# Child Support Enforcement: Tribal Programs > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/crs%3AR41204 ## Record - **Collection:** Congressional research report - **Document type:** CRS Report - **Published:** July 5, 2016 - **Citation:** R41204 ## Text Child Support Enforcement: Tribal Programs name redacted Specialist in Social Policy July 5, 2016 Congressional Research Service 7-.... www.crs.gov R41204 Child Support Enforcement: Tribal Programs Summary The Child Support Enforcement (CSE) program was enacted in 1975 as a federal-state program. Its mission is to enhance the well-being of children by helping custodial parents and children obtain financial support from the noncustodial parents. Although states were always required to provide CSE services to members of Indian tribes and tribal organizations who were part of their CSE caseloads, tribes were not specifically included in the CSE statute until the 1996 welfare reform law (P.L. 104-193). The 1996 law allowed any state that has Indian country within its borders to enter into a cooperative agreement with an Indian tribe if the tribe demonstrated that it had an established tribal court system with the authority to establish paternity, and establish, modify, and enforce child support orders. In addition, P.L. 104-193 gave the Secretary of the Department of Health and Human Services (HHS) the authority to make direct payments to Indian tribes that have approved CSE programs. There are currently 61 tribal CSE programs, 57 comprehensive tribal CSE programs and 4 startup tribal CSE programs (as of April 2016). In contrast to the federal matching rate of 66% for CSE programs run by the states or territories, the tribal CSE program provides direct federal funding equal to 100% of approved and allowable CSE expenditures during the start-up period, provides 90% federal funding for approved CSE programs operated by tribes or tribal organizations during the first three years of full program operation, and provides 80% federal funding thereafter. In FY2014, the 57 tribes or tribal organizations with comprehensive tribal CSE programs had an aggregate of 50,892 cases and collected over $36 million in total child support collections. Tribal CSE program services include parent location, paternity establishment, establishment of child support orders, review and modification of child support orders, enforcement/collection of child support payments, and distribution of child support. Indian tribes and tribal organizations that choose to operate a tribal CSE program must run programs that conform to the objectives of the state CSE program and that are in compliance with the tribal CSE program regulations. However, federal regulations provide some flexibility that allows tribes and tribal organizations to develop and administer tribal CSE programs that are consistent with the tribe’s law and tradition. In 2010, about 52% of the nearly 1 million American Indian and Alaska Native children were living with only one of their parents. In 2014, about 66% of American Indian and Alaska Native children were born to unmarried women. This report presents some demographic data on the number of Native Americans living in the United States and also provides statistical data on tribal CSE programs. Although the data are useful in developing an understanding of tribal CSE programs, they should not be used to draw conclusions regarding the effectiveness of tribal CSE programs. This report describes the components of tribal CSE programs and discusses issues related to jurisdictional matters, paternity establishment, child support enforcement methods, nonpayment problems, and consistency of tribal programs with each other and with state CSE programs. The report also includes three appendices. Appendix A includes six tables that arrange each tribe according to its ranking in FY2014 on several CSE program indicators. Appendix B displays FY2016 information that shows the 57 comprehensive tribal CSE programs. It also shows the four start-up tribal CSE programs. Appendix C shows the American Indian and Alaska Native household population for 2005/2010 for tribes with CSE programs. Congressional Research Service Child Support Enforcement: Tribal Programs Contents Introduction ..................................................................................................................................... 1 Background ..................................................................................................................................... 3 CSE Provisions Related to Indian Tribes and Tribal Organizations.......................................... 5 Tribal CSE Programs ....................................................................................................................... 8 Requirements for Operating a Tribal CSE Program.................................................................. 8 Jurisdictional Requirement Related to a Minimum Number of Children ........................... 9 Administrative and Management Procedures and Recordkeeping ..................................... 9 Program Services Requirements ....................................................................................... 10 Automated Systems ................................................................................................................. 16 Funding ................................................................................................................................... 17 Start-Up Programs ............................................................................................................ 18 Comprehensive Programs ................................................................................................. 19 Financing Mechanics ........................................................................................................ 19 Data ............................................................................................................................................... 20 Data Problems ......................................................................................................................... 20 Demographic Information ....................................................................................................... 21 CSE Tribal Information ........................................................................................................... 22 Issues ............................................................................................................................................. 31 Jurisdictional Matters .............................................................................................................. 32 Paternity Establishment ........................................................................................................... 