State child welfare agencies and State
courts and developing a compliance review process.

We would recommend that ACP work with the Indian Health
Service (IHS) Mental Health and Social Services program to
implement the OIG options. Although IHS does not have
responsibility for custody of children, the IHS provides
services to children and families involved with State child

protective agencies.


ar

TABLE 1
‘THE 24 STATES WITH THE LARGEST NATIVE AMERICAN POPULATIONS:
TOTAL POPULATION STATISTICS 1
FROM TIIE BUREAU OF THE CENSUS AND THE BUREAU OF INDIAN AFFAIRS’

BUREAU OF THE CENSUS (1990) BUREAU OF INDIAN AFFAIRS (1991)?
STATE TOTAL NATIVE AMERICAN POPULATION Number TRIBAL POPULATION
POPULATION Percent of total || Tavest | Percent of total
L___Number_|_population _{_|_Number___population _|

AK 550,043 85,698 15.58 2222 88,160 i 16.03
AZ 3,665,228 203,527 555 20 169,71 | 4.63
CA 29,760,021 2A2,164 0.81 102 38,722 | 0.13
co 3,294,394 27,776 0.84 2 2,529 i 0.08
FL 12,937,926 36,335 0.28 2 2488! 0.02
1D 1,006,749 13,780 137 4 9830! 098
KS 2,477,574 21,965 0.89 4 2,685 | 0.11
MI 9,295,297 55,638 I 0.60 7 12,890 : 0.14
MN 4,375,099 49,909 1.14 6 22,423 i 0.51
MT 799,065 417,679 5.97 7 [38,181 i 4.78
NE 1,578,385 12,410 0.79 6 5,245 0.33
NV 1,201,833 19,637 1.63 16 i 9,477 ! 0.79
NM 1,515,069 134,355 8.87 23 112,751 : 744
NY 17,990,455 62,651 0.35 7 15,548 | 0.09
NC 6,628,637 80,155 1.21 L 10,114 : 0.15
ND 638,800 25,917 4.06 4 24093 | 3.77
OK 3,145,585 252,420 8.03 36 257,403, 8.18
OR 2,842,321 38,496 135 9 | i305 | 0.43
sD 696,004 50,575 i 7.27 9 ! 59,519 8.55
TX 16,986,510 65,877 | 0.39 3 i 2,548 0.02
UT 1,722,850 24,283 ! 141 7 | 10,038 0.58
WA 4,866,692 81483 | 1.67 2 | 51,643 1.06
wi 4,891,769 39387 | 081 nf 21651 0.44
wy 453,588 oa _| 2.09 2 | tas 1.60

Total for || 133,319,894 1,681,596 | 1.26 5373 | 987,269 0.74

24 States u t

1959234 | 0.79 542

Sources: 7

Notes:

w

Resident Population Distribution for the United States, Regions, and States, by Race and Hispanic Origin: 1990.
Bureau of the Census;

Indian Service Population and Labor Force Estimates, January 1991, Bureau of Indian Affairs: and

List of Tribes that have been recognized by the Bureau of Indian Affairs (58 Fed. Reg. 54.222, Oct. 20, 1993).

The 1991 statistics from the Bureau of Indian Affairs (BIA) reflect a much smaller Native American
population than the 1990 Bureau of the Census count. Specifically excluded from the BIA count are Native
Americans who are not enrolled in federally recognized Tribes, and enrolled members who reside in urban or
rural areas not adjacent or contiguous to their reservations. The Bureau of the Census statistics reflect all
individuals who identify themselves as Indian. Eskimo, or Aleut, regardless of where they reside.

Recognized Alaska Native entities include Tribes. villages, communities, associations. and corporations.

Tribes whose land extends into muitiple States have been counted in each State.



this matter. I am requesting that you and/or the B.I-A. assist

in this effort by:

1) joining in this one count cf the lawsuit or
2) filing a brief with the U.S. District Court for the
Middle District of Florida in Tampa supporting the

demand that Florida begin making appropriate inquiry or

3) addressing a letter to the Honorable Lawton Chiles,
Governor of Florida and Secretary Towey requesting that
the policy be changed to require the appropriate
inquiry or - .

4) all of the above-

This is an important issue - one in which the B.I.A. can
show that it will take positions supporting the preservation of
the cultural heritage and continuity of members of the First

Nations.

I look forward to your response.

CQULS,

E. Joe Finke, Esqd-.

C-10


APPENDIX B

TITLE IV-E AND TITLE XX FUNDS SHARED BY STATES WITH TRIBES:
RESULTS OF THE MAIL SURVEY CONDUCTED BY
THE OFFICE OF INSPECTOR GENERAL
In the fall of 1993, the Office of Inspector General conducted a mail survey of the 24
States with the largest Native American populations. We collected information on the
amount of Title IV-E and Title XX funds these States shared with Tribes from fiscal
year 1989 through fiscal year 1993. All 24 States completed and returned the survey.

We determined the size of the Native American populations in these States using both
the 1991 Indian Service Population and Labor Force Estimates, prepared by the Bureau
of Indian Affairs, and the 1990 Resident Population Distribution for the United States,
Regions, and States, by Race and Hispanic Origin, prepared by the Bureau of the
Census. The list of 24 States comprises those 20 that had largest Native American
populations in absolute numbers and those 20 that had the largest Native American
populations as percentages of the total State populations.

On the following pages are tables that summarize the demographic and financial

information we collected.
Tables

1 The 24 States with the largest Native American populations: Total population statistics
from the Bureau of the Census and the Bureau of Indian Affairs

2 The 24 States with the largest Native American populations: Population statistics for
children under age 16 from the Bureau of the Census and the Bureau of Indian Affairs

3 Title XX and Title IV-E funds shared by nine States with eligible Tribes, summary for
fiscal years 1989 through 1993

4 Title XX and Title IV-E funds shared by nine States with eligible Tribes and the _
proportion of eligible Tribes that received these funds, fiscal year 1989

5 Title XX and Title IV-E funds shared by nine States with eligible Tribes and the
proportion of eligible Tribes that received these funds, fiscal year 1990

6 Title XX and Title IV-E funds shared by nine States with eligible Tribes and the
proportion of eligible Tribes that received these funds, fiscal year 1991

7 Title XX and Title IV-E funds shared by nine States with eligible Tribes and the
proportion of eligible Tribes that received these funds, fiscal year 1992

8 Title XX and Title IV-E funds shared by nine States with eligible Tribes and the
proportion of eligible Tribes that received these funds, fiscal year 1993

B-1


Option: Protections and BIA grantees. Invite BIA, Tribal, and State representatives
to examine the differences between the child welfare protections required by the
Adoption Assistance and Child Welfare Act for all children in State custody and the
child welfare protections required by BIA for children in Tribal custody to ensure that
adequate protections are ensured for all Native American children in public custody.

Protections Required by the Indian Child Welfare Act

Option: Technical assistance. Strengthen technical assistance to State child welfare
agencies and State courts to improve their understanding of the protections required
by the Indian Child Welfare Act.

Option: Ensuring States’ compliance. Establish clear authority for ACF to oversee
the States’ provision of the protections required by the Indian Child Welfare Act.

COMMENTS ON THE DRAFT REPORT

We solicited and received written comments on our draft report from ACF, the Public
Health Service (PHS), and BIA. The complete text of these comments appears in
appendix C. We are pleased that ACF, PHS and BIA all agree with the general
direction and content of the report and that all three agencies volunteered their
interest in working together to improve child welfare services and protections for
Native American children.

