7. Funding of Icwa Programs

• Library: The Indian Child Welfare Act Handbook: A Legal Guide to Custody and Adoption (ABA) (2018 Ed.)

Funding for tribes and tribal organizations to operate Indian Child Welfare Act (ICWA) programs has been of utmost concern to those entities since the enactment of the ICWA. Indian tribes and organizations need funding to provide the variety of services needed to establish and maintain an effective child welfare assistance program. Title II of the ICWA recognizes a broad scope of activities that may be conducted by Indian tribes and organizations.¹ Some of these services include the licensing of foster homes, the delivery of services to families to avoid displacement of children, the provision of legal services and advice for both the tribe and entities involved in ICWA proceedings, and the education and training of tribal court personnel to implement the ICWA.² This is a very ambitious agenda for any tribe delving into the ICWA arena.

Unfortunately, the funding for tribal ICWA programs has historically not been as ambitious.³ There are a few main sources of federal funding that a tribe or tribal organization may access to operate ICWA programs, exclusive of any money the tribe may provide from its own revenue sources. First, under Title II of the ICWA the Secretary of Interior is authorized to make grants to Indian tribes and organizations, including off-reservation programs, for the establishment and operation of child welfare programs and implementation of child welfare codes.⁴ The grants for on-reservation programs are directed at the delivery of services to reservation families or near-reservation families, while the off-reservation grants are geared toward allowing the payment of foster care subsidies in a manner comparable to the states, as well as ancillary services to those families.⁵ Since 1996, no funding has been allocated for the off-reservation programs.⁶

Since 1994, ICWA funds have been awarded to tribes on a formula grant basis.⁷ Of note, the definition of Indian in § 1934 is broader than that in the substantive portion of the ICWA, which allows tribes at their discretion to service some individuals who may not be covered by the ICWA definition of Indian.⁸ At some point, these inconsistent definitions raised a concern that terminated tribes might be eligible for funding under ICWA, but this does not seem to have materialized.⁹

A second source of funding for tribes is Title IV-B of the Social Security Act.¹⁰ Title IV-B, Part I funds general child welfare services, including activities to promote the safety and well-being of children and prevent child abuse and neglect.¹¹ An "Indian tribal organization" may receive Title IV-B, Part 1 funds directly from the federal government if it "has a plan for child welfare services approved under this subpart."¹² This section has been implemented by a tribal-specific regulation, which specifies how tribes need to comply with the requirements of Title IV-B, Part 1.¹³

Title IV-B, Part 2 provides funding for child welfare services designed to prevent the breakup of or to reunify the family, as well as funding to support adoptive families.¹⁴ There is a 3 percent allocation for tribes that is awarded on a formula basis.¹⁵ Part II also includes a court improvement program that tribes access on a competitive grant basis, with funds set aside specifically for tribal courts.¹⁶

Title IV-B is a matching funds program, meaning that the entity that receives funding must provide a fiscal match to the amount provided by the federal government.¹⁷ Title II of ICWA specifically authorizes ICWA grants to be used as the match for a grant under Title IV-B as can relevant funds from P.L. 95-638 Contracts. See page 228, supra.¹⁸ Title II also prohibits the Secretary of Health and Human Services (HHS) from denying funding under Title IV-B because a tribe has received funding under Title II of the ICWA.¹⁹

Since 2008, tribes, tribal organizations, and tribal consortia at their option can apply directly to the HHS to administer the Title IV-E foster care and adoption assistance program and receive direct funding from HHS.²⁰ Title IV-E provides for foster care and adoptive assistance payments and related administrative and training expenses.²¹ Unlike the other funding sources, Title IV-E is an entitlement program, which means that it is not subject to appropriations.²² Rather, tribes and state are entitled to receive a partial reimbursement of all money that they spend for eligible purposes.²³ Thus, it is a more stable source of funding than other available federal resources. Tribes already possess the authority to license foster homes...