35 Child Support Enforcement Methods ...................................................................................... 37 Nonpayment Problems ............................................................................................................ 39 Consistency of Tribal CSE Programs to Each Other and to State CSE Programs .................. 40 Conclusion ..................................................................................................................................... 43 Figures Figure 1. Map of Tribal CSE Programs ........................................................................................... 7 Figure 2. Tribal CSE Program: Collections and Expenditures, FY2004-FY2011 and FY2014 .................................................................................................... 27 Tables Table 1. CSE Tribal Programs ......................................................................................................... 2 Table 2. Tribal CSE Program Financial and Statistical Data, FY2004-FY2011, and FY2014 ....................................................................................................................................... 25 Table 3. Tribal CSE Program, Expenditures and Collections Per Case, FY2004-FY2010, and FY2014 ................................................................................................................................ 28 Table 4. Tribal CSE Summary Data by Tribe, FY2014 ................................................................. 29 Table A-1. Tribal CSE Collections by Tribe, in Rank Order, FY2014 .......................................... 46 Table A-2. Tribal CSE Expenditures by Tribe, in Rank Order, FY2014 ....................................... 48 Congressional Research Service Child Support Enforcement: Tribal Programs Table A-3. Tribal CSE Caseload by Tribe, in Rank Order, FY2014.............................................. 50 Table A-4. Tribal CSE Program: Paternities Established by Tribe, in Rank Order, FY2014 ........ 52 Table A-5. Tribal CSE Program: Child Support Orders Established by Tribe, in Rank Order, FY2014 .............................................................................................................. 53 Table A-6. Tribal CSE Program: Collections Per Dollar of Expenditures by Tribe, in Rank Order, FY2014 .............................................................................................................. 55 Table B-1. Comprehensive Tribal Child Support Enforcement Programs, by Date They became Comprehensive.............................................................................................................. 58 Table B-2. Start-Up Tribal Child Support Enforcement Programs ................................................ 60 Table C-1. Population Figures for Tribes with Tribal CSE Programs: Tribal Enrollment (2005), BIA Service Population (2010), and Census AIAN Populations in CensusDefined Federal AIAN Areas (2010).......................................................................................... 61 Appendixes Appendix A. Tribal CSE Program Indicators ................................................................................ 46 Appendix B. Comprehensive and Start-Up Tribal CSE Programs ................................................ 58 Appendix C. American Indian and Alaska Native Population Figures for Tribes with CSE Programs..................................................................................................................................... 61 Contacts Author Contact Information .......................................................................................................... 64 Congressional Research Service Child Support Enforcement: Tribal Programs Introduction Child support is the cash payment that a noncustodial parent is obligated to pay for the financial support of his or her children. All 50 states, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands operate Child Support Enforcement (CSE) programs. Historically, states were required to provide CSE services to members of Indian tribes and tribal organizations who were part of their CSE caseloads. Although tribes were not specifically included in the CSE statute until the 1996 welfare reform law, several tribes had negotiated agreements (e.g., informal, cooperative, intergovernmental, and joint powers) with some states in a mutual effort to serve Native American1 children. The 1996 welfare reform law (P.L. 104-193) allowed direct federal funding of approved tribal CSE programs.2 As of April 20, 2016, there were 61 tribal CSE programs.3 (See Table B-1 and Table B-2.) The Indian tribes or tribal organizations with tribal CSE programs are listed in the text box on the next page and are shown on the map in Figure 1. In FY2014, the 57 tribes or tribal organizations with comprehensive CSE programs distributed over $36 million in total child support collections in FY2014 to 50,892 cases in the CSE tribal program. Only federally recognized tribes and tribal organizations are eligible to operate tribal CSE programs. As of March 2016, there are 566 federally recognized Indian tribes.4 Although tribal CSE programs do not have to have a court system per se, they are required to have either a judicial or administrative system to hear, establish, and enforce child support orders.5 Moreover, tribal CSE programs are required to ensure that the due process rights of participants are protected. According to the federal Office of Child Support Enforcement (OCSE) in the U.S. Department of Health and Human Services (HHS), it may be necessary to make adjustments to an existing court system or to develop an administrative process under a start-up tribal CSE program.6 However, according to OCSE, when a tribe applies for funding to operate a 1 In this report, the terms “Native American,” “Indian,” and “AIAN” will be used interchangeably. They all mean American Indians and Alaska Natives (“Alaska Natives” includes the American Indians, Eskimos (Inuit and Yupik), and Aleuts of Alaska). 2 Federal regulations that were published in their final form in 2004, rather than the federal law, specified the level of federal funding. Pursuant to title 45 Code of Federal Regulation (C.F.R.) Section 309.130(c), 100% federal funding is available for tribal CSE programs during the start-up period, 90% federal funding during the first three years that the program is fully operational, and 80% federal funding thereafter. 3 U.S. Department of Health and Human Services, Office of Child Support Enforcement, List of Tribal CSE Programs, https://ocse.acf.hhs.gov/int/directories/index.cfm?fuseaction=main.tribalivd. 