The BIA requested that we omit from the final report our option to encourage or
require some Tribal child welfare programs to provide for children in their custody the
basic child welfare protections mandated by the Adoption Assistance and Child
Welfare Act. The BIA suggested that the implementation of this option could result
in an increased administrative burden for Tribes without a corresponding increase in
funding. In addition, the BIA advised against the unilateral imposition of any new
ICWA program requirements. In response to the BIA concern, we have revised the
option to clarify our intent that ACF work with BIA, Tribal, and State representatives
to ensure that Federal requirements provide adequate protections for Native
American children in either State or Tribal custody.


allow those Tribes with limited resources to receive funds with little or no match.
Such a reduction or elimination of matching share requirements for Tribal funding has
been implemented in other ACF programs®. Finally, designating a lead State for
negotiations and the transfer of funds is one possible approach to simplifying the
process for those Tribes with land that extends across State borders.

Option: Direct grants. Fund Tribes directly with Title XX and/or Title IV-E funds, as
ACF has in some of its other programs. This option would be the surest route to _
facilitating the Tribes’ access to these two important funding streams. It would,
however, require legislative action and would entail fundamental changes in
relationships, processes, and resources.

The precedent for ACF to fund Tribes directly already exists.°” The agency deals
with Tribes directly in funding, for example, the Title IV-B child welfare and family
preservation and support grants, the JOBS program, and the Child Care and
Development Block grants.** Many Tribal officials told us they would welcome this
approach. It would facilitate their access to the funds, and would be more consistent
with Tribal sovereignty.” With this direct approach, ACF could ensure that Tribal
grantees have the capacity to provide quality services and are properly accountable for
the Federal funds.

On March 24, 1994 a bill (H.R. 4162) that would mandate a three-percent set aside of
Title XX monies for Tribes was introduced into the Congress. Direct Title XX grants
to Tribes might be opposed by States, however; such grants would increase financial
pressures on States because the grants would be drawn from the States’ allotments.”

With respect to Title IV-E funding, most State officials with whom we talked favored
ACF dealing directly with Tribes. This direct approach for Title IV-E would eliminate
the need for Tribal-State agreements and, because Title IV-E is an uncapped Federal
entitlement, would not affect the monies available to the States.

This direct approach for Title IV-E would, however, increase Federal outlays as more
Tribes seek reimbursement. It would also heighten demands on ACF to strengthen its
own expertise, to provide more technical assistance to Tribes, and to manage an
administrative process for more grantees.*! Given the heavy demands on its
administrative resources, ACF could alleviate this burden somewhat by such strategies
as contracting for technical assistance to Tribes, as it is now considering, and
integrating its monitoring efforts with those of its other programs. The ACF could
also examine the feasibility of using a nongovernment organization for reviews of plans
and applications, for grants administration, or for monitoring, as well as for technical
assistance. In so doing, ACF could retain important authorities such as those for
setting policy and priorities, for approving Federal expenditures, and for hearing
appeals.

13


40.

41.

42.

43.

44,

45.

46.

47.

Previous efforts to require a Title XX set aside for Tribes have failed in the
Congress.

This burden might be somewhat less with Title XX grants because, as block
grants, the demands on grantees and Federal agencies are deliberately
minimized.

This nongovernment organization would need to be culturally appropriate,
knowledgeable about Indian child welfare services and Federal grants
administration, and willing to be subject to ACF monitoring.

Improving Children’s Welfare: Learning from Iowa, National Conference of
State Legislatures, Denver, CO, 1990.

The Indian Self Determination and Education Assistance Act Amendments,
P.L. 100-472, 1988, Title III - Tribal Self-Governance Demonstration Project.

The Indian Employment, Training, and Related Services Demonstration Act
(P.L. 102-477). This legislation authorizes the waiver of any regulation, policy,
or procedure promulgated by any of the four departments to allow for
consolidation of similar programs. The legislation requires the DOI to develop
a single report format for project activities and expenditures, and a single
system of Federal oversight for the projects.

In addition, P.L. 95-134 Title V allows Insular Areas to consolidate various
grants, including Title XX block grants, and formula grants for child welfare
services and for child abuse and neglect (45 C.F.R. Sec. 97.12).

Insular areas include the Virgin Islands, Guam, American Samoa, Trust
Territory of the Pacific Islands, and the Government of the Northern Mariana
Islands.

The ACF has demonstrated its commitment to finding more coherent
approaches to improving opportunities for vulnerable children supported by its
programs. The ACF Commissioner for Children, Youth and Families, for
example, has affirmed the importance of the Federal government "putting the
pieces together, because you can’t make a difference for families if you are
thinking only in narrow and categorical terms." See "ACYF Commissioner
(Olivia Golden) Speaks Her Mind," Child Protection Report, Vol. 20, No. 2. p. 9,
January 21, 1994.

The State and Tribal child welfare administrators with whom we spoke
suggested that State workers could benefit from an endeavor in which State and
Tribal representatives collaborated in the development of State ICWA
legislation, policy, and procedures, and an ICWA manual for State child welfare
agency and court workers. It was also suggested that State child welfare agency
and court workers could benefit from ICWA training provided by BIA staff

D- 10


TABLE 8
‘TITLE XX AND TITLE IV-E FUNDS SHARED BY NINE STATES! WITH ELIGIBLE TRIBES
AND THE PROPORTION OF ELIGIBLE TRIBES THAT RECEIVED THESE FUNDS
FISCAL YEAR 1993
= —= ee
State AZ | co | mr NE | NM | ND | OK | OR | sD I Total
Native Americans as a Percentage of the Total State Population”
Bureau of Indian 463 | 008 | 4.78 033 1.44 377 8.18 0.43 8.55 35
Affairs (1991)
Bureau of the Census 555 084 | 5.97 0.79 8.87 4.06 8.03 135 720 436
(1990) ©
Title XX Funds (in thousands)
Title XX Funds $41,030 | $36,877 | $8,945 | $17,666 | $16,961 | $7,154 | $35,220 | $31,817 |- $7,792- | $203,462
Received by the State ©
Title XX Funds $1,844 t) 0 0 S471 ) 0 sim $314 $2,800
Shared with Tribes 7
Proportion of Eligible 2021 | ONA | ONA | OMA | 2722 | O/NA { O/NA 89 29 32/61
Tribes Receiving |
Title XX Funds @ '
Title XX Funds 4.49 0.00 | 0.00 0.00 2.78 0.00 | 0.00 054 4.03 1.38
Shared with Tribes 1
as a Percentage of |
Title XX Funds |
Received by the State % © t
Title IV-E Funds (in thousands)
Title IV-E Funds $20,849 | $23,312 | $5,127 | $11,382 | $6,790 | $5,643 | $10,012 | $16,803 | $3,136 | $103,054
Received by the State ?
Title IV-E Funds 0 sso | ss32 | si71 sil 480 | 300 $46 $270 $1,860
Shared with Tribes 7
Proportion of Eligible 0/20 2R 4n 22. sp 4/4 24227 29 39 46/102
Tribes Receiving
Title IV-E Funds 7
| Tite 1v- Funds 0.00 021 | 1038 | 150 0.16 gs1 : 3.00 0.27 861 1.80
Shared with Tribes i
as a Percentage of j
Title IV-E Funds {
Received by the State % ® ;

Sources:

ano ee

Notes:

B-9

Mail Survey of State Child Welfare Departments, Fall 1993, Office of Inspector General:
Tidle IV-E Report of Expenditures, Administration for Children and Families:

Title XX Federal Allotments to States Social Services, 1989-1993, Administration for Children and Families;
Indian Service Population and Labor Force Estimates, January 1991, Bureau of Indian Affairs: and
Resident Population Distribution for the United States, Regions, and States, by Race and Hispanic Origin: 1990. Bureau of the Census.

