- Home
- » Tribal-State Relations
- » What Are the Key Factors Affecting Tribal-State Relations?
Tribal-State Relations
Series: Issue Briefs |
Author(s):
Child Welfare Information Gateway
|
Year Published: 2005 |
What Are the Key Factors Affecting Tribal-State Relations?
Almost all Tribes operate some form of child protection services, and many have their own Tribal codes, court systems, and child welfare programs (Cross, Earle, & Simmons, 2000). A number of factors affect relationships between Tribes and States in the provision of child welfare services. These include, but are not limited to, the Federal trust responsibility between Tribes and the Federal Government, influence of various Federal policies, issues of State jurisdiction over Tribal affairs, Tribal-State disagreements, availability of funding for child welfare activities, and Tribal-State differences in child welfare values and practices. How each of these factors is understood and addressed by all involved parties can significantly enhance (or detract from) the ability of Tribes and States to have productive and meaningful relationships that support child welfare services to Tribal children.
The Federal Trust Responsibility Between Tribes and the Federal Government
AI/AN Tribes are recognized as governmental entities in the U.S. Constitution, which states, "The Congress shall have Power To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes" (Article I, Section 8). In addition to Constitutional recognition, Tribal governments are acknowledged through Federal laws, court cases, and more than 400 treaties as distinct governments with sovereign nation status1 (Canby, 1998; Cohen, 1982, as cited in Hicks, 2004). These treaties and laws created a unique and fundamental relationship between Tribes and the Federal Government. In return for ceding millions of acres of land to the U.S. Government, Tribes received the guarantee of protection and of the right to self-governance (National Congress of American Indians, 2003).
As a result of this Constitutional relationship, the Federal Government has both significant authority over and key responsibilities to Tribes. In particular, the Federal trust responsibility refers to the Federal Government's obligation to protect Tribal self-governance, assets, resources, lands, and treaty rights (Canby, 1998; Deloria, 1985; National Congress of American Indians, 2003; O'Brien, 1989, as cited in Hicks, 2004). This includes the provision of resources and services to protect the well-being of AI/AN people. This direct relationship between Tribes and the Federal Government does not negate Tribal people's relationship to the States where they reside. Tribal people are citizens of all three entities: their Tribal nations, their States, and the United States.
Federal Policies Impacting Tribal-State Relations
In addition to the relationship between Tribes and the Federal Government established in the U.S. Constitution, Tribal-State relations have been affected by a number of specific Federal policies and programs. These include historical policies promoting assimilation (such as the General Allotment Act of 1887, Termination Era and Relocation policies, and the Indian Adoption Project) as well as more recent policies and child welfare laws that support Tribes' right to self-determination (such as the Indian Self-Determination and Education Assistance Act, the Indian Child Welfare Act, and the Indian Child Protection and Family Violence Prevention Act).
The history of Federal initiatives and policies has shaped the ability of Tribes to respond to child welfare issues, the parameters of State jurisdiction over Tribal affairs and their relationship with Tribal governments, and ultimately the overall well-being of Indian children and families. These policies and their consequences underlie the political environment that exists today among Tribes, States, and the Federal Government, and they define the policy boundaries that influence the ability of Tribes and States to provide effective child welfare services to AI/AN children.
Early Federal policies supporting assimilation of AI/AN people have had lasting negative consequences both for Tribal-State relations in child welfare and for AI/AN families. One such policy, the General Allotment Act of 1887 (25 U.S.C. §§ 331-334, 339, 341, 342, 348, 349, 354, 381), divided most Tribal lands and distributed some of the land to non-Indian settlers. Reservations thus became a "checkerboard" of Indian and non-Indian land that contributed to extremely confusing jurisdictional issues for States and Tribes (Hicks, 2004). This jurisdictional complexity still impacts Tribal-State relations in child welfare in many areas.