4 “Federally recognized” means these tribes and groups have a special, legal relationship with the U.S. government. This relationship is referred to as a government-to-government relationship. A number of Indian tribes and groups in the U.S. do not have a federally recognized status, although some are state-recognized. This means they have no relations with the Bureau of Indian Affairs (BIA) or the programs it operates. See the National Conference of State Legislatures website, http://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-state-recognized-tribes.aspx. Also see Federal Register, vol. 81, no. 19, Friday, January 29, 2016, Notices, p. 5019. 5 About 275 federally recognized tribes have tribal courts and 23 have Courts of Indian Offenses, according to the National Tribal Justice Resource Center of the National American Indian Court Judges Association. Tribal courts vary widely with respect to the types of cases heard, and the law applied in each is distinctly unique to each tribe. Some tribal courts resemble Western-style courts where written laws and rules of court procedure are applied. However, an increasing number of tribes are returning to their traditional means of resolving disputes through the use of peacemaking, elders’ councils, and sentencing circles; http://www.tribalresourcecenter.org/tribalcourts/history.asp. 6 In FY2016, there were 4 start-up tribal CSE programs. A start-up tribal program does not have to have all of the 14 CSE program components mandated by federal regulations. Congressional Research Service 1 Child Support Enforcement: Tribal Programs comprehensive tribal CSE program,7 it must demonstrate that the judicial or administrative process is sufficient to establish and enforce child support orders. Thus, the universe of tribes that are potentially eligible to operate a tribal CSE program may not be as high as 566 because the tribe must have a court system (which about 298 tribes have) or an administrative system. The number of potentially eligible tribes is further reduced because tribes must have at least 100 children under their jurisdiction, and many tribes do not meet this requirement. Table 1. CSE Tribal Programs Alabama-Coushatta Tribe of TX Mille Lacs Band of Ojibwe Indian Reservation Aleutian/Pribiloff Islands Association Modoc Tribe of OK Apache Tribe of OK* Muscogee (Creek) Nation Blackfeet Nation Navajo Nation Central Council Tlingit and Haida Indian Nez Perce Tribe Cherokee Nation Nooksack Indian Tribe Chickasaw Nation Northern Arapaho Tribe Chippewa Cree Tribe Oneida Tribe of Indians of WI Coeur D’ Alene Tribe Osage Tribe of OK Comanche Nation of OK Penobscot Nation Confederate Tribe of Salish and Kootenai Ponca Tribe of OK Confederated Tribes of the Colville Reservation Port Gamble S'Klallam Tribe Confederated Tribes of the Umatilla Indian Reservation Prairie Band Potawatomi Nation Delaware Tribe of Indians* Pueblo of Zuni Eastern Band of Cherokee Indians Puyallup Tribe of Indians Eastern Shoshone Tribe Quinault Indian Nation Forest County Potawatomi Community Red Cliff Band of Lake Superior Chippewas Fort Belknap Indian Community Red Lake Band of Chippewa Indians Ho-Chunk Nation Sac & Fox Tribe (Meskwaki Nation) Kaw Nation Saint Regis Mohawk Tribe Keweenaw Bay Indian Community Shinnecock Indian Nation* Kickapoo Tribe in KS Shoshone-Bannock Tribes* Kickapoo Tribe of OK Sisseton-Wahpeton Oyate Sioux Tribe Klamath Tribes Standing Rock Sioux Tribe Lac Courte Oreilles Stockbridge-Munsee Community Lac Du Flambeau Band of Lake Superior Chippewa Indians The Suquamish Tribe 7 In FY2016, there were 57 comprehensive tribal CSE programs. A tribal program is considered comprehensive if it has all of the 14 program components stipulated in the federal tribal CSE regulations. Congressional Research Service 2 Child Support Enforcement: Tribal Programs Leech Lake Band of Ojibwe Three Affiliated Tribes Lummi Nation Tulalip Tribes Menominee Indian Tribe of WI White Earth Nation Mescalero Apache Tribe Winnebago Tribe of NE Yurok Tribe Source: Data from the U.S. Department of Health and Human Services, Office of Child Support Enforcement and data from the following webpage—http://www.supporttribalchildren.org/Tribal%20Program%20Directory/ Tribal%20CS%20Directory.pdf, April 20, 2016. Note: * denotes start-up programs Because sufficient demographic and social statistics on Indian tribal members are not collected by federal or other entities, it is difficult to estimate how many children under tribal jurisdiction are not covered by tribal CSE programs. Most estimates are derived from Census counts, which are based on race, not tribal membership. (See the discussion under “Data” below.) One estimate based on American Community Survey (ACS) racial data found that, in 2014, about 53% of the 631,831 American Indian and Alaska Native children (i.e., roughly 335,000 children) were living with only one of their parents.8 In 2014, about 66% of American Indian and Alaska Native children were born to unmarried women (again, according to race).9 This report provides a brief legislative history of CSE provisions related to tribes, presents basic information on tribal CSE programs, describes the information that tribal CSE programs must contain in order to be approved for federal funding, displays data on current tribal CSE programs,10 and discusses issues related to ensuring that Native American children receive the child support to which they are entitled. The report also includes three appendices. Appendix A includes six tables that arrange each tribe according to its ranking in FY2014 on several CSE program features or indicators. Appendix B displays FY2016 information that shows the 57 comprehensive tribal CSE programs. It also names the four start-up tribal CSE programs. Appendix C shows estimates of total population for each tribe that operates a tribal CSE program. Background The CSE program was enacted in 1975 as a federal-state program (Title IV-D of the Social Security Act) to help strengthen families by securing financial support for children from their noncustodial parent on a consistent and continuing basis and by helping some families to remain self-sufficient and off public assistance. The mission of the CSE program has shifted and 8 In 2014, the comparable percentages of children living in one-parent households for other groups were as follows: 17% of Asian American and Pacific Islander children, 25% of white children, 42% of Hispanic children, and 66% of black children. (Source: Annie E. Casey Foundation, Kids Count Data Center, Data for 2014, http://datacenter.kidscount.org/data/tables/107-children-in-single-parent-families-by-race?loc=1&loct=1#detailed/1/ any/false/869,36,868,867,133/10,11,9,12,1,185,13/432,431.) 9 Brady E. Hamilton, Joyce A. Martin, Michelle J.K. Osterman, Sally C. Curtin, and T.J. Mathews, “Births: Final Data for 2014,” U.S. Department of Health and Human Services, National Center for Health Statistics, National Vital Statistics Reports, vol. 64, no. 12, December 23, 2015, Table 15. 