Z Of the 24 States with the largest Native American populations, the nine listed in this table are the only States that shared Title XX and/or Title ,
IV-E funds with eligible Tribes between 1989 and 1993.

2 The 1991 statistics from the Bureau of Indian Affairs (BIA) reflect a much smaller Native American population than the 1990 Bureau of the
Census count. Specifically excluded from the BIA count are Native Americans who are not enroiled in federally recognized Tribes, and enrolled
members who reside in urban or rural areas not adjacent or contiguous to their reservations. The Bureau of the Census statistics reflect all
individuals who identify themselves as Indian, Eskimo, or Aleut, regardless of where they reside.

eee eee ae



APPENDIX C

COMPLETE COMMENTS ON THE DRAFT REPORT

In this appendix we present the full text of the comments we received on the draft
report from the Administration for Childrén and Families (ACF), the Public Health
Service (PHS) and the Bureau of Indian Affairs (BIA) in the Department of the
Interior (DOT).

Comments from ACF C-2
Comments from PHS C-3
Comments from BIA C-6


21.

22.

To be eligible for Title IV-E funds, Tribal organizations must administer child
welfare programs that meet the standards specified by P.L. 96-272 and must be
prepared to make formal Title IV-E funding agreements (as required by ACF)
with the States in which they are located.

The number of States that shared Title IV-E funds with Tribes increased from
five in 1989 to eight in 1993; the number of States that shared Title XX funds
increased from three to four over this same period.

The amount of funding that Tribes received, as a percentage of the States’
aggregate funding, also increased. The amount of Title IV-E funding that
Tribes received increased from about 1.7 percent of the 5 States’ aggregate
funding in 1989 to about 2.3 percent of the 8 States’ aggregate funding in 1993.
The amount of Title XX funding that Tribes received increased, from about 1.2
percent of the 3 States’ aggregate funding in 1989 to about 2.9 percent of the 4
States’ aggregate funding in 1993.

The proportion of eligible Tribes receiving Title IV-E and Title XX funds also
increased. In 1989, 9 States reported that 30 (30 percent) of the 101 eligible
Tribes in the States received Title IV-E funds. In 1993, 11 States reported that
46 (43 percent) of the 108 eligible Tribes in the States received these funds. In
1989, 3 States reported that 24 (47 percent) of the 51 eligible Tribes in the
States received Title XX funds. In 1993, 6 States reported that 32 (51 percent)
of the 61 eligible Tribes in the States received these funds.

The Omnibus Budget Reconciliation Act of 1993 (OBRA 93) barred ACF from
issuing disallowances as a result of Section 427 and Title IV-E reviews until
October 1, 1994. The ACF is now reevaluating its Section 427 review process
and its other oversight mechanisms for State child welfare programs. Until
recently, the ACF review process operated as follows:

When a State passed through Title IV-E monies from ACF for the care of a
child who was in Tribal custody, then payments made for that child’s care
entered the pool from which a sample was drawn for the ACF review of State
Title IV-E payments. If the Title IV-E review identified an individual payment
that was not made in accordance with the law, then ACF disallowed that Title
IV-E payment. If too many payments were disallowed in this first review, then
ACF conducted a review of a larger sample of payments. Based on the
proportion of disallowed payments found in this second review, ACF disallowed
a proportion of the State’s total annual Title IV-E funds.

If the Tribe that had custody of the child had not certified its eligibility for
Section 427 incentive funding and review, then the child’s record also entered
the population from which the State Section 427 record review sample was
drawn. If the Section 427 review demonstrated that the required child welfare


APPENDIX A

MAJOR FUNDING FROM ACF AND BIA
FOR TRIBAL CHILD WELFARE SERVICES
IN FISCAL YEARS 1992 AND 1993

FUNDING AUTHORITY Fiscal Year 1992 | Fiscal Year 1993 -
* $2.8 billion was allotted for ail social | * $2.8 billion was allotted for all social
services in the U.S. services in the U.S.
The Social Security Act * $1.5 billion was distributed to the 24 | * $1.5 billion was distributed to the 24
(Title XX) States we surveyed.! Of this, $28 States we surveyed Of this, $2.8
million (.2 percent) reached Tribes. million (.2 percent) reached Tribes.
ACF * $25 billion was expended. | * $2.9 billion was expended.
The Social Security Act * $1.7 billion was distributed to the 24 i * $1.8 billion was distributed to the 24
(Title [V-E) States we surveyed! Of this, $1.4 | States we surveyed! Of this, $1.9
million (.1 percent) reached Tribes. | million (.1 percent) reached Tribes.
The Social Security Act * $274 million was expended. | * $295 million was appropriated.
(Title IV-B Subpart 1) ‘© Of this, $491,533 (.2 percent) reached | © Of this. $762,000 (.3 percent) reached
Child Welfare Services Tribes. i Tribes.
‘The Social Security Act
(Title IV-B Subpart 2) * Funding begins in fiscal year 1994. $60 million is authorized for that year,
Family Preservation and Support with $600,000 (1 percent) set-aside for Tribes.
Services
‘The Indian Child Welfare Act © $14.2 million was distributed to Tribes. | * $9.7 million was distributed to Tribes?
(P.L. 95-608) |
+ $60.2 million was distributed to support. | — * $60 million was distributed to support
BIA The Indian Self-Determination Act social service programs administered ' social service programs administered
(P.L. 93-638) by Tribes? | by Tribes.*
‘The Snyder Act * $18 million was distributed for child ' * $20 million was distributed for child
{ch. 115, 42 Stat. 208 (1921)] welfare assistance payments for Tribal welfare assistance payments for Tribal
children. i children.

© Tile IV-E Expenditures, Administration for Children and Families;

+ Title IV-B Subpart 1: Fiscal Year 1994 Budget, U.S. Department of Health and Human Services. April 8, 1993, p. 64:
* Title IV-B Subpart 2: The Family Preservation and Support Act (P.L. 103-66);

* Mail survey of 24 State Child Welfare Departments, Office of Inspector General, Fall 1993:

« The Office of Tribal Services and the Division of Social Services in the Bureau of Indian Affairs: and

+ Resident Population Distribution for the United States, Regions, and States, by Race and Hispanic Origin, 1990, Bureau of the Census; and Indian
Service Population and Labor Force Estimates, January 1991, BLA.

Notes:
T The list of 24 States (Alaska, Arizona. California, Colorado. Florida, Idaho, Kansas, Michigan, Minnesota, Montana, Nebraska, Nevada,

New Mexico, New York, North Carolina, North Dakota, Oklahoma, Oregon, South Dakota. Texas, Utah, Washington, Wisconsin, and Wyoming)
includes those 20 States that had the largest Native American populations. in absolute numbers: and those 20 States that had the largest Native
‘American populations, calculated as a percentage of the total State populations.

2 The FY 1993 ICWA allocation for Tribes was originally set at $18.09 million, of which about 8.4 million was re-programmed.

3 Of the $60.2 million. approximately 27.2 million came from the BIA Social Services budget to pay for Tribal social services staffing. The remaining.
$33 million came from a BIA indirect cost pool and paid for contract support and indirect administrative costs.

4 Of the $60 million, approximately 28 million came from the BIA Social Services budget and $32 million came from the BIA i

irect cost pool.

For descriptions of each funding program, see pages A-2 - A-3.

A-l


36.

37.

38.

39.

Research and Demonstration program, the matching share required from
Native American grantees is less than that for other grantees and can be
waived entirely.

