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Tribal-State Relations ISSUE BRIEF August 2012 Tribal-State Relations What’s Inside: • Key factors affecting The United States Congress and Tribal governments Tribal-State relations in have articulated the importance of protecting the safety, child welfare permanency, and well-being of American Indian and Alaska • Components of Native children. Through the Indian Child Welfare Act (ICWA) successful Tribal-State of 1978, Congress stated that there is “no resource that is relations more vital to the continued existence and integrity of Indian tribes than their children” (25 U.S.C. Sec. 1901). • Promising practices in Tribal-State relations This brief is intended to help States, Tribes, and related from across the country jurisdictions find ways to work together more effectively to • Conclusion meet the goals of ICWA. • Resources Child Welfare Information Gateway Children’s Bureau/ACYF 1250 Maryland Avenue, SW Eighth Floor Washington, DC 20024 800.394.3366 Email: [email protected] Use your smartphone to http://www.childwelfare.gov access this issue brief online. Tribal-State Relations http://www.childwelfare.gov • State jurisdiction over Tribal affairs, for Key Factors Affecting Tribal- instance, through Public Law 280 (P.L. 280), initially enacted in 1953 in six “mandatory” State Relations in Child Welfare States and other “optional” States in 1968 that elected to assume full or partial State jurisdiction on Indian reservations, and Tribal child welfare has had a particularly eliminating Federal jurisdiction for Indian poignant history in the past century. Country (Gardner & Melton, n.d.) Thousands of Indian children were forcibly removed from their homes, families, and • Tribal-State disagreements, especially those Tribes and placed in boarding schools where that end up in court and result in a “winner” a policy of assimilation left them unable to and a “loser” speak their Native language or participate • Availability of funding for child welfare in their Native culture. Native customs and activities, which historically required Tribes practices were destroyed, families were to access much of their child welfare broken up, and generations of Indian children funding through the States, although Tribes grew to adulthood without the benefit of could access funding from title IV-B and parenting or the support of their families or Bureau of Indian Affairs Indian child welfare Tribes. This has contributed to a great level grants of distrust and historical trauma that continue to affect American Indian and Alaska Native • Tribal-State differences in child welfare families. values and practices, especially differences related to the importance of family, Today, almost all Tribes operate some form of community, culture, and permanency child protection services, and many have their own Tribal codes, court systems, and child • Disproportionality of Indian children in the welfare programs. A number of factors affect child welfare system, such that American relationships between Tribes and States in Indian and Native Alaskan children are in the provision of child welfare services. These foster care at a rate that is double that of include, but are not limited to: nonminority children (U.S. Department of Health and Human Services, 2011) • The Federal trust responsibility between Tribes and the Federal Government, Since the passage of ICWA, Tribes could which refers to the Federal Government’s run their own child welfare systems but were obligation to protect Tribal self-governance, unable, until recently, to directly receive assets, resources, lands, and treaty rights title IV-E funds except through their States. (25 U.S.C. §§ 450; 450a) The passage of the Fostering Connections to Success and Achieving Adoptions Act of • The influence of various Federal policies, 2008 allowed Tribes to apply for child welfare including policies that allowed Indian lands funding directly from the Federal Government to be taken from Tribes and Indian children through title IV-E of the Social Security Act. to be removed for assimilation It is impossible to talk about Tribal-State relations without referencing the long and This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare 2 Information Gateway. Available online at http://www.childwelfare.gov/pubs/issue_briefs/tribal_state/index.cfm Tribal-State Relations http://www.childwelfare.gov difficult history. The timeline at the end of this • In November 2009, President Barack brief provides a glimpse at that history and Obama released a memo in tandem with important events and milestones. a reiteration of Executive Order 13175, ordering Federal agencies to engage in More recent legislation has attempted to government-to-government consultation address some of the inequities of the past: with Tribes. The memo states: • In 1978, Congress passed ICWA (Public Law The United States has a unique legal 95-608), establishing Federal standards for and political relationship with Indian the removal, placement, and termination tribal governments, established through of parental rights of American Indian and confirmed by the Constitution of and Alaska Native children. ICWA also the United States, treaties, statutes, clarified the jurisdiction of State and Tribal executive orders, and judicial decisions. governments in child welfare, authorized In recognition of that special relationship, Tribal-State agreements, and provided pursuant to Executive Order 13175 funding for the development of Tribal of November 6, 2000, executive programs. departments and agencies are charged • In 1991, the Indian Child Protection and with engaging in regular and meaningful Family Violence Prevention Act (Public Law consultation and collaboration with tribal 101-630) established Federal requirements officials in the development of Federal for the reporting of and investigation of policies that have tribal implications, and child abuse and neglect on Tribal lands, are responsible for strengthening the required background checks on individuals government-to-government relationship who have contact with American Indian and between the United States and Indian Alaska Native children (including foster and tribes. adoptive families), and authorized funding • In 2010, a new Tribal Consultation Policy for Tribal child abuse prevention and for the Health and Human Services Agency treatment programs. was developed with input from Tribes • In October 2008, the Fostering Connections and a newly created Tribal consultation to Success and Increasing Adoptions Act group. The policy, implemented in (Public Law 110-351) was passed, giving 2011, is available on the Office of Tribes, among other things, the option to Intergovernmental External Affairs website: directly access title IV-E funds to operate http://www.hhs.gov/intergovernmental/ foster care, adoption assistance, and, if tribal/tcp.html elected, kinship guardianship assistance • In 2010, the Tribal Law and Order Act programs. The act also requires each State (TLOA) was designed to address three title IV-E agency to negotiate in good faith overall Tribal justice issues: (1) lack of with any Tribe that request to develop an Federal Government accountability for agreement with a State to administer all or investigating and prosecuting crimes part of the title IV-E program. in Indian Country, (2) lack of Tribal Government authority, and (3) longstanding This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare 3 Information Gateway. Available online at http://www.childwelfare.gov/pubs/issue_briefs/tribal_state/index.cfm Tribal-State Relations http://www.childwelfare.gov lack of adequate and consistent funding for Tribal justice systems. For more information, DEFINITIONS visit the TLOA website: http://tloa.ncai.org A more comprehensive review of ICWA Indian Country refers to: “(a) All land in addition to resources for working with within the limits of any Indian reservation American Indian children and families can under the jurisdiction of the United be found on Child Welfare Information States Government, notwithstanding the Gateway’s website: http://www.childwelfare. issuance of any patent, and, including gov/systemwide/cultural/adoption/american_ rights-of-way running through the indian_families.cfm reservation, (b) All dependent Indian Understanding the difficult history between communities within the borders of the States and Tribes, and the historical trauma United States whether within the original it caused, is key for developing strong or subsequently acquired territory thereof, government-to-government relationships. and whether within or without the limits The Indian Country Child Trauma Center’s of a State, and (c) All Indian allotments, (ICCTC) resource guide, Trauma in Indian the Indian titles to which have not been Country, defines trauma and factors that extinguished, including rights-of-way increase vulnerability for American Indian and running through the same” (18 U.S.C. Native Alaska populations and provides tips Section 1151). for professionals working with Native children Historical trauma is collective emotional and families. The resource guide is available and psychological damage that spans on ICCTC’s website: http://www.icctc.org/ generations. This damage stems from Trauma%20in%20Indian%20Country-revised. drastic loss and society’s denial of that pdf loss. Historical trauma for American The California American Indian Enhancement Indians and Alaska Natives can be (AIE) Project’s Implementation
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