NCAI PRIORITY ISSUE MEMORANDUM
WELFARE REFORM IN INDIAN COUNTRY
JUNE 1997

 On August 22, 1996, President Clinton signed into law, the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193), more commonly referred to as welfare reform bill. This historic event was the culmination of nearly two years of legislative maneuvers by the 104th Congress to effectively change the way federal welfare assistance is provided to individuals, children and families living in poverty in the United States. Broad-sweeping changes in federal entitlement such as Aid Families with Dependent Children (AFDC), food stamp eligibility, and a host of other welfare services are now under the responsibility and control of the states. Federal funding for most of these programs is now discretionary in nature, with spending authority block-granted to the states as well.

Many changes to federal welfare assistance have already been implemented, with most others occurring on July 1, 1997, when the new law is scheduled for full implementation by the states. The potential impacts welfare reform may have on this nation's poor are monumental. And in Indian Country, where tribal communities are already suffering the highest levels of poverty and unemployment in the nation, those impacts may conceivably be devastating. With nearly eighty percent of the old federal welfare system now block-granted to the states, few provisions in the law protect, or even address, the unique status and needs of Indian Tribes. The treatment afforded to tribal governments under the new law as compared to that of the states is extremely disproportionate. Without proper congressional amendments, tribes will have difficulty negotiating an appropriate role for themselves and the states.

This memorandum serves to explain some of those impacts as well as identify what actions tribal leaders and the NCAI have taken to ensure that tribal concerns are forwarded to the Congress and the Administration.

SECTION 1 - IMPACTS OF WELFARE REFORM

Many sections of the welfare reform law may impact Indian individuals and families who qualify for some form of federal welfare assistance. However, the greatest change under the new law will occur in the area of family subsistence. For example, Aid to Families with Dependent Children, for 30 years a mainstay of the federal welfare assistance program has been stripped of its entitlement status and converted into a state block grant titled "Temporary Assistance to Needy Families," or TANF. No longer will needy parents with children automatically qualify for welfare assistance. Nor under the new law will a present welfare recipient continue to qualify for state welfare assistance under current federal guidelines. States now have the power to change certain eligibility requirements for citizens domiciled within their boundaries.

Under AFDC, states were required to provide a matching fund of 75% of the federal assistance dollars they received to run state programs. Under the new TANF, tribes may now administer their own welfare assistance programs, through the implementation of a Tribal TANF plan, but states are not required to provide any matching funds to those tribal welfare assistance programs. The lack of such a provision in the law makes it nearly impossible for tribes to assume welfare assistance program responsibilities unless the state voluntarily contributes these funds. Tribes are only guaranteed the federal dollars expended on those tribal populations under the old AFDC program.

TANF recipients are also subject to strict work participation and job training requirements in an effort to force habitual welfare recipients into the work force. Under federal guidelines, an individual's TANF payments will be provided for a period of not more than two consecutive years, with cumulative lifetime payments capped at a five year maximum. However, a tribal provision in the law allows an Indian adult to deduct from their five year cumulative limit any time living on an Indian reservation as an unemployed person so long as that reservation community has an annual unemployment rate of at least fifty (50%) percent.

Other areas of potential impact to tribes include changes in the Child Care Development Block Grants (CCDBG), Child Support Enforcement programs, Child Protection services, program revisions to the Tribal JOBS Programs, Food Stamps and Commodities Distribution, Medicaid changes under TANF, changes in Supplemental Security Income, and the Child Nutrition program. For a more detailed explanation of the Pub. L. 104-193, please refer to the Congressional Conference Report (HR Conf. Rpt. 104-725) which accompanied the enacted bill (HR 3734).

SECTION 2 - Tribal LEADERS RESPONSE TO WELFARE REFORM

Tribal leaders have responded to the enactment of welfare reform with great concern. They have noted the enormous impacts welfare reform will have on their communities as well as changes in the law that must occur in order to reduce those impacts. With the process of implementing the welfare reform law currently in full swing, tribal leaders have mandated that NCAI make a top priority of monitoring national policy developments regarding this implementation process. To date, national tribal welfare reform meetings have been held in Phoenix, AZ, Seattle, WA, and Washington, DC, where federal and state agency officials were invited to join tribal leaders to discuss welfare reform's potential impacts on Indian country, as well as steps that the tribes, the states and the federal government should take to see that tribes are fully included in the implementation process.