If ACF were to pursue a direct funding approach, it would want to address the
implications of this approach for those Tribes and States that have already
developed effective relationships and administrative arrangements for sharing
Title XX and/or Title IV-E funds.

The ACF recently affirmed the importance of the direct grants in a Program
Instruction to States and Tribes: "The Department of Health and Human
Services (HHS) believes that the direct funding of Native American Tribal
Organizations (ITOs) strengthens Tribal child welfare services programs, as
intended in the goals and requirements of the Social Security Act (the Act) as
amended." See ACYF-PI-93-13, June 24, 1993.

Other block grants that DHHS awards directly to tribes include those for
community services, alcohol and drug abuse and mental health services,
preventive health and health services, primary care, and low-income home
energy assistance.

The regulations for these block grants describe the direct funding approach:
"The Secretary has determined that Indian tribes and tribal organizations would
be better served by means of grants provided directly by the Secretary to such
tribes and organizations out of the State’s allotment of block grant funds than if
the State were awarded its entire allotment. Accordingly, where provided for
by statute, the Secretary will, upon request of an eligible Indian tribe or tribal
organization, reserve a portion of a State’s allotment and, upon receipt of the
complete application and related submission that meets statutory requirements,
grant it directly to the tribe or organization." [(45 C.F.R., sec. 96.40-.48; (1993)].

In an April 29, 1994 memorandum for the heads of executive departments and
agencies; President Clinton stressed the importance of government-to-
government relationships between Federal agencies and Tribes. In this
memorandum, the President listed guidelines for executive branch activities to
"ensure that the rights of sovereign Tribal governments are fully respected.”
(59 Fed. Reg. 22951, May 4, 1994.)

The BIA, according to the recently revised ICWA regulations, views its
relationship with Tribes as one in which "the Federal government has a
government-to-government relationship with the sovereign governments of
federally recognized Indian tribes and Alaska native villages as contemplated by
Public Law 95-608. Therefore, federal funds for which a tribe is eligible are
distributed directly to the tribe by a Federal Finance System." (59 Fed. Reg.
2249, Jan. 13, 1994.)


In addition to funding child welfare services, ACF monitors States and some Tribes to
ensure their compliance with the Adoption Assistance and Child Welfare Act

(P.L. 96-272), which specifies standards for agency planning and internal control
systems, and the timely provision of certain child welfare services and protections to all
children in public custody.

This Report

The ACF has already begun to take some important steps to better ensure services
and protections for Native American children. This report responds to ACF’s interest
in identifying options for additional ways to make its funds more accessible to Tribes
and better ensure child welfare protections for these children.

The report is based on data gathered from four primary sources: a mail survey of
State child welfare agencies in those 24 States with the largest Native American
populations; a review of data on ACF funding to Tribes and States; a review of
relevant Federal legislation, regulations, and policy; and interviews and discussion
groups with child welfare experts and administrators in ACF, BIA, State and Tribal
child welfare agencies, and Native American child welfare organizations.

ACF FUNDING FOR TRIBAL CHILD WELFARE SERVICES
Most Tribes have received little or no Title IV-E or Title XX funding.

In 15 of the 24 States with the largest Native American populations, eligible Tribes
received neither Title IV-E nor Title XX funds from 1989 to 1993. Among the factors
that limit the Tribes’ access to Title IV-E and Title XX funds are several Federal

requirements.

e The Congress provided no authority for ACF to award Title IV-E and Title XX
funds directly to Tribes; and legislation neither requires nor encourages States
to share funds with Tribes.

e Efforts to develop the necessary Tribal-State Title IV-E funding agreements
and Title XX funding arrangements are constrained by requirements that put
States at financial risk for Tribes’ use of Title IV-E funds, mandate a matching
share for Tribes’ Title IV-E funds, and necessitate Tribal negotiations for
funding with multiple States in instances in which Tribal land extends across

State borders.

ii


3

Some tribes have entered Into tribal-state agreements to implement the Title
1V-E program on their reservations. However, many tribes have stated that
they are not compensated on the same basis as state workers responsible for
the supervision and monitoring of Title 1V-E’foster care children, Many of
these agreements are more beneficial to the States than to tribes taking on
extra burdens to administer a Title 1V-E program. In the final analysis, direct
funding to tribes would take care of this problem.

Addressing these issues in a timely and productive manner is of critical
importance to Indian children, families and communities. We. are exceedingly
pleased that these matters have now been given the attention that they merit,
and we are hopeful that this focus on various areas of concern will greatly
improve outcomes for Indian children, The BIA has indicated its willingness
to meet at any time with ACF to discuss this important draft audit report. To
date, ACF has been unable to schedule such a meeting.

Attachment


ne =

. ——
United States Department of the ned ————==

——
—_ 7
, —_—__— I
BUREAU OF INDIAN AFFAIRS — a
Washington, D.C. 20245 -~ 068
a HN REPHIETNE 1G x
Social Services SAIG

Mail Stop 310-SIB JUL 27 194 poIG = ——
DIG-AS —_—

priest a

DIG-OL ——-

AIG-CFAA ———
AIG-MP
oGciG
mace
Memorandum pate sent_2—2_
To: Director, Office of Audit and Evaluation
From: gaging Director. Office of Tribal Services polbe “a UT ermek
Subject: Division of Social Services’ Comments on the Office of Inspector

General Draft Report Entitled, “Opportunities for ACF to Improve
Child Welfare Services and Protections for Native American
Children," dated June 1994 :

This memorandum officially transmits the Bureau of Indian Affairs (BIA),
Division of Social Services’ comments on various aspects of the above-
referenced report as discussed during the July 7, 1994, telephone conference
amongst Ms. Dana Miller, Project Leader for the report; Mr. David Hickman,
Chlef of the BIA’s Division of Social Services; and Ms. Betty Tippeconnie,
Branch Chief for Child and Family Services.

The report recommends that the Administration for Children and Families
(ACE) within the Department of Health and Human Services improve its
coordination with the BIA. However. there are no recommendations
specifically addressed to the BIA.

The BIA appreciates the emphasis Ms. Miller placed on working with BIA and
Indian organizations as she engaged in the research and developmental
phases of the draft report. She is to be commended for mastering the
complexities of the subject matter, for presenting the material with great
clarity and for delineating realistic and reasonable recommendations on how
federal agencies may improve child welfare services and protections to
American Indian children.


Between 1989 and 1993, the number of States that shared these funds with Tribes, the
number of Tribes receiving the funds, and the amount of money they received, as a
percentage of the States’ aggregate funding, increased very little?

The Tribes’ access to Title I[V-E and Title XX funds is constrained by some important
factors, which are summarized below.

. The Congress provided no authority for ACF to award Title IV-E and Title XX
funds directly to Tribes; and legislation neither requires nor encourages States
to share funds with Tribes.

The ACF requires that formal Title IV-E funding agreements be achieved before
States transfer Title IV-E monies to Tribes. These funding agreements define the
responsibility of the Tribes to meet the requirements of P.L. 96-272 and they outline
the conditions under which States will transfer funds. States and Tribes are allowed
greater flexibility in making arrangements for the transfer of Title XX funds. Such
arrangements may include contracts, grants, or other State-approved mechanisms for
the transfer of funds and the provision of social services.

. Efforts to develop Tribal-State Title IV-E funding agreements and Title XX
funding arrangements are constrained by several factors.