10 In FY2014, the 57 tribes with comprehensive CSE programs served about 51,000 cases. A CSE case may include more than one child. OCSE defines a CSE “case” as a noncustodial parent (mother, father, or putative/alleged father) who is now or eventually may be obligated under law for the support of a child or children receiving services under the CSE program. If the noncustodial parent owes support for two children by different women, that would be considered two cases; if both children have the same mother, that would be considered one case. Congressional Research Service 3 Child Support Enforcement: Tribal Programs expanded over the years. It has evolved from being a program primarily focused on welfare cost recovery to a program that focuses more on enhancing the well-being of children by obtaining child support from noncustodial parents and by emphasizing the personal responsibility of both parents to their children. Child support payments enable parents who do not live with their children to fulfill their financial responsibility to their children by contributing to the payment of childrearing costs. The CSE program currently provides seven major services on behalf of children: (1) parent location, (2) paternity establishment, (3) establishment of child support orders, (4) review and modification of child support orders, (5) enforcement/collection of child support payments, (6) distribution of child support payments, and (7) establishment and enforcement of medical support. The CSE program serves both families that receive Temporary Assistance for Needy Families (TANF) benefits and those who do not. All 50 states and four jurisdictions (the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands) operate CSE programs. In addition, 61 tribes or tribal organizations have CSE programs. The CSE program is administered by the federal Office of Child Support Enforcement (OCSE), which is in the Administration for Children and Families (ACF) within the Department of Health and Human Services (HHS). In the early days of child support enforcement, states were required to cooperate in interstate CSE cases, but problems arose stemming from the autonomy of local courts. Family law traditionally had been under the jurisdiction of state and local governments, and citizens fell under the jurisdiction of the courts where they lived. Thus, when parents lived in different states, conflicts arose with regard to which state’s rules applied to the case in question. During the 1930s and 1940s, domestic/family law under the jurisdiction of state and local courts was used to establish and enforce child support obligations when the noncustodial parent, custodial parent, and child lived in the same state. But when noncustodial parents lived out of state, enforcing child support was cumbersome and ineffective. Often, the only option in those cases was to extradite the noncustodial parent and, when successful, jail the person for nonpayment of child support. This procedure, which was rarely used, generally punished the delinquent noncustodial parent, but it left the abandoned family without financial support. Even up until the late 1990s, many commentators and CSE staff said that interstate cases were the most difficult child support orders to enforce. Others, however, noted that when a child support case involved a Native American child, the case moved to another level of complexity. Before enactment of the 1996 welfare reform law (P.L. 104-193), the CSE statute placed the authority to administer the delivery of CSE services solely with the states.11 However, within much of Indian country, the authority of state and local governments was very limited or nonexistent. Thus, states were limited in their ability to provide CSE services on tribal lands and, vice versa, Indian families had difficulty obtaining CSE services from the state CSE programs.12 Pursuant to the Constitution, numerous court decisions, and federal law, Indian tribes have the authority to make and enforce laws, to adjudicate civil and criminal disputes (including domestic relations cases), to tax, and to license, regarding members and other Indians within their 11 At state option, CSE services can be administered by local units of government. In most of the states (29 states and the District of Columbia), the CSE program is state administered with offices in many local areas. However, 14 states have programs that are locally (i.e., county) administered; and eight states have programs that are state administered in some counties and locally administered in others (two of these states indicated that they also use private contractors). (Source: OCSE, Intergovernmental Referral Guide, Section A1 for each of the states, January 2008, http://ocse.acf.hhs.gov/ext/irg/sps/selectastate.cfm.) 12 Federal Register, vol. 69, no. 61, March 30, 2004, Tribal Child Support Enforcement Programs, preamble of final rule, p. 16638. Congressional Research Service 4 Child Support Enforcement: Tribal Programs jurisdictions. State power is limited unless Congress has authorized it. Therefore, prior to the 1996 welfare reform legislation, states that attempted to provide CSE services on tribal lands were restricted in their authority to establish paternity and to establish and enforce child support orders. During the pre-1996 period, cooperative agreements between Indian tribes and states were the primary method by which Indian children (especially those living on reservations) received CSE services.13 CSE Provisions Related to Indian Tribes and Tribal Organizations This section describes federal laws relating to child support that specifically mention Indian tribes and tribal organizations. In 1994, P.L. 103-383 (the Federal Full Faith and Credit for Child Support Orders Act) was enacted. Section 3(a) of the 1994 act required a state to recognize and enforce another state’s child support order. “State” is defined as “a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico, the territories and possessions of the United States, and Indian country (as defined in Section 1151 of Title 18 of the U.S. Code).”14 Therefore, states and tribes are required to recognize and enforce valid tribal child support orders, without regard to whether such orders were issued by a state or tribal court or agency. In 1996, P.L. 104-193 (the Personal Responsibility and Work Opportunity Reconciliation Act of 1996) included two CSE provisions pertaining to Indian tribes. First, it allowed states to enter into cooperative agreements with Indian tribes and tribal organizations,15 and second, it authorized the HHS Secretary to provide direct federal funding to Indian tribes. The 1996 law allowed any state that has Indian country (as defined in 18 U.S.C. 1151) within its borders to enter into a cooperative agreement with an Indian tribe or tribal organization if the tribe demonstrated that it had an established tribal court system with the authority to establish paternity, and establish, modify, and enforce child support orders.16 In addition, P.L. 104-193 gave the HHS Secretary the 13 Office of Child Support Enforcement, Action Transmittal OCSE-AT-98-21, “Implementing Section 454(33) of the Social Security Act, Cooperative Agreements Between Indian Tribes and State Agencies Operating a State Child Support Enforcement Program Under Title IV-D of the Act,” July 28, 1998, p. 1. 