NCAI
Welfare Reform Update, February 1999
Introduction
The NCAI Welfare Reform Program was begun in 1996 after the passage of Pub. L. 104-193, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA). Resolutions passed at NCAI's 53rd Annual Session in Phoenix, AZ established the direction that NCAI would take in disseminating information and advocating on behalf of Indian communities. Past program activities have included the submission of proposed amendments to PRWORA as well as the facilitation of multiple national forums on the impact of welfare reform on Indian country. Recent program activities have been concentrated in three main areas: the fourth welfare reform national forum, the award of a W.K. Kellogg Foundation grant, and the establishment of the NCAI Welfare Reform Task Force.
2. Myrtle Beach Welfare Reform Forum
NCAI hosted its fourth in a series of welfare reform forums in conjunction with it's 55th Annual Session in Myrtle Beach, South Carolina. The Honorable Eddie Tullis, Chairman of the Poarch Band of Creek Indians, moderated the forum entitled "Organizational Reports on Welfare Reform in Indian Country: A National Forum" where reports on research and data collection activities surrounding the impacts of welfare reform in Indian country were shared by a diverse group of Indian organizations.
This forum highlighted the fact that evaluation of the impact of welfare reform on Indian communities, whether tribes are served by tribally-administered or state-administered Temporary Assistance for Needy Families (TANF) programs, is crucial to the well-being of Indian people. Tribes need data, concrete statistical information about the impact of welfare reform in order to move Congress to affect any legislative amendments to mitigate welfare reform provisions that are harmful to Indian communities.
Of further concern is the government-to-government relations between tribes, states and the federal government. Federal and state governments persist in their lack of acknowledgment of and respect for the sovereignty of tribal governments. Tribal, federal and state commitments to enhance and strengthen government-to-government relationships must be obtained and upheld if improving the quality of life for impoverished Indian families is to occur. As this process of implementing and amending welfare reform continues through the Administration and the Congress, NCAI will continue to serve as a lead advocate on eliminating this Act's disparities toward Indian country. Through the directive of tribal leaders, NCAI stands ready to work with all interested parties to ensure that these goals are achieved.
At its 55th Annual Session in Myrtle Beach, South Carolina, NCAI announced a new phase of their Welfare Reform Program, commencing with their recent award of a three-year, $1 million grant from the W. K. Kellogg Foundation. NCAI is one of 19 grantees that Kellogg has funded under their new Devolution Initiative, which seeks to take advantage of current devolutionary trends, create an objective information base which is relevant and useable by a variety of policy stakeholders, and explore ways to engage citizens in public policy processes and decision-making.
Under its Kellogg grant, NCAI will study and address the process of devolution, its impact on Indian communities, and tribal options to work within the arena of welfare reform for the benefit Indian communities. NCAI will broaden its efforts beyond welfare reform to examine a wide range of auxiliary issues necessary to convert a welfare dependent population into a self-sufficient and economically productive community.
NCAI will focus on two of the five Kellogg focus states, as well as gather information from, and disseminate information to, all tribes nationally. The NCAI devolution grant provides for multiple areas of work: 1) networking/coalition building with other national and state non-Native governmental, professional and advocacy organizations; 2) serving as an information clearinghouse and technological information service provider, including identifying and sharing model tribal integrated social service programs that may be adaptable for use by other tribes; 3) advocating on behalf of Indian tribes by continuing to foster direct consultation and negotiation between tribal governments and agencies implementing/overseeing devolved programs; 4) partnering with tribal colleges and national organizations to develop a tribal college curriculum on welfare reform, devolution, and preparing tribal members for being productive members of tribal communities in this new environment; 5) assisting in developing and advocating for uniform tribal data collection efforts; and 6) conducting an intensified public education campaign targeting non-Native organizations; Congress; the Administration; and the general public.
Comments for TANF/NEW NPRM - The NCAI Welfare Reform Task Force, appointed by the NCAI Executive Committee during their meeting s at the NCAI 55th Annual Session in Myrtle Beach, began work in November by drafting comments to respond to the tribal Temporary Assistance for Needy Families (TANF) /Native Employment Works (NEW) Notice of Proposed Rule-Making (NPRM). After incorporating comments from tribes, inter-tribals', and Indian organizations, the task force drafted an inclusive set of comments from Indian country and submitted them to the U.S. Department of Health and Human Services by November 20, 1998. These comments are available on-line at: www.ncai.org/current NCAI advocacy activities/welfare reform/comments on the tribal TANF/NEW NPRM.
Revising the Tribal WR Amendments Package - In January, the task force began discussion on potential tribal welfare reform amendments and decided to continue to advance welfare reform legislative amendments before the 106th Congress. However, the task force felt that it may be wise to categorically separate a comprehensive tribal welfare reform amendments' package into more "issue focused" sets of amendments. By developing tribally specific positions on a variety of welfare related categories (i.e., TANF, Job Creation, Medicaid, Children's Issues, et cetera), lobbying for their inclusion into various bills that relate more specifically to a common theme may prove more successful in the current political climate.
The task force has determined that the 1997 Tribal Welfare Reform Amendments package
will be revised, edited, separated categorically, then used as points of departure for
future amendments' development work. The following highlights the current status of the
fourteen tribal amendments submitted to the 105th Congress in February 1997.
1) Supplemental Funds for Tribal TANF Programs - provides tribes operating TANF plans funding levels equal to those the tribal welfare population received under AFDC.
2) Availability of TANF Loans to Indian Tribes - clarifies current law making Indian tribes with tribal TANF programs eligible for federal welfare program loans. This amendment was included in the Balanced Budget Act of 1997 (Pub. L. 105-33).