Disputes Between Tribes and States about Issues Unrelated to Child Welfare: In many
cases, to arrive at Title IV-E funding agreements and Title XX funding arrangements,
the two governments must circumnavigate longstanding points of contention about
such issues as land and jurisdiction. Several of the child welfare administrators and
experts with whom we spoke indicated that a fundamental lack of trust between State
and Tribal representatives contributed to the incidence of protracted and/or failed
negotiations. One State child welfare administrator reported that disagreements over
land rights and jurisdiction had prevented his State from reaching an agreement with a
Tribe. An Indian child welfare expert reported that Tribal sovereignty became a key
issue in negotiations between another State and a Tribe when the State suggested that
the funding agreement would be contingent upon the Tribal adoption of the complete
set of State child welfare policies and procedures.

State Responsibility for Tribal Compliance with the Requirements of P.L. 96-272 for Title
IV-E Funds: Some States are reluctant to form Title [V-E agreements with Tribes
because, according to law, the States are then accountable for Tribal compliance with
the requirements of Title IV-E and, in some instances, Title IV-B. Thus, States can
lose both Title IV-E and Section 427 incentive funds if Tribal records are out of
compliance. Officials that we interviewed from two States volunteered that ACF
had disallowed Title IV-E payments that the States had transferred to Tribes.


32.

33.

34.

35.

To obtain Section 427 incentive funding, Tribes that receive Title [V-B child
welfare base funding must first certify that they are in compliance with the
requirements of Section 427 and, thus, eligible. Tribes have then been subject
to periodic reviews by ACF to verify their compliance and eligibility.

Among the required protections are those to prevent the need for removing a
child from his or her home, the development of a case plan and review system
for each child, and the determination of goals for each child in foster care.

The child welfare plans that are developed with ACF by the 59 Tribes that
receive Title IV-B child welfare base funding have provided another mechanism
for oversight of the Tribal child welfare programs. These plans, which must be
submitted at least once every three years, describe the Tribes’ child welfare
services and the steps the Tribes will take to expand and strengthen their
programs.

’ The ACF has monitored State child welfare programs through review of the

Title IV-E and Title IV-B child welfare plans that it requires from States,
through Title IV-E administrative, training, and payment reviews, through
Section 427 administrative and case-record reviews, and through voluntary
program reviews of State child welfare programs.

The ACF Title [V-E and Section 427 reviews have entailed an examination of
samples of children’s records to assure that the children’s families are eligible
for Title IV-E payments, adequate court and case-worker review has been
conducted, the foster homes are licensed, individual payments are allowable,
and the children are receiving the protections required by P.L. 96-272.

The ACF has conducted neither Title IV-E reviews nor program reviews of
Tribal child welfare programs. Furthermore, ACF does not require Tribes to
submit Title [V-E child welfare plans.

For more information about ACF oversight of State programs, see the draft
report Oversight of State Child Welfare Programs (OEI-01-00770), issued by the
Office of Inspector General in January 1994.

The ACF has funded at least three different organizations to support the
development of Tribal-State agreements for child welfare services and
protections. Some of the funding was used for a conference which provided
information to both Tribal and State representatives about the development of
such agreements. In addition, some funding supported the development of an
agreement model.

The Job Opportunities and Basic Skills Training (JOBS) program has no
requirement for a matching share from Tribes. Under the Child Welfare


some child welfare services with ICWA grants or other funds, are ineligible to receive
Title IV-B child welfare funds. The ACF is considering a regulatory change to address
this issue.

. Because of the Title IV-B award formulas, few Tribes receive Title IV-B funds.
Those Tribes that do receive funds receive relatively small grants.

The formula that ACF uses to calculate the amount of the Title IV-B child welfare
base-funding awards results in many grants being quite small.” Furthermore, ACF
requires Tribes to contribute a 25 percent matching share, in cash or in kind, for this
funding. Of the 59 Tribes that were funded in 1993, 8 received annual Title IV-B
child welfare funding of less than $1000. The mean amount of the Title IV-B child
welfare grants awarded to the 59 Tribes was about $12,900.29 The ACF is
considering a regulatory change to the Title IV-B base-award formula that would
double the amount of grant funding to individual Tribes.

P.L. 103-66 mandates that 1 percent of the annual appropriation of the new

Title IV-B funding for family preservation and support services be set aside for Tribes.
The law ties Tribal allotments to population counts, however, and it prohibits
allotments to Tribes that qualify for less than $10,000. The ACF estimates that 41 of
the 542 federally recognized Tribes will be eligible for funding.

. The application, review, and compliance requirements discourage Tribes from
seeking the funds.

In our discussions with State and Tribal child welfare administrators and experts, most
agreed that it is more difficult for Tribes than for States to obtain available funding.
Tribal child welfare programs have fewer staff and a higher staff turn-over rate than
their State counterparts. Many tribal child welfare programs also lack staff with grant-
writing expertise. In addition, Tribes seeking support for their child welfare programs
must meet the different eligibility, application, review, and compliance requirements
for each piece of funding they are able to obtain from Federal, State, local, or private
sources.

For many Tribes, the requirements tied to ACF’s Title IV-B child welfare funding--
contracting services from BIA, submitting child welfare plans to ACF, certifying and
demonstrating compliance with Section 427, and contributing a 25 percent matching
share--have been Particularly burdensome, given the relatively small amounts of
funding available.*!


EXECUTIVE SUMMARY

PURPOSE

The purpose of this study is to identify opportunities for the Administration for
Children and Families to strengthen the provision of child welfare services and
protections to American Indian and Alaska Native children.

BACKGROUND
Indian Child Welfare Services

American Indian and Alaska Native children (hereafter, both are referred to as Native
American children) are significantly over-represented in substitute care. According to
the most recent data, about 9,000--16 of every 1,000--Native American children were
in substitute care in 1986, compared with about 5 of every 1,000 children in the
general population.

Many child welfare experts and Federal, State, and Tribal child welfare administrators
have raised concerns about serious gaps in the provision of child welfare services and
federally legislated child welfare protections to these children. Federal responsibility
for funding these services and ensuring these protections rests with the Bureau of
Indian Affairs (BIA) in the Department of the Interior and the Administration for
Children and Families (ACF) in the Department of Health and Human Services
(DHHS).

The Bureau of Indian Affairs

The BIA provides the largest amount of Federal funding for Tribal child welfare
services. It funds child welfare services for federally recognized Tribes through the
Snyder Act, the Indian Self-Determination Act, and the Indian Child Welfare Act.
The Indian Child Welfare Act also stipulates child welfare protections for Tribal
children in State custody: it establishes Federal standards for removing these children
from their families and placing them in foster or adoptive homes that reflect the
unique values of Tribal culture. The BIA does not fund States to provide child
welfare services for Tribal children.

The Administration for Children and Families

The ACF funds State and some Tribal child welfare programs under three titles of the
Social Security Act. Title IV-E supports State foster care and adoption assistance
programs. Title XX supports State social services, including child welfare services.
States may share these monies with Tribal child welfare agencies. Title IV-B supports
States’ and some Tribes’ child welfare programs and family preservation and support
services.