14 28 U.S.C. 1738B(b). “Indian country” is defined in 18 U.S.C. 1151 as “(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-ofway running through the same.” 15 Prior to the 1996 law, CSE state plan requirements only included provisions for states to cooperate with other states in interstate CSE cases. Moreover, because states generally did not have jurisdiction on Indian reservations, a tribe would enter into an agreement with the state to recognize the state (or county) jurisdiction on tribal lands for the sole purpose of child support enforcement. In such agreements, the tribe generally allowed the CSE agency to extend CSE procedures to the reservation. If under such agreement the CSE agency requested the tribe to carry out a child support enforcement activity, the tribe had to perform the child support enforcement function in accordance with federal CSE regulations. The 1996 law modified the federal CSE law that required states to cooperate with other states to also include cooperation with all tribal CSE programs. Further, under the 1996 law, a cooperative agreement with a tribal entity does not require that tribal law conform with federal CSE regulations in order for the state to receive federal CSE matching funds for the CSE services provided to the family (i.e., the tribe would receive the payment specified in the cooperative agreement and the state or locality would be entitled to federal matching funds for CSE expenditures made pursuant to the agreement). See Office of Child Support Enforcement, “Implementing section 454(33) of the Social Security Act, Cooperative Agreements Between Indian Tribes and State Agencies Operating a State Chile Support Enforcement Program Under Title IV-D of the Act,” OCSE-AT-98-21, July 28, 1998. 16 42 U.S.C. 654(33). This provision defines tribes and tribal organizations in accordance with §4 of the Indian SelfDetermination and Education Assistance Act (P.L. 93-638, as amended), which defines “Indian tribe” as a federally (continued...) Congressional Research Service 5 Child Support Enforcement: Tribal Programs authority to make direct payments to Indian tribes that have approved CSE programs. In contrast to the federal matching rate of 66% for CSE programs run by the states or territories, the CSE program provides direct federal funding equal to 100% of approved and allowable CSE expenditures during the start-up period, provides 90% federal funding for approved CSE programs operated by tribes or tribal organizations during the first three years of full program operation, and provides 80% federal funding thereafter.17 Finally, in 1997, P.L. 105-33 (the Balanced Budget Act of 1997), which in part made numerous technical amendments to the 1996 welfare reform law (P.L. 104-193), made minor changes to eliminate ambiguity in the provision that allowed state CSE agencies to enter into cooperative agreements with an Indian tribe or tribal organization. The 1997 act also clarified that direct federal funding could be given to an Indian tribe or tribal organization that demonstrates the capacity to operate a tribal CSE program that meets the objectives of the CSE program, “including the establishment of paternity, establishment, modification, and enforcement of support orders, and location of absent parents.”18 (...continued) recognized tribe or an Alaska Native regional or village corporation, and defines “tribal organization” as a tribal government, an organization established by a tribal government, or a community organization established by tribal members (25 U.S.C. 450b(e), (l)). 17 45 C.F.R. §309.130(c), p. 326 (October 1, 2015 edition). 18 42 U.S.C. 655(f). According to OCSE-AT-98-21 (July 28, 1998), it is not necessary that the tribe comply with every federal CSE regulation in order to qualify for a cooperative agreement with a state CSE agency. Congressional Research Service 6 Figure 1. Map of Tribal CSE Programs Source: Congressional Research Service, based on data from the Office of Child Support Enforcement, Department of Health and Human Services. Notes: The map shows the locations of the 61 tribal CSE programs (57 comprehensive and 4 start-up). Tribal CSE programs are labeled and shaded. Areas of tribes without tribal CSE programs are outlined, but not labeled or shaded. Hawaii is not shown because it has no federally recognized Indian tribes. The Comanche Nation area shown is the Kiowa-Comanche-Apache Oklahoma Tribal Statistical Area (OTSA) determined by the Census Bureau. Alaska areas shown are Alaska Native Regional Corporation (ANRC) statistical areas determined by the Census Bureau. CRS-7 Child Support Enforcement: Tribal Programs Tribal CSE Programs Part of the mission of the federal Office of Child Support Enforcement (OCSE) is to provide direction, guidance, technical assistance, and oversight to state and tribal CSE program offices. The Assistant Secretary for Children and Families is the official director of OCSE, but the deputy director/commissioner manages daily operation of the OCSE. OCSE’s Division of Special Staffs works with tribal CSE programs. In addition, there are federal CSE staff in each of the Administration for Children and Families’ 10 regional offices who are assigned to work on tribal matters. Regional office staff work directly with states and tribes on program implementation and operations. Central and regional offices collaborate to assess state and tribal needs, and to provide technical assistance, policy clarification, training, and support for CSE programs.19 Indian tribes and tribal organizations that choose to operate a tribal CSE program must run programs that conform to the objectives of the state CSE program and are in compliance with the tribal CSE program regulations. However, federal regulations provide some flexibility that allows tribes and tribal organizations to develop and administer tribal CSE programs that are consistent with the tribe’s law and tradition. Moreover, some CSE program documents indicate that tribes and tribal organizations should review the regulatory requirements to determine if a CSE program is appropriate for their tribe or tribal organization.20 Requirements for Operating a Tribal CSE Program A tribal CSE plan must include the following components in order to be approved by HHS and thereby receive federal funds for its operation:21 (1) a description of the population subject to the