NCAI facilitated a day-long seminar on welfare reform on October 20, 1996, at it's 53rd Annual Convention in Phoenix, AZ. Tribal welfare and social service program experts from around the country provided tribal leaders a thorough overview of the impacts, immediate as well as long-term, welfare reform may present. Tribal leaders were also given thorough explanations of the law's major provisions, including:
 

• the transfer of Aid to Families with Dependent Children (AFDC) entitlement programs into Temporary Assistance for Needy Families (TANF) block grants to the states;

• the requirements associated with operating a Tribal TANF plan;
•  new work participation and job training requirements mandated under federal law for individuals and families wishing to continue their welfare assistance eligibility;
• changes in child protection services, child care development, and child support enforcement programs;
• new eligibility requirements for the food stamps as well as potential impacts on commodities distribution programs, and;
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• the unequal treatment of tribal governments compared to state and local governments under the new law.

Immediately following the NCAI convention in Phoenix, the Department of Health and Human Services (DHHS), Administration for Children and Families (ACF) hosted a national Tribal leaders meeting in Seattle, WA, on the implementation of welfare reform in Indian Country. This three-day meeting, held October 29-31, 1996, and co-sponsored by the NCAI and other national Indian organizations, brought together Tribal leaders, Tribal level program experts, and state and federal officials to continue discussions begun in Phoenix.

The Seattle meeting was also utilized by Tribal leaders to develop the National Tribal Leaders Statement on the Implementation of Welfare Reform in Indian Country (hereinafter, the TLS). This statement was a consensus effort by Tribal leaders to address many of the immediate concerns over the new law's implementation in Indian Country. The TLS calls for changes in the law that will create more equality for tribes wishing to participate in direct implementation of welfare assistance programs. Accordingly, NCAI has completed the following activities in accordance with the TLS.
 

• Serves as an information clearinghouse for tribal welfare reform education efforts, including the tracking and monitoring regional workshop activity, and helping to facilitate communications between the Tribes, the Administration, the Congress, and the States at the national and regional levels.

• Established a welfare reform fax database that includes many local, regional and national tribal welfare reform experts that otherwise would not receive information updates. (Note: anyone who wishes to be included in the welfare reform database is urged to contact NCAI with your name, address, telephone number and, most importantly, your fax number).

• Advocating before Congress and the Administration for changes in the law and surrounding regulations that will benefit Indian tribes.

• Facilitated the formation of a workgroup of tribal welfare reform experts at the federal, state, and tribal levels to develop a series of proposed Indian amendments to the welfare reform act, which were completed and submitted to Congress in February 1997. The following is a brief description of the fourteen provisions included in this initial amendments package:

2) Availability of TANF Loans to Indian Tribes - clarifies the current law making Indian tribes with tribal TANF programs eligible for federal welfare program loans. The Secretary's technical corrections package included a similar provision as well as the House passed bill, HR 1048.

3) Tribal Development Fund - establishes a "Tribal Development Fund" that provides equal access for tribes to contingency funds, program bonus awards and technical assistance funding currently available to states.

4) Disregard of the 60 Month Time Limit on Tribal TANF Benefits - allows time spent by an Indian family, living on a reservation, to be disregarded from the 60 month time limit on TANF benefit eligibility, redefines "Indian Reservation" to include Indian communities in states such as Oklahoma, eliminates the "1000 person" population requirement of a reservation in order for families to qualify for the time limit disregard, and calls for the use of the "best available data" in determining population and unemployment levels a reservation must experience to qualify as a time limit disregard community. This provision was included in the Secretary's Technical Corrections Package and House bill HR 1048.

5) Tribal Determination of BIA/GA Program Payment Levels - provides tribes more control and flexibility over the spending levels and spending authority of the BIA's General Assistance (BIA/GA) program to help relieve the impacts of welfare reform on their communities.

6) Cooperative Agreements with States over C.S.E. Functions - allows tribes an option to enter into cooperative agreements with the states to use state procedures and guidelines to supplement the Tribal Court system in operating Tribal Child Support Enforcement programs. This provision was included in the Secretary's Technical Corrections Package and House bill H.R. 1048.