TABLE 7
‘TITLE XX AND TITLE IV-E FUNDS SHARED BY NINE STATES! WITH ELIGIBLE TRIBES
AND THE PROPORTION OF ELIGIBLE TRIBES THAT RECEIVED THESE FUNDS

FISCAL YEAR 1992

State co NE NM ND OK | OR sD Total

Native Americans as a Percentage of the Total State Population”
Bureau of Indian 4.63 0.08 ara | 033’ | 744 377 8.18 0.43 855 3.75
Allairs (1991) i
Bureau of the Census 555 0.84 597 | 079 8.87 4.06 8.03 135 727 436
(2990) ! .
Title XX Funds (in thousands)

Title XX Funds $29,884 | $37,193_| $9,040 | $18,069 | $17,138 | $7,403 | $3661 | $31,629 | $8,020 | $204,537
Received by the State © |
Title XX Funds $1,844 0 o | 0 $397 0 0 $148 457 | $2,846
Shared with Tribes 7 i
Proportion of Eligible 2020 | ONA | OA : OA | 222 | ONA | OA 69 29 30/60
Tribes Receiving
Title XX Funds 7
Title XX Funds 4.62 0.00 0.00 0.00 232 0.00 0.00 0.47 5.70 139
Shared with Tribes
as a Percentage of

i
Title XX Funds |
Received by the State % © i

Title IV-E Funds (in thousands)

Title IV-E Funds $17,283 | $19,175 | $4344 | $9,740 | $8315 | $4249 | $9,470 | $20,023 | $2,435 | $95,034
Received by the State i

‘Title IV-E Funds 0 $41 $171 | $173 $22 $513 $275 $31 $216 $1,442

Shared with Tribes 7 H
Proportion of Eligible 0720 mw nc) $22 4/4 22n7 "9 39 43/102

Tribes Receiving j
Title IV-E Funds 7 : i

Title IV-E Funds 0.00 o21 | 3.94 178 0.26 12.07 2.90 ois |
Shared with Tribes | i
as a Percentage of
Title IV-E Funds : 1
Received by the State  ® i

8.87 1.52

Sources:
a Mail Survey of State Child Welfare Departments, Fall 1993, Office of Inspector General;
b Tile IV-E Report of Expendisures, Administration for Children and Families;
G Title XX Federal Allotments to States Social Services, 1989-1993, Administration for Children and Families;
4 indian Service Population and Labor Force Estimates, January 1991, Bureau of Indian Affairs; and
e

Resident Population Distribution for the United States, Regions, and States, by Race and Hispanic Origin: 1990, Bureau of the Census.

Notes:

1 Of the 24 States with the largest Native American populations, the nine listed in this table are the only States that shared Title XX and/or
Title IV-E funds with eligible Tribes between 1989 and 1993.

2 ‘The 1991 statistics from the Bureau of Indian Affairs (BIA) reflect a much smaller Native American population than the 1990 Bureau of the

Census count. Specifically excluded from the BIA count are Native Americans who are not enrolled in federally recognized Tribes, and
enrolled members who reside in urban or rural areas not adjacent or contiguous to their reservations. The Bureau of the Census statistics

reflect all individuals who identify themselves as Indian, Eskimo. or Aleut, regardless of where they reside.

B-8



could be accomplished without significant investment of time and without additional
authority, but it would likely require ACF to improve its expertise about ICWA.

Option: Ensuring States’ compliance. Establish clear authority to oversee the States’
provision of the ICWA protections. The ACF has established, extensive relationships
with State child welfare agencies and has long monitored the States’ compliance with
the general child welfare protections of P.L. 96-272. Thus, ACF has valuable
experience that it could apply to overseeing the States’ compliance with the ICWA
protections, which apply only to Tribal children in State custody.

In establishing a clear basis of authority, ACF could work with BIA under the terms of
a memorandum of agreement to spell out its responsibilities.” Alternatively, ACF
could seek a legislative remedy, either as an amendment to the ICWA statute, or as a
requirement that States assure compliance with the ICWA protections as part of their
Title IV-B plans.*°

Implementing this option would result in a somewhat increased administrative burden
for ACF. It would require strengthening staff expertise, developing program guidance
for State child welfare agencies and State courts, and developing a compliance review
process. It would, however, allow ACF to meet the important need for Federal
oversight of these protections. As ACF redesigns its monitoring processes more
generally, it could address ways to include the ICWA protections in its reviews of the
other child welfare protections required of the States.°!

17


OFFICE OF INSPECTOR GENERAL

The mission of the Office of Inspector General (OIG), as mandated by Public Law 95-452, as
amended, is to protect the integrity of the Department of Health and Human Services’ (HHS)
programs as well as the health and welfare of beneficiaries served by those programs. This
statutory mission is carried out through a nationwide network of audits, investigations, and
inspections conducted by three OIG operating components: the Office of Audit Services, the
Office of Investigations, and the Office of Evaluation and Inspections. The OIG also informs
the Secretary of HHS of program and management problems and recommends courses to
correct them.

OFFICE OF AUDIT SERVICES

The OIG’s Office of Audit Services (OAS) provides all auditing services for HHS, either by
conducting audits with its own audit resources or by overseeing audit work done by others.
Audits examine the performance of HHS programs and/or its grantees and contractors in
carrying out their respective responsibilities and are intended to provide independent
assessments of HHS programs and operations in order to reduce waste, abuse, and
mismanagement and to promote economy and efficiency throughout the Department.

OFFICE OF INVESTIGATIONS

The OIG’s Office of Investigations (OI) conducts criminal, civil, and administrative
investigations of allegations of wrongdoing in HHS programs or to HHS beneficiaries and of
unjust enrichment by providers. The investigative efforts of OI lead to criminal convictions,
administrative sanctions, or civil money penalties. The OI also oversees State Medicaid fraud
control units which investigate and prosecute fraud and patient abuse in the Medicaid program.

OFFICE OF EVALUATION AND INSPECTIONS

The OIG’s Office of Evaluation and Inspections (OEI) conducts short-term management and
program evaluations (called inspections) that focus on issues of concern to the Department,
the Congress, and the public. The findings and recommendations contained in these inspection
reports generate rapid, accurate, and up-to-date information on the efficiency, vulnerability,
and effectiveness of departmental programs.

This report was prepared under the direction of Mark R. Yessian, Ph.D., Regional Inspector
General, and Martha B. Kvaal, Deputy Regional Insepctor General, Boston Region, Office of
Evaluation and Inspections. Participating in this project were the following people:

Boston Region Headquarters

Dana Miller, Project Leader Alan Levine, Program Specialist
Barry McCoy

David Veroff

For additional copies of this report, please contact the Boston regional office at 617/565 1050.


APPENDIX D

NOTES

Indian Child Welfare: A Status Report, Final Report of the Survey of Indian
Child Welfare and Implementation of the Indian Child Welfare Act and Section
428 of the Adoption Assistance and Child Welfare Act of 1980, prepared by CSR,
Inc. in Washington DC and Three Feathers Associates in Norman, Oklahoma,
April 18, 1988, pp. ES/3 - 1/26.

According to the report, 9,005 American Indian children were in substitute care
in the United States on June 30, 1986.

No more recent, comprehensive statistical information on Native American
children in substitute care has been collected. The ACF report Analysis of 1989
Child Welfare Data presents information from 26 States, excluding Alaska,
Colorado, Florida, Idaho, Kansas, Michigan, Montana, Nebraska, New York,
North Carolina, Oklahoma, Oregon, and Wyoming, which are among the States
with the largest American Indian populations.

Ibid. State-administered programs provided care for 4,643 (52 percent) of
these children; Tribes provided care for 3,156 (35 percent); BIA provided care
for 797 (9 percent), and off-reservation programs served 409 (5 percent).

The BIA programs only serve members of Tribes that the Bureau has formally
acknowledged or recognized. This Federal recognition may be the result of a
treaty, statute, executive or administrative order, or history of dealings between
the Federal government and a Tribe.

In order to achieve Federal acknowledgement or recognition, a Tribe that
petitions the DOI must have governmental authority over its members and
occupy a specified territory or community viewed as distinctly Indian. Other
criteria for Federal acknowledgement include evidence that the tribe has been
identified as an American Indian entity since 1900 and that tribal members are
descendants of an historical Indian tribe or tribes that functioned as a single
autonomous political entity [25 CFR 83.7 (1994)].