In the mid-20th century, the Federal Government pursued policies that sought to terminate Federal recognition of many Tribal governments, leaving them with no land base, government funding, or services (American Indian Resources Institute, 1993). Soon after, the Federal Government initiated a relocation policy that encouraged all Tribal families and individuals to relocate from their Tribal communities to urban areas (Snipp, 1996). At about the same time, the Indian Adoption Project, a collaborative effort between the Federal Government and private agencies, resulted in the removal of hundreds of AI/AN children from all over the United States from their families and Tribes for the purpose of adoption within non-Indian homes (George, 1997).
It was believed that these policies would help Indian people become eligible for State-administered services. While these policies promoted the assimilation of AI/AN people, they did so by diminishing Tribal communities and Tribal governmental capacity, encouraging Tribal families to leave their Tribal communities and extended families, and removing children from their families and culture. Today, the vestiges of these policies are still visible, as generations of AI/AN people struggle to reestablish or maintain Tribal relationships that once served as natural support systems for families. Current State governments are better able to establish effective partnerships with Tribes when they understand how these policies may have contributed to the increased incidence of child abuse and neglect in Tribal communities and when they appreciate the challenges that Tribal governments face in trying to address the impact of these policies.
In the 1970s, a new era began in Federal policy as the Tribal right to self-determination was formally recognized and supported through the Indian Self-Determination and Education Assistance Act (Public Law 93-638). This law provided Tribes with the opportunity to contract directly with the Secretary of the Interior and the Secretary of Health and Human Services to administer programs formerly operated by the Federal Government (e.g., the Bureau of Indian Affairs and the Indian Health Service) (O'Brien, 1989). This included child welfare services and related support services for AI/AN families operated by the Bureau of Indian Affairs and Indian Health Services.
Soon after, Congress recognized the high rate of removals of AI/AN children by public and private agencies and passed ICWA (Public Law 95-608), which established Federal standards for the removal, placement, and termination of parental rights of AI/AN children. ICWA also clarified the jurisdiction of State and Tribal governments in child welfare and authorized Tribal-State agreements and funding for the development of Tribal programs. In 1991, the Indian Child Protection and Family Violence Prevention Act (Public Law 101-630) was enacted, which established Federal requirements for the reporting and investigation of child abuse and neglect on Tribal lands, required background checks on individuals who have contact with AI/AN children (including foster and adoptive families), and authorized funding for Tribal child abuse prevention and treatment programs.
In 2004, Executive Order No. 13336, "American Indian and Alaska Native Education," reiterated adherence to a government-to-government relationship and support for Tribal sovereignty and self-determination as was expressed in Federal Executive Order No. 13175, "Consultation and Coordination with Indian Tribal Governments." The current administration directs the head of each executive department and agency to continue to ensure, to the greatest extent practicable and as permitted by U.S. law, that the agency's working relationship with federally recognized Tribal governments fully respects the right of self-government and self-determination due to Tribal governments. In 2005, the U.S. Department of Health and Human Services issued a new Tribal consultation policy. The policy lays out the expectation for consultation and the method of consultation that should take place. A copy of this policy can be found at www.hhs.gov/ofta.docs/FnlCnsltPlcywl.pdf.
These laws and polices have been a catalyst for Tribes to reassert their jurisdiction and authority in child welfare matters involving their children, both on and off Tribal lands. They have required both Federal and State agencies to work more closely with Tribal governments and enabled some Tribal governments to access services and funding they previously could not, such as Title IV-E Foster Care and Adoption Assistance and Title XX Social Services Block Grant. Most importantly, these laws acknowledge Tribal governments as valuable resources in child welfare decision-making and have encouraged States to embrace this belief. Despite these changes, many challenges remain. Funding for the Title IV-B programs (Promoting Safe and Stable Families and Child Welfare Services) to Tribal governments has increased in recent years, but the overall amounts still fall short of what is needed. The Adoption and Safe Families Act has sought to speed permanency for all children, but the new mandates also create additional challenges. Finally, many questions about the interface of the Adoption and Safe Families Act and the Indian Child Welfare Act remain unresolved, which has created problems for States and Tribes trying to implement these laws.