7) Direct Funding for Tribal Child Support Enforcement Programs - allows tribes operating Child Support Enforcement (CSE) programs to receive direct funding from the Secretary. A similar provision was included in the Secretary's Technical Corrections Package and House bill H.R. 1048.

8) Assurance of Equal Consultation with Tribes over State Plans - assures tribes receive equal consultation surrounding the design of welfare services under state plans.

9) State Option to Exclude Tribal Work Program Participants - allows states to exclude individuals served by a Tribal work program from being calculated in a state's work participation rates. A similar provision was included in the Secretary's Technical Corrections Package and House bill H.R. 1048.

10) Reporting Requirements for Tribal TANF Programs - allows the data collection and reporting requirements associated with operating a TANF program to be modified on a case-by-case basis to adapt to a Tribe's capabilities.

11) Tribal Inclusion in Secretary's National TANF Program Studies - mandates the Secretary to conduct research on tribal TANF programs as well as state TANF programs, including information on potential benefits, effects, and costs of operating different TANF programs.

12) Tribal Retrocession - allows a Tribe to retrocede a Tribal TANF grant back to the Secretary, and discontinue operating a Tribal TANF program, if preconditions identified in the Tribal TANF plan (i.e.- infrastructure improvement, technical assistance, job opportunities) do not exist.

13) Equitable Assistance to Indians under State TANF Plans - require states to provide equitable services to Indian individuals not receiving assistance from a Tribal TANF Program.

14) Tribal Appeals - allows Tribal governments operating TANF programs access to an appeals process over adverse actions by the Secretary similar to the process available to the states.

A complete copy of the proposed Indian amendments to the welfare reform act are available online at www.ncai.org., or by contacting NCAI with your request.

SECTION 3 - CONGRESSIONAL & ADMINISTRATIVE ACTION

Soon after the welfare reform bill was signed into law, President Clinton voiced concerns over the broad-sweeping changes the state block-grant system would have on poor communities, including in Indian country. He vowed to seek amendments to the Act in the 105th Congress in an effort to ameliorate such impacts. In response, the NCAI, along with tribal leaders and tribal welfare reform experts met with a number of Administrative officials at the Department of Health and Human Services (DHHS), the Department whose agencies are charged with implementing the majority of the federal welfare reform provisions. Discussions were conducted on how best to alleviate the most immediate threats to Indian communities imposed by the new law. Many of the provisions being considered for inclusion in the proposed Indian amendments package at that time were presented to Secretary Shalala in hopes that she would include them in the DHHS' technical corrections package. On December 16, 1996, Secretary Shalala did submit a such a package to the Congress on behalf of the Administration. In reviewing the Secretary's proposals, some of the concerns highlighted by tribal leaders were included, many were not, including those that would create greater equality under the law towards Indian Tribes participating in the welfare reform implementation process.

To date, consultation with tribes by the Administration on implementing regulations has consisted primarily of: 1) a Data Processing Capacities questionnaire faxed to Tribes on March 11, 1997; and, 2) a five-page, Tribal TANF Questionnaire sent to all federally recognized Indian Tribes on February 11, 1997, and, 3) a guidance document for tribes to use in developing their own TANF plans, also sent to tribes on February 18, 1997. The data processing questionnaire was disseminated in an effort to identify the current level of electronic communications and data processing capacities of tribes. The tribal TANF questionnaire provided tribes an opportunity to propose suggestions to the ACF on a number of issues, including: what types of tribal data sources should be used to determine funding levels for tribal TANF grants; the contents of, and process for, approving tribal TANF plans; the penalty assessment process for TANF plan violations by tribes; tribal work participation requirements and time limits; tribal data reporting requirements; and the level of consultation and negotiation required by the tribes of the ACF. As a final note, the ACF has reported to the NCAI that, so far, five Tribal TANF plans have been submitted to the ACF for approval, with one, the Klamath Tribe of Oregon, having their plan approved on May 15, 1997, allowing the Tribe to implement their TANF plan beginning on July 1, 1997.