jurisdiction of the tribal court or administrative agency for child support purposes, (2) evidence that the tribe has in place procedures for accepting all applications for CSE services and providing CSE services required by law and regulation, (3) assurance that due process rights are protected, (4) administrative and management procedures, (5) safeguarding procedures, (6) maintenance of records, (7) copies of applicable tribal laws and regulations, (8) procedures for the location of noncustodial parents, (9) procedures for the establishment of paternity, (10) guidelines for the establishment and modification of child support obligations, (11) procedures for income withholding, (12) procedures for the distribution of child support collections, (13) procedures for intergovernmental case processing, and (14) tribally determined performance targets.22 In addition, federal law and regulations permit tribes or tribal organizations that cannot satisfy all of the 14 requirements but that can demonstrate their capacity to operate a CSE program to request start-up funding.23 Such tribes or tribal organizations must submit a program development 19 Office of Child Support Enforcement, “Building a Tribal IV-D Program: A Guide to the Start-Up Application Process,” Information Memorandum IM-05-06, June 22, 2005, p. 1. 20 Ibid, p. 4. 21 A tribe or tribal organization may submit a tribal CSE program application at any time. The HHS Secretary or his or her designee must determine whether the application meets the specified requirements within 90 days of receipt. If the HHS Secretary or designee needs additional information, the tribe will be notified to provide the needed material. The HHS Secretary or the designee must approve or disapprove the application within 45 days of receipt of the additional information. A tribe or tribal organization may re-apply at any time after it has resolved the matter that led to the disapproval of its CSE program. (Source: Title 45 C.F.R. Sections 309.35 and 309.50, p. 317 and p. 319 (October 1, 2015 edition).) 22 Federal Register, vol. 69, no. 61, March 30, 2004, p. 16643. Also see 45 C.F.R. §309.65, p. 320 (October 1, 2015 edition). 23 45 C.F.R. §309.16, p. 316 (October 1, 2015 edition). (Note: In this context, the term “capacity” generally means (continued...) Congressional Research Service 8 Child Support Enforcement: Tribal Programs plan to HHS that indicates their ability to meet certain milestones, and meet the 14 required components mentioned above within a certain time frame. Jurisdictional Requirement Related to a Minimum Number of Children There are 566 federally recognized tribal governments in the United States. According to Census Bureau data, based on race, there were 2.9 million persons who classified themselves as solely American Indian or Alaska Native (AIAN) in 2010, representing about 1% of the U.S. population.24 The 2010 Census data indicate that 30% of AIAN persons are under the age of 18.25 Because the enrollment of federally recognized tribes varies widely (some tribes have fewer than 10 persons while others have over 200,000 persons)26 it is likely that many tribes will have fewer than 100 children under age 18. To obtain approval of its tribal CSE plan, a tribe or tribal organization must certify that there are at least 100 children under the age of majority (as defined by tribal law or code) in the population subject to the jurisdiction of the tribal court or administrative agency.27 This may include Indian children who are not members of the applying tribe but who reside on the reservation. In addition, children who are members of the tribe do not have to live on the tribe’s reservation in order for the tribal court or administrative agency to have jurisdiction over such children. Moreover, children of employees of the tribe and its tribal enterprises or privately owned tribal businesses on the reservation who reside either on or off reservation may also be included, provided they are subject to the jurisdiction of the tribal court or administrative agency.28 Administrative and Management Procedures and Recordkeeping The tribal CSE plan must include a description of the tribal administering agency and the distribution of responsibilities within the agency. The plan must include evidence that all federal funds and amounts collected by the tribal CSE agency are protected against loss. Tribes and tribal organizations may comply with this requirement by submitting documentation that every person who receives, disburses, handles, or has access to or control over funds collected is covered by a bond or insurance sufficient to cover all losses. The plan must include procedures under which notices of child support collected, itemized by month of collection, are provided to families receiving services under the tribal CSE program at least once a year and to either the custodial or noncustodial parent upon request.29 If the tribal CSE agency intends to charge an application fee, the plan must contain provisions that the fee will be uniformly applied and cannot exceed $25; that in intergovernmental cases referred for services, the application fee may only be charged by the jurisdiction in which the (...continued) basic governmental and administrative capabilities, such as an effective accounting system and experience in successfully managing service programs.) 24 U.S. Census Bureau, “The American Indian and Alaska Native Population: 2010,” by Tina Norris, Paula L. Vines, and Elizabeth M. Hoeffel, 2010 Census Briefs, C2010BR-10, January 2012, p. 4 and p. 17. 25 U.S. Census Bureau, The 2012 Statistical Abstract: The National Data Book, p. 16. 26 U.S. Department of the Interior, Bureau of Indian Affairs, 2005 American Indian Population and Labor Force Report, Washington, DC, http://www.bia.gov/idc/groups/public/documents/text/idc-001719.pdf. 27 CSE law allows a tribe or tribal organization to receive a waiver from the 100-children rule if it can demonstrate to the HHS Secretary that it can operate a CSE program with fewer than 100 children. 28 Office of Child Support Enforcement, Action Transmittal (OCSE-AT-05-07), May 12, 2005, p. 2 and p. 7. 