Limitations to State Jurisdiction
Another factor that can impact Tribal-State relationships in child welfare is jurisdictional conflict between States and Tribes around the provision of child welfare services to Tribal children. Historically, the direct relationship between the Federal Government and Tribal governments has limited Tribal-State interaction. In fact, the Supreme Court ruled in 1832 that States had no authority to pass any laws that may interfere with the government-to-government relationship between the United States and the Tribes (O'Brien, 1989, p. 276).
A key shift in the Federal-Tribal relationship came in 1953 when Congress enacted Public Law 280 (P.L. 280). P.L. 280 granted six States (California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska) concurrent criminal jurisdiction over Tribal lands within their borders and recognized some limited State jurisdiction in civil matters, the scope of which is still being debated today. Later, the United States Supreme Court said that while P.L. 280 provides a State legal forum for Indian people and Tribes that choose to use it, P.L. 280 does not allow States the authority to regulate the civil affairs of AI/AN people living on Tribal lands. Lower courts have differed on the issue of whether child welfare matters are civil or criminal, but in practice many P.L. 280 States are exercising some form of concurrent jurisdiction over child welfare matters involving AI/AN children on Tribal lands. Meanwhile, some Tribes in P.L. 280 States are choosing to exercise exclusive jurisdiction on Tribal lands in child welfare matters, especially when Tribal resources and infrastructure are sufficient to do so.
Jurisdiction and Service Responsibility
Jurisdiction and service responsibility are distinct legal concepts. Jurisdiction refers to which government has the authority to adjudicate a case in court, while service responsibility defines which government is responsible for providing services to the child and family. AI/AN people are citizens of their Tribe, the United States, and the State in which they reside. This entitles them to services provided by the State, even if the Tribe exercises jurisdiction in a particular case. How jurisdiction and service responsibility are understood and applied, however, can vary greatly from State to State.
In some areas, State agencies routinely participate in Tribal court child custody proceedings as the entity with primary service responsibility, while the Tribe exercises jurisdictional authority over the particular case. In other areas, Tribes may have both jurisdiction and service responsibility; or the Tribe may not have jurisdiction but retain some level of service responsibility. Understanding Tribal and State jurisdiction can be especially challenging when considering the provision of services to Tribal members residing in P.L. 280 States.
Providing an integrated response to child abuse and neglect involving AI/AN children requires that jurisdictional authority and service responsibility are clear. It is important for all parties to listen to and understand the perspectives of all involved and consult applicable Federal laws (e.g., P.L. 280 and ICWA) for guidance. When conflicts or misunderstandings arise regarding these issues, the ability to secure a timely permanent placement and/or appropriate services for Tribal children can be impeded. In some instances, States or counties have withheld services to Tribal children living on Tribal lands, citing a lack of jurisdiction or service responsibility. In other situations, States or counties have come onto Tribal lands asserting jurisdiction in child welfare cases that is not consistent with Federal law. For both entities, budgetary concerns are significant and sometimes create disagreement over who should pay for services (National Indian Child Welfare Association, 2003).
While State jurisdiction over Tribal affairs has often been problematic in child welfare, efforts to improve these relationships have proven beneficial. Many Tribes and States have developed procedural agreements that define the jurisdiction, roles, and responsibility for services when AI/AN children come into contact with the State child welfare system. These intergovernmental agreements lay a foundation for improved Tribal-State relations in child welfare.
Tribal-State Disagreements
Tribal-State disagreements and conflicts, even those unrelated to child welfare, can pose another significant barrier to developing collaborative relationships for the benefit of AI/AN children. If the conflict involves a legal question, whether it concerns a single case or more widespread issues, litigation may even be pursued. Legal action always concludes with someone "winning" the case, which often results in resentment from the other party. This resentment can make both Tribal and State governments apprehensive about engaging in future Tribal-State collaborations. Even relatively small disagreements can stall the development of collaborative efforts as States and Tribes spend time negotiating solutions and acceptable methods for implementing any solution. In the development of intergovernmental agreements, it is not uncommon for long delays to occur when Tribes and States cannot agree on interpretations of Federal law or authority, as may be the case when policies are unclear or do not address specific Indian child welfare issues.