Anticipating the introduction of a technical amendments bill early in the 105th Congress, NCAI submitted the proposed Indian amendments to the Congress on February 12, 1997. After concerns over potential budgetary impacts associated with technical corrections to the Welfare Reform Act were voiced by Congress, NCAI asked the Tribal welfare reform experts to identify out of the original 14 amendments, those that had no fiscal budgetary impact in their adoption, resubmitting provisions 8, 10, 11, 12, 13, and 14 to House Ways and Means Committee (Bill Archer, R-TX, Chairman), on March 12, 1997, for further consideration.

Reports from Congressional staff regarding the status of including the proposed Indian amendments was that in both the Human Resources Subcommittee, as well as the full Ways and Means Committee, many of the provisions were never given an appropriate level of consideration.

Rep. E. Clay Shaw, Chairman of the House Subcommittee on Human Resources, introduced H.R. 1048, the Welfare Reform Technical Corrections Act of 1997, and on Tuesday, April 29, 1997, the House of Representatives passed the bill by voice vote and reported it to the Senate for further action. As adopted, H.R. 1048 contains few provision that benefit Tribes, with most provisions agreed to by the House consisting primarily of those provisions in the DHHS' Secretary's Technical Corrections Package to Pub. L. 104-193, forwarded to Congress in December 1996.

Efforts now focus on getting these amendments included in whatever technical corrections proposal to welfare reform the Senate may consider. It should be noted however that the political landscape has grown increasingly complex. Reports from the Senate Finance Committee (Orrin Hatch, R-UT, Chairman), which has jurisdiction over any technical corrections bill to welfare reform in the Senate, indicate that the likelihood of a technical corrections bill being considered prior to the August recess is very slim. Despite strong arguments put forth by Tribal leaders over the severe impacts welfare reform will have on Indian communities, news reports continue to surface on the Senate leadership's strong objections to major welfare reform amendments.

Over the next several months state governments will prioritize the major issues slated for inclusion in the upcoming legislative sessions. Accumulating information on how many states with significant Indian populations are ranking welfare reform as a top priority for the upcoming legislative cycle may prove helpful in turning Congressional attention back to amending the welfare reform law. Tribes that present testimony before their state legislatures are urged to provide NCAI with copies of that testimony as well as copies of other pertinent correspondences between the Tribes and the states. All material of this nature will help provide the Administration and the Congress with more information on the impacts felt by the Tribes and the states over welfare reform's implementation.

The NCAI continues to meet with key Congressional staff in its ongoing efforts to seek inclusion of all the proposed Indian amendments into the current legislation. However, many of the issues identified in the Tribal Leaders Statement (TLS) will probably require substantive changes to the law that are considered beyond the scope of a technical correction bill by Congress. Therefore, a more substantive tribal amendments package addressing these concerns is planned for development once Congress completes its work on a technical corrections bill. Tribes are urged to contact their respective Senators as well as the Senate Finance Committee and the Senate Committee on Indian Affairs, seeking support to include the proposed Indian amendments in the forthcoming Senate measure.

CONCLUSION

With the enactment of welfare reform comes a myriad of issues that concern Indian tribes. Of these, the most critical is the ability of tribes to enjoy equal treatment under the law as sovereign governments (similar to states), which will in turn nurture meaningful tribal participation in welfare reform throughout Indian country. In addition, many tribal communities suffer from the lack of adequate infrastructure, economic development and other community development factors which would allow for the successful conversion of federal welfare programs to the tribal level. In order for tribes to reach the level of community development necessary to afford the capability to administer welfare and other social service programs under the law, tribes must have adequate funding for technical assistance, data collection, construction, job training, child care, and tribal enforcement plans.
 

The major work in implementing welfare reform in Indian country must come from state-tribal negotiations over those programs and services the state is willing to provide. Even though principally, tribes are reluctant to enter into negotiations with states over issues that are a part of the federal-tribal trust responsibility, the current welfare reform law does not recognize such federal responsibilities. Until changes in the law can be achieved that reaffirm the responsibility of the federal government over sovereign Indian nations, it is in the best interest of the tribes to try and achieve agreements with the states over the implementation of welfare reform in American Indian and Alaska Native communities. As this process of implementing and amending welfare reform continues through the Administration and the Congress, NCAI will continue to serve as a clearinghouse of information on this Act's critical impacts on Indian Country. If you have questions, or need further information on this issue, please contact NCAI at (202) 466-7767. * * * * *