29 45 C.F.R. §309.75, p. 320 (October 1, 2015 edition). Congressional Research Service 9 Child Support Enforcement: Tribal Programs individual applies for services; that fees may not be charged to individuals receiving services under Titles IV-A (TANF), IV-E (foster care assistance), or XIX (Medicaid) of the Social Security Act; and that the tribal CSE agency may recover actual costs of providing services in excess of the application fee. Child support application fees collected and costs recovered are considered program income and must be used to reduce the amounts of expenditures for federal matching. In other words, the tribal CSE agency must exclude from its quarterly expenditure claims an amount equal to all fees collected and costs recovered during the quarter.30 The tribal CSE plan is required to provide that the tribal CSE agency will maintain records necessary for proper and efficient operation of the program, including records regarding (1) applications for child support services; (2) efforts to locate noncustodial parents; (3) actions taken to establish paternity and obtain and enforce child support; (4) amounts of child support owed, child support arrearages, and amounts and sources of child support collections, and the distribution of such collections; (5) tribal CSE program expenditures; (6) any fees charged and collected, if applicable; and (7) statistical, fiscal, and other records necessary for reporting and accountability.31 Program Services Requirements The tribal CSE agency is required by federal law to extend the full range of services available under its tribal CSE plan to states and other tribal CSE programs, and also to respond to all requests from, and to cooperate with, states and other tribal CSE programs. Locating Absent Parents The tribal CSE plan must include provisions governing the location of custodial and noncustodial parents and their assets. The tribal CSE agency must attempt to locate custodial and noncustodial parents or sources of income and/or assets when location is required to take necessary action in a case, and must use all sources of information and records reasonably available to locate custodial32 and noncustodial parents and their sources of income and/or assets. Tribes have many options and resources for obtaining location information, such as friends and relatives of the party being located; tribal employment records; tribal records; utilities; the United States Postal Service; organizations such as labor unions or professional associations; federal, state, local, or tribal tax departments; real estate records; law enforcement; credit bureaus; public assistance and social services agencies; the Department of Natural Resources; and licensing boards (e.g., motor vehicle, professional, recreation).33 Tribes and tribal organizations may also contact any other tribal, state, or federal agencies that may have information, such as the Fish and Game Commission or the Conservation Agency. Other locate options tribes and tribal organizations may select include directly accessing a state system or requesting information from a state system. Pursuant to P.L. 113-183, the Preventing Sex Trafficking and Strengthening Families Act of 2014 (enacted September 29, 2014), tribes and 30 Ibid. 45 C.F.R. §309.85, p. 321 (October 1, 2015 edition). 32 The reference to custodial parents is included to ensure that locate sources are used to find custodial parents for whom support has been collected and whom the tribe may be unable to find. (Source: Federal Register, vol. 69, no. 61, March 30, 2004, p. 16644.) 33 Office of Child Support Enforcement, “OCSE Training Courses for Tribal IV-D Programs—Locate Module,” http://www.acf.hhs.gov/programs/cse/resources/tribal/training/. 31 Congressional Research Service 10 Child Support Enforcement: Tribal Programs tribal organization are now considered “authorized persons” and thereby have direct access to the Federal Parent Locator Service (FPLS).34 The FPLS is an assembly of systems operated by the Office of Child Support Enforcement (OCSE) to assist states in locating noncustodial parents, putative fathers, and custodial parents for the establishment of paternity and child support obligations, as well as the enforcement and modification of orders for child support, custody, and visitation. The FPLS also assists federal and state agencies in identifying overpayments and fraud, and assists with assessing benefits. Developed in cooperation with the states, employers, federal agencies, and the judiciary, the FPLS was expanded by P.L. 104-193 (the 1996 welfare reform law). According to an OCSE Tribal Dear Colleague Letter, tribes and tribal organizations will be able to access the following FPLS data:    The National Directory of New Hires (NDNH): a central repository of employment, unemployment insurance, and wage data from State Directories of New Hires, State Workforce Agencies, and federal agencies. The Federal Case Registry (FCR): a national database that contains information on individuals in child support cases and child support orders. (Note: Tribal programs are not required to send tribal case information to the FCR, but they may benefit from having access to the information contained in the FCR.) Tribes and tribal organizations now also have access to data from the following federal agencies: Social Security Administration, Department of Defense, U.S. Department of Veterans Affairs, and Federal Bureau of Investigation.35 Paternity Establishment The tribal CSE agency must attempt to establish paternity by the process set out under tribal law, code, and/or custom. It must also provide the alleged father an opportunity to voluntarily acknowledge paternity. In a contested paternity case, the child, the mother, and the alleged father or fathers (more than one man may be alleged as the father) must submit to a genetic test (unless otherwise barred by tribal law) upon the request of any party if the request is supported by a sworn statement that (1) alleges paternity, and sets forth facts establishing a reasonable possibility of the requisite sexual contact between parties; or (2) denies paternity, and sets forth facts establishing a reasonable possibility of the nonexistence of sexual contact between the parties. Federal regulations clarify that establishment of paternity under tribal CSE programs does not infer tribal enrollment or membership.36 To meet tribal CSE plan requirements, tribal law must explicitly provide for genetic testing. Like state CSE programs, a tribe may have a conclusive presumption of paternity when a child is born to married parents or if a noncustodial parent has been validly served in a paternity proceeding and failed to contest paternity in such proceeding. Also, some tribal CSE programs may recognize a man who holds himself out to be the father as the father, and in effect deem the man to be the father and thereby may preclude that man from challenging paternity. Federal regulations allow the tribal CSE program to prohibit genetic testing in cases such as those mentioned above in 34 Before the enactment of P.L. 113-183, tribes and tribal organizations were not authorized to request Federal Parent Locator Service information, but a resident parent, legal guardian, agent, or attorney of a child could request locate information through the state CSE agency if location assistance was needed for child support purposes. (This option is still available to such persons or entities.) 