Developing forums and processes to address these issues before they escalate or significantly delay services is the preferred approach to long-term conflict and litigation. In many areas, Tribes and States spend a good portion of their time together with the intention of developing a foundation for positive conflict resolution based upon understanding, integrity, patience, and openness in their relationships. This may include provisions in Tribal-State agreements that define how grievances will be handled.
Availability of Funding
Access to funding is a significant barrier to improving Tribal-State relations and improving outcomes for AI/AN children. Understanding the differences in funding access and need between Tribes and States is critical to developing positive Tribal-State relationships for child welfare.
Although Tribes are governmental entities, their funding and resources often differ from those of States and counties. Historically, Tribes have not had the financial resources needed to adequately support even basic child welfare programs and services (Reed & Zelio, 1995). Tribal communities, many of which have staggering unemployment and poverty rates and little access to capital for economic development, are dependent upon Federal funding that comes from treaty rights and the Federal trust responsibility to support basic services for their people. The primary sources for general revenue that supports public services for States, such as taxes on personal and business income and user fees, are not feasible in the vast majority of Tribal communities.
It is often assumed that, because some Tribes have gaming operations or receive Federal funding, Tribes have similar access as States to funding for child welfare purposes. Closer examination shows that Tribes have access to fewer Federal sources of child welfare funding and generally smaller amounts per capita than States do. For example:
- Title IV-E Foster Care and Adoption Assistance Program. This program provides reimbursement for foster care and adoption services (including administrative costs, maintenance payments, and training for foster/adoptive parents and staff) provided to children placed by States and public agencies with whom States have agreements. Congress originally intended for the Title IV-E program to serve all eligible children in the United States, including those under Tribal jurisdiction; however, language referencing Tribal governments was left out of the law. Therefore, Indian children under Tribal jurisdiction do not have the same access to this entitlement program as children under State custody. Currently, in order to gain access to Title IV-E funds, Tribes must enter into intergovernmental agreements with their respective States. These agreements are occasionally difficult to negotiate and can be limited in scope, sometimes allowing reimbursement for only portions of the program (Brown, Whitaker, Clifford, Limb, & Munoz, 2000).
- Title IV-B, Subpart 1 (Child Welfare Services). This program provides States and Tribal governments with Federal support for preplacement preventive services to strengthen families and avoid placement of children, services to prevent abuse and neglect, and services related to the provision of foster care and adoption (45 C.F.R., Part 1357, 2000, as cited in Brown, Limb, Munoz, & Clifford, 2001). Tribal governments are eligible to submit plans for funding under this program. However, out of the 558 Tribal governments that could submit plans, 477 of them would be eligible for grants of $10,000 or less, and at least half of these Tribes would receive amounts under $5,000.2
- Title IV-B, Subpart 2 (Promoting Safe and Stable Families). The Title IV-B program promotes services that prevent the removal of children from their homes, help reunify children with their families when possible after removal, and support adoption when return to the home is not possible. Federal statute provides that only Tribes that are eligible for a grant of at least $10,000 according to a population-based funding formula are eligible to participate in this program. Only a small portion of the federally recognized Tribes (approximately 91 Tribes) met these criteria as of FY 2005. Therefore, the Title IV-B, subpart 2 program has had little impact on the overall need for these types of services in Tribal communities across the United States (Clifford-Stoltenberg & Simmons, 2004).
- Indian Child Welfare Act, Title II Funds. The Indian Child Welfare Act includes a small grant program, as well as provisions that encourage Tribal-State agreements to share Federal resources that Tribal governments cannot access. Congress appropriated $3.8 million for this program in FY 1978, its first year.3 In FY 2005, the appropriation was $10.3 million.