The ICWA grant monies can be used by tribes to meet the matching share
requirements of other Federal funding programs.

Beginning in FY 1994, ICWA funds will be included with social services
administration funding and other human services funding in the Tribal Priority
Allocations for Tribes’ base human services funding. Accordingly, ICWA funds
are no longer exclusively designated for child welfare services. The ICWA
monies can be reprogrammed by the Tribes to support other Tribal Priority

D-1


ee

[ TABLE 3
‘TITLE XX AND IV-E FUNDS SHARED BY NINE STATES! WITH ELIGIBLE TRIBES,
SUMMARY FOR FISCAL YEARS 1989 THROUGH 1993

State | AZ [. co | MT | NE NM ND OK | OR sD Total

Native Americans as a Percentage of the Total State Population”

T

Bureau of Indian 4.63 0.08 478 0.33 7.44 377 8.18 0.43 8.55 3.75

Affairs (1991) 4 ,

Bureau of the Census 555 0.84 5.97 0.79 8.87 4.06 8.03 135 7.27 4.36.

(1990) ©

Title XX Funds (in thousands)

Title XX Funds $196,571 | $185,327 | $45,299 | $89,502 | $85,061 | $37,159 | $181,700 | $155,414 | $39,683 | $1,015,716

Received by the State ©

Title XX Funds $5,906 0 0 0 $1,936 0 ° $319 $1,564 $9,725
| shared with Tribes 7

Title XX Funds Shared 3.00 0.00 0.00 | 0.00 2.28 0.00 0.00 | 021 3.94 0.96

with Tribes i i

as a Percentage of Title
XX Funds Received by

the State %

Title IV-E Funds (in thousands)
Title IV-E Funds $68,621 | $63,362 | $21,029 | $41,532 | $35,851 | sis.ss6 | $43,760 | $79,775 | $12,327 | $384,843
Received by the State ?
Title [V-E Funds ) $101 $703 $464 S61 $2129 | $1,250 S77 S771 $5,556
Shared with Tribes 7
Title IV-E Funds 0.00 0.16 3.34 1.12 0.17 11.45 2.86 0.10 6.25 1.44
Shared with Tribes

as a Percentage of Title
IV-E Funds Received
by the State 4? I

Sources:
a Mail Survey of State Child Welfare Departments, Fall 1993, Office of Inspector General:
sd Tile IV-E Report of Expenditures, Administration for Children and Families;
e Title XX Federal Allouments to States Social Services, 1989-1993, Administration for Children and Families;
4 Indian Service Population and Labor Force Estimates, January 1991, Bureau of Indian Affairs; and
e

Resident Population Disribution for the United States, Regions, and States, by Race and Hispanic Origin: 1990, Bureau of the Census.

Notes:

1 Of the 24 States with the largest Native American populations, the nine listed in this table are the only States that shared Title XX and/or Title
IV-E funds with eligible Tribes between 1989 and 1993.

2 ‘The 1991 statistics from the Bureau of Indian Affairs (BIA) reflect a much smaller Native American population than the 1990 Bureau of the
Census count. Specifically excluded from the BIA count are Native Americans who are not enrolled in federally recognized Tribes, and enrolled
members who reside in urban or rural areas not adjacent or contiguous to their reservations. The Bureau of the Census statistics reflect all
individuals who identify themselves as Indian, Eskimo, or Aleut, regardless of where they reside.



PHS COMMENTS ON THE OFFICE OF INSPECTOR GENERAL _(OTG)
DRAFT REPORT: “OPPORTUNITIES FOR ACF TO IMPROVE

CHILD WELFARE SERVICES AND PROTECTIONS FOR NATIVE
AMERICAN CHILDREN, “, OEI~-01~93~-00110

General _ Comments

The overall report appears to have taken into consideration
eritical aspects of Administration for Children and Families
(ACF) funded programs as they relate to Tribal programs and
acknowledges the potential for improving the relationship
between ACF and Tribal programs.

Child welfare services on Indian reservations need to be
enhanced in terms of funding and professional expertise.
Direct funding, rather than having to deal with State
agencies, would be a better approach. Technical assistance
for Indian Tribes regarding program administration and
professional child welfare services needs to be emphasized.

Many of the options identified to rectify the weaknesses are
realistic and achievable. ‘The stated options for creating
easier access to funds by Tribes are worth implementing if ACF
makes funds available to Tribes.

We have the following comments on specific statements in the
OIG report.

1. Page ii, "Most fribes have received little or no Title
IV-E or Title XX funding." (second bullet, “Efforts to
develop the necessary Tribal-State Title IV-E funding.
aes)

State-fribal agreements are very important and are necessary.

fribal Child Welfare Services should not be limited because of

State lines, especially where reservations extend across State

lines. Tribes should be allowed to exercise Federal

juxisdiction in Tribal and State courts.

2. Page iii, third bullet, “fhe application, review, and
compliance requirements discourage Tribes from seeking
the funds."

Based on our experience in dealing with the application
process for Title IV-E, we believe the process is complicated
and set-up to discourage Tribes from seeking the funds. There
needs to be technical assistance in the application process.

3. Page v, “Title IV-B funds," “Option: Technical
Assistance

We believe this is an excellent option for obtaining Title IV-
B funds.

C-4


Funding Programs Administered by ACF

Title XX of the Social Security Act: The Social Services Block Grant Program. Title XX
of the Social Security Act was created in 1974 by P.L. 92-672, which authorized
entitlement funding for States to support social services with certain goals, requirements
and limitations. In 1981, P.L. 97-35 amended Title XX to establish a block grant for
social services. These block grants are allocated to States on the basis of population, and
are available without a State matching share requirement. From 1980 to 1993, Title XX
entitlement funding declined in real dollars by 55 percent.**

Title XX funding supports State programs to address five legislated goals, including
preventing or remedying neglect, abuse, or exploitation of children and adults unable to
protect their own interests; and preserving, rehabilitating or reuniting families.** While
the law places some restrictions on the use of Title XX monies, States are allowed much
discretion in determining the services they will provide and the groups that are eligible
for these services. States are further allowed to determine the proportion of funds that
will support service provision and the proportion of funds that will be used for staff
training, administration, planning, evaluation, and technical assistance. For fiscal years
1983 through 1991, the most frequently provided services were: day care for children;
home-based services; protective services for children; adoption services; social-support
services; and special services for the disabled.

States may share funds with private agencies and Tribes to provide Title XX services.

Title IV-E of the Social Security Act: The Foster Care and Adoption Assistance
Programs. In 1980, P.L. 96-272 transferred the Title IV-A foster care program to Title
IV-E of the Social Security Act, specified protections for children in foster care, and
established a new adoption assistance program under Title IV-E. Foster care funding is
available only for children whose families are eligible for Aid for Families with
Dependent Children (AFDC); adoption assistance funding is provided for special needs
children who are eligible for AFDC or supplemental security income (SSI). Title IV-E
funds are provided as Federal matching funds.*> From 1981 to 1993, spending for
foster care and adoption assistance grew from $309 million to over $2.5 billion.

States may contract with private agencies and form agreements with Tribes to provide
Title IV-E services.

Title IV-B Subpart 1 of the Social Security Act: The Child Welfare Services Program.
Title [V-B Subpart 1 is a capped entitlement program that provides 75 percent matching-
share grants to States and Tribes for a broad range of child welfare services. Grant
amounts are calculated with a formula using the State’s or Tribe’s under-21 population
and per-capita income. These funds can be used to pay for services for all children. P.L.
96-272 mandated certain protections for foster care children and made additional
Subpart 1, Section 427, incentive funding available to States and Tribes, contingent upon
the provision of these protections. From 1981 to 1993, Title IV-B spending for child
welfare services increased from $164 million to $295 million.