3) Tribal Development Fund - establishes a "Tribal Development Fund" providing 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 "one thousand (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 amendment was included in the Balanced Budget Act of 1997 (Pub. L. 105-33).
5) Tribal Determination of BIA/GA Program Payment Levels - provides tribes with 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. The BIA is currently revising their tribal General Assistance regulations to reflect this change.
6) Cooperative Agreements with States over Child Support Enforcement Functions - allows tribes an option to enter into cooperative agreements with the states to use state procedures and guidelines to supplement a Tribal Court system in operating Tribal Child Support Enforcement programs. This amendment was included in the Balanced Budget Act of 1997 (Pub. L. 105-33).
7) Direct Funding for Tribal Child Support Enforcement Programs - allows tribes operating Child Support Enforcement (CSE) programs to receive direct funding from the Department of Health and Human Services (DHHS). Although this amendment was combined with tribal amendment six and included in the Balanced Budget Act of 1997 (Pub. L. 105-33), the Administration has yet to promulgate regulations and refuses to release such funding until those regulations are in place.
8) Assurance of Equal Consultation with Tribes over State Plans - assures that 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. This amendment was included in the Balanced Budget Act of 1997 (Pub. L. 105-33).
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 Retro Cession - allows a Tribe to retro cede 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. Language on retro cession of a tribal TANF plan back to state authority and control has been included in the Notice of Proposed Rule Making (NPRM) on tribal TANF/Native Employment Works (NEW) programs set for final promulgation on November 22, 1998.
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. A few states have voluntarily provided equitable access to Indian individuals under their state plans.
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.
Potential legislative issues, not part of the February 1997 amendments' package, but identified as requiring further action by the task force include:
I) Ability of Tribes to Retain "Carryover" TANF Funds. This is a major issue for all the TANF tribes and tribes considering TANF. It seems unlikely that the DHHS will reverse its position taken in the Proposed Rules, absent a legislative fix. Such a fix would not require new funding and could be argued as a matter of oversight in drafting the law.
II) Reauthorization of the Tribal Funding in the Welfare-to-Work Program, Including an Increase in the Amount of Tribal W-to-W Funding and a Relaxation of the Rules. The Welfare-to-Work (W-to-W) program was authorized for only two years, FY1998-99. The tribal set-aside is only 1% of the total W-to-W funding. The complexity of the rules and the targeting provisions have made it difficult for tribes to take full advantage of this money, which is the only new source of funding to enable tribes to provide employment services to TANF recipients. It appears that the Administration may propose reauthorizing the program, thus placing it on the Congressional agenda. In fact, Labor Department sources claim that the President's FY2000 Budget will include a one-year W-to-W reauthorization along with a 100% funding increase (increase the tribal set-aside to 2% of the total W-to-W funds for FY2000).
III) Distribution of Child Support Collections to Tribal TANF Programs. This is a major issue for many, if not all, of the TANF tribes. With or without some form of state match, such collections are a potentially important source of support for tribal TANF programs. The issue does not involve any new funding, but may require clear statutory authority to insure that tribes receive such collections from absent parents of tribal TANF clients.
IV) Treatment of the Tribal TANF Program as a Pub. L. 93-638 Program for Tribal Contracting Purposes, Including Payment of Contract Support Costs. This issue is currently before the Federal District Court in Phoenix as a result of litigation initiated by the Navajo Nation over the DHHS Secretary's initial decision to not allow tribal 638 contracting of TANF. Legislative action on this issue may raise broader questions about the scope of 638 contracting and could open up the Indian Self Determination and Education Assistance Act to other amendments with currently unknown and potentially uncontrollable consequences.
V) BIA's Revision of 25 CFR Part 20, Financial Assistance and Social Service Programs. Revising the BIA social service regulations has not been the most forthcoming and inclusive effort on the BIA's behalf. In fact, as recently as June 1998, in Green Bay, WI, the Bureau stated for the record that they would plan to hold a series of consultation sessions with tribes throughout Indian country. Tribes asked for more, including the establishment of a tribal working group to help facilitate a true negotiated rule making process (neg/reg) over the revision of these regulations. To date, no appropriate consultation with tribes has occurred over the proposed revisions to Part 20. The BIA has yet to announce any planned consultation with tribes, and, although promised much more, tribes will probably have to resort to filing written comments on these revisions during the public comment period (which usually runs 30 or 60 days) as part of a standard regulatory promulgation process.
Such a process is not keeping with Congressional and Administrative intent to create a true government-to-government relationship between tribes and the federal government, especially between tribes and the BIA. To make matters worse, it was reported that the latest draft of the BIA's proposed social service reg's appear to eliminate GA as a safety-net program of last resort. If you are sanctioned from a state or tribal TANF plan due to a noncompliance, even a noncompliance with state work participation requirements, you may be ineligible for GA.
In conjunction to the upcoming NCAI Executive Council Winter Session, NCAI's national
welfare reform task force will hold an organizational meeting on Wednesday, February 17,
1999, at the NCAI office's Main Conference Room. Discussion topics include, but are not
limited to: (a) selection of a task force chair or co-chairs; (b) identifying short term
and long term goals; (c) development of a welfare reform list of priority issues; and (d)
working with the SCIA to develop the best focus and strategy surrounding a possible
oversight hearing on welfare reform in Indian country. This may include collecting and
developing comprehensive materials on the list of priority issues and identifying the most
articulate spokespersons on welfare reform related topics.
Please contact Leland McGee or Sarah Hicks at (202) 466-7767 with suggestions or for further information.