In terms of Tribal-State relations, the ability to effectively respond to child abuse and neglect of AI/AN children is highly dependent upon the availability of both State and Tribal resources. Tribes that do not have the programs necessary to meet all the needs of their Tribal population often must rely on State services to address those needs. This poses a problem for many Tribes, as they can be located far from State service locations without any viable means of transportation for Tribal members, or they may feel that State services are not responsive to their unique community needs. Likewise, when States need help in providing services or identifying placements to meet the requirements of the Indian Child Welfare Act, the outcomes often are dependent upon the Tribe's ability to assist in these tasks. A lack of access to funding for Tribes also inhibits their ability to actively participate in State child custody proceedings and can impact how States view their relationship with Tribes.
In November 2004, the U.S. Department of Health and Human Services' Administration for Children and Families (ACF) released a series of reports on the Promoting Safe and Stable Families program (ACF, 2004). The reports reveal that greater flexibility in State funding had strengthened the abilities of Tribal families to care for their children.
Negotiation of Differences in Child Welfare Values and Practices
A final potential barrier to positive Tribal-State relations involves the differences that often arise between State and Tribal child welfare values and practices. Within Tribal communities, child welfare decisions often are made based on the concept of community permanency. When a child is born into a Tribe, he or she becomes not just part of the family, but also a part of the entire community. The meaning of family in Tribal settings encompasses individuals outside of the child's biological parents and siblings and is often referred to as the child's extended family. An AI/AN child's extended family becomes a reference point for his or her identity and sense of belonging. From the Tribal perspective, these concepts of identity and belonging are central to the idea of permanency and are considered paramount in decisions regarding the placement of Indian children. When family reunification is not an option, therefore, the Tribal perspective places emphasis on permanency alternatives that help the child stay connected to his or her extended family, clan, and Tribe (Cross, 2002).
While Tribal communities consider placements within the context of the community, mainstream models often consider placements within the context of the individual parent and the individual child. For example, within mainstream society, greater emphasis is often placed on certain types of permanency, such as adoption with full termination of parental rights. In this instance, the connection of the child to his or her birth family is severed. Many Tribal communities, on the other hand, do not agree with terminating a parent's rights and may instead utilize customary adoption practices. In a customary adoption, the child is taken in by a family or community member but still has the opportunity to have a relationship with his or her biological parents and extended family (Clifford-Stoltenberg & Simmons, 2004).
These differences in how family, community, and permanency may be viewed can shape how Tribes and States work together on child welfare cases and form the foundation for what is defined as "success" in achieving permanency for Tribal children. When States pursue policies or practices that are inconsistent or inflexible with regard to Tribal values, Tribal-State relationships are almost certain to suffer. States that embrace Tribal values, on the other hand, demonstrate a respect for Native culture and tradition. This respect can lead to more open, effective Tribal-State relations. One common mechanism for expressing this acceptance of Tribal values and practice is a Tribal-State agreement that allows the Tribe maximum flexibility permitted under the law to make decisions that reflect its culture, rather than imposing a State approach.
Overcoming all of the potential barriers discussed in this section can be challenging for both Tribes and States, but many States and Tribes have developed relationships and strategies to address the needs of AI/AN children and families. New collaborations are increasing, and paradigm shifts are occurring in the thinking of State and Tribal officials that are transforming relationships in child welfare.
1 Tribes are inherently sovereign, meaning that they do not trace their existence to the United States and that they possess governmental power over all internal affairs (Reed & Zelio, 1995). back
2 The amount for Indian Tribes is based on the following formula: each State receives a base amount of $70,000, additional funds are distributed in proportion to the State's population of children under age 21 multiplied by the complement of the State's average per capita income. The amount for Tribes is an amount per the number of children in the State in which the Tribe is located times the number of children in the Tribe, times three (as provided on the U.S. Department of Health and Human Services website at http://aspe.hhs.gov/SelfGovernance/inventory/ACF/645.htm). back
3 Department of the Interior and Related Agencies Appropriations for 1979: Hearings before a Subcommittee of the Committee on Appropriations, House of Representatives, 95th Congress, II. (Bureau of Indian Affairs, p. BIA 29). back
This material may be freely reproduced and distributed. However, when doing so, please credit Child Welfare Information Gateway.