A-2


METHODOLOGY

Our report is based on data gathered from four primary sources. First, to determine
the amount of Title IV-E and Title XX funding that States share with Tribes, we
conducted a mail survey of State child welfare agencies in those 24 States with the
largest Native American populations (see appendix B for a summary of the survey
results).!® Second, we reviewed ACF data on the amount of Title IV-B Subpart 1
child welfare funding that ACF awards to Tribes and States. Third, we reviewed
relevant Federal legislation, regulations, and policy.

Finally, we spoke with child welfare experts and administrators in ACF and BIA, and
in State and Tribal child welfare agencies, and. American Indian- child. welfare_advocacy.
organizations. We held telephone discussions with ACF Indian child welfare staff in 9
regions; a discussion group with child welfare administrators representing 10 States;
and 2 discussion groups with Indian child welfare administrators and Indian child
welfare experts representing 17 Tribal child welfare agencies from 8 States and 2
organizations that provide education about Indian child welfare services and

protections.’°

We conducted our review in accordance with the Quality Standards for Inspections
issued by the President’s Council on Integrity and Efficiency.


Allocation programs, such as those for tribal government, general
administration, resources management, public safety and justice, and education.

According to BIA data, the FY 1993 ICWA allocation was originally set at
about $18.09 million. About $8.4 million in ICWA funds were re-programmed,
however, to cover a shortfall in BIA education funding.

Through FY 1991, BIA distributed its ICWA funds according to a competitive
process. In January 1994, BIA issued revised ICWA regulations, however, and
the agency will now make funds available to all Tribes according to a grant
formula.

Below are listed, for fiscal years 1989 through 1994, approximate ICWA
funding amounts and the number of Tribes funded.

1989: $7.2 million 98 tribes

1990: $7.1 million 124 tribes
1991: $7.0 million 113 tribes
1992: $14.2 million 374 tribes
1993: $9.7 million 375 tribes
1994: $22.9 million 534 tribes

In 1994, ICWA grant awards to individual Tribes ranged in value from $29,446
to $750,000.

Below are listed, for fiscal years 1991 1992, and 1993, BIA estimates of the
child welfare assistance payments made and the average monthly caseload of
Tribal children for whom services were provided with these funds.

1991: $17.5 million 2,920 children
1992: $18 million 3,020 children
1993: $20 million 3,020 children

The BIA provides services for Tribes when these services are not provided by
another entity. Through contracts and grants established under P.L. 93-638,
Tribes can, instead, provide for themselves the services that BIA would have
provided for them.

When a social services contract is established, BIA transfers to the Tribe the
monies it would have spent in the operation of the social services program,
additional monies for indirect costs such as rent and telephone use, and the
welfare assistance payments that the BIA would have distributed for the care of
Tribal members.

The BIA also awards monies through discretionary, competitive, one-time


11.

12.

13.
14.

15.

16.

17.

home or cannot be placed for adoption." [P.L. 96-272, sec. 425, 94 Stat. 519,
(1980)}

Some States voluntarily provide their own funding for Tribal child welfare
services.

Other States provide some child welfare services for Tribal children because
they have a legal responsibility to do so. In 1953, Public Law 280 allowed
States to assume extensive criminal and civil jurisdiction over Indian lands.
Tied to this jurisdiction is the responsibility to provide a variety of services for
Indians on these lands.

Fifteen States have assumed some P.L. 280 jurisdiction over some Indian lands:
Alaska, Arizona, California, Florida, Iowa, Idaho, Minnesota, Montana,
Nebraska, Nevada, North Dakota, Oregon, Utah, Washington, and Wisconsin.
As part of their legal responsibilities tied to P.L. 280, some of these States
provide services, including child welfare services, for some Indians.

Title IV-E foster care funding is available only for children whose families are
eligible for Aid for Families with Dependent Children (AFDC); adoption
assistance funding is provided for special needs children who are eligible for
AFDC or supplemental security income (SSI).

In both 1991 and 1992, about $274 million was allocated for Subpart 1.

The law authorizes 5 years of funding for Title IV-B Subpart 2, and it mandates
a set-aside of 1 percent of the annual appropriation for Tribes. The total
authorized funding levels for each fiscal year are listed below.

1994: $60 million

1995: $150 million

1996: $225 million

1997: $240 million

1998: the greater of $255 million or $240 million increased by an inflation.
factor.

Among the required protections are those to prevent the need for removing a
child from his or her home, the development of a case plan and review system
for each child, and the determination of goals for each child in foster care.

Our report does not address the role of off-reservation Indian organizations in
providing child welfare services and protections to Tribal children.

Our report does not address ACF efforts to ensure the State provision of those
protections specified in P.L. 96-272 to Native American children. For
information about ACF oversight of the State provision of the P.L. 96-272
protections, see the draft report Oversight of State Child Welfare Programs

D-4


The Matching Share Requirement for Title IV-E Funding: Officials from States that
have Title IV-E agreements with Tribes told us that their States assume responsibility
for the Tribal portion of the Title IV-E matching share. Other States, however, may
be less willing or able to do so, and most of the State and Tribal child welfare
administrators with whom we spoke agreed that many Tribes would have difficulty
fulfilling the matching share requirement. —

Tribal Land that Extends into Multiple States: In cases in which Tribal land extends
across State borders, Tribes must negotiate Title IV-E funding agreements and Title
XX funding arrangements with each of the States involved. For example, the
reservation of the Navajo Nation, one of the largest Tribes in this country, extends
into Arizona, New Mexico, and Utah. To obtain all of the Title. IV-E and Title XX,
funds for which it might qualify, this Tribe would have to conclude six separate
negotiations with the three States. To date, the Navajo have received no Title IV-E
funding at all; they have received Title XX funds from Arizona and New Mexico. At
least eight federally recognized Tribes have land that extends into multiple States.3

Most Tribes have received little or no Title IV-B funding.

In fiscal year 1993, 471 of the 542 federally recognized Tribes received no Title IV-B
child welfare funds from ACF. Of the 59 that did receive base child welfare funding,
only 21 were eligible to receive incentive funds. In all, the 59 Tribes received about
$762,000--.3 percent--of the nearly $295 million Title IV-B child welfare funds
awarded. This is a slight increase in funding from 1989, when 29 Tribes received
about $461,000--.2 percent--of the nearly $246.7 million in Title [V-B funds.* A few
important factors limit the Tribes’ access to Title IV-B funds. These are discussed
below.

. The eligibility criteria for Title IV-B child welfare funds effectively exclude
many Tribes.

P.L. 96-272 indicates that Tribal eligibility for Title [V-B base child welfare funding is
contingent upon ACF approval of the child welfare services plan for the State in which
the Tribe is located.> The ACF program instructions further specify that Tribal ©
eligibility for Section 427 incentive funding is dependent upon State compliance with
the requirements of the Section 427 review.*° According to. ACF records, however,

at least four States--Alaska, California, Connecticut, and Massachusetts--have been out
of compliance in recent years.”” The 344 federally recognized Tribes located in these
States were ineligible for Section 427 incentive funds in the years that the States were
out of compliance.”

The ACF regulations also require that, to be eligible for this funding, a Tribe must
have a P.L. 93-638 self-determination contract or grant with BIA to provide its own
child welfare services. Tribes that have neither, but that do, nonetheless, provide