35 U.S. Department of Health and Human Services, Administration for Children and Families, Office of Child Support Enforcement, Tribal Dear Colleague Letter, “Tribal Access to the FPLS,” TDCL-16-01, February 22, 2016. 36 Federal Register, vol. 69, no. 61, March 30, 2004, p. 16644. Congressional Research Service 11 Child Support Enforcement: Tribal Programs which the tribe had already determined or stipulated paternity. In such cases, because paternity had already been determined, genetic testing would thereby be barred by tribal law.37 Federal regulations also stipulate that the tribal CSE agency is not required to establish paternity in any case involving incest or rape, or in a case in which legal proceedings for adoption are pending.38 When genetic testing is used to establish paternity, the tribal CSE agency must identify and use accredited laboratories, which perform at reasonable cost legally and medically acceptable genetic tests that seek to identify the father or exclude the alleged father.39 Child Support Order Establishment and Modification The tribal CSE plan must establish one set of child support guidelines by law or by judicial action for setting and modifying child support obligation amounts; include a copy of the child support guidelines; and indicate whether noncash payments of support will be permitted to satisfy the child support obligation. However, pursuant to federal regulations, noncash payments may not be used to satisfy assigned support obligations (i.e., child support obligations for children receiving TANF cash benefits).40 Federal regulations define “noncash support” as “support provided to a family in the nature of goods and/or services, rather than in cash, but which, nonetheless, has a certain and specific dollar value.”41 The noncash support must directly contribute to the needs of a child, such as “making repairs to automobiles or a home, the clearing or upkeep of property, providing a means for travel, or providing needed resources for a child’s participation in tribal customs and practices.”42 A tribal support order allowing noncash payments must state the specific dollar amount of the support obligation. The tribal CSE plan must provide for the application of the guidelines unless there is a written finding or a specific finding on the record of the tribunal that the application of the guidelines would be unjust or inappropriate in a particular case. The guidelines must take into account the needs of the child and the earnings and income of the noncustodial parent and be based on specific descriptive and numeric criteria.43 The child support guidelines must be reviewed, and if appropriate revised/modified, at least every four years and must provide a rebuttable presumption that the child support award is the correct amount based on the guidelines.44 37 Ibid, p. 16658. 45 C.F.R. §309.100, p. 322 (October 1, 2015 edition). 39 Probability of exclusion testing can exclude 95%-99% of falsely accused men. In other words, the test generally is able to determine that a man is “not” the father of a given child. Thus, there is a very high probability the test will exonerate a falsely accused man. The exclusion probability has nothing to do with the likelihood that a non-excluded man may be the father. Probability of paternity testing examines the similarities between the alleged father’s blood and the child’s and a calculation is made regarding the statistical likelihood of paternity based on the chance of such similarities occurring in a random male in the general population. Probability of paternity testing generally can determine with almost 100% probability that a man is the father of a given child. 40 45 C.F.R. §309.105, p. 323 (October 1, 2015 edition). 41 45 C.F.R. §309.05, p. 314 (October 1, 2015 edition). 42 U.S. Department of Health and Human Services, Office of Child Support Enforcement, “Tribal and State Jurisdiction to Establish and Enforce Child Support,” March 12, 2007, p. 59, http://www.acf.hhs.gov/programs/cse/pol/IM/2007/ im-07-03.htm. 43 45 C.F.R. §309.105, p. 323 (October 1, 2015 edition). 44 Ibid. 38 Congressional Research Service 12 Child Support Enforcement: Tribal Programs The tribe or tribal organization must also provide assurances that it will recognize child support orders issued by other tribes and tribal organizations, and by states, in accordance with the requirements under 28 U.S.C. 1738B, the Full Faith and Credit for Child Support Orders Act.45 Tribal child support orders are established through use of tribal courts, Code of Federal Regulations (CFR) Courts,46 state courts, administrative processes, mediators prior to going to court, and agreement orders. Most tribes use petitions to establish child support orders. Means of serving process include tribal process servers, tribal police, tribal security officers, private process servers, sheriffs, voluntary service via sending a letter to the individual, court bailiffs, and subpoena or summons.47 Jurisdictional issues affect how cases are established. Some tribes exert jurisdiction over tribal members, no matter where they are in the country, based on enrollment factors. Other tribes assert that they have concurrent jurisdiction in paternity cases when the child was born off the reservation but to an enrolled tribal member.48 Jurisdictional claims between tribes and states are sometimes very contentious and it can be hard for either entity to give up jurisdiction.49 Medical Child Support There is no current requirement that tribal support orders include medical support.50 However, there is no prohibition for a tribal support order to do so. Tribes are encouraged to make sure that children have access to medical care through the Indian Health Service (IHS) or otherwise.51 The IHS is an agency of the United States Public Health Service, within HHS. It does not provide health insurance coverage. But, it is responsible for providing federal health services to the American Indians and Alaska Natives who belong to the 566 federally recognized tribes.52 Enforcement/Income Withholding Tribal CSE agencies are responsible for enforcing child support orders. However, tribes are only mandated to use the income withholding enforcement method. Any other enforcement actions 45 Ibid. Courts of Indian Offenses are courts operated by the U.S. Department of the Interior, Bureau of Indian Affairs, on certain reservations. Those courts operate under federal regulations contained in Volume 25 of the Code of Federal Regulations and thus are often referred to as “CFR” courts. 47 Office of Child Support Enforcement, “Tribal Child Support Enforcement Systems Workgroup, Session III Joint Application Development Final Report,” October 2005, p. 15. 48 Ibid. 49 Pursuant to federal regulations, tribes are required to provide in their Tribal CSE Plan a description of the population subject to the jurisdiction of the tribe for child support purposes (45 C.F.R. §309.65(a)(1) and 45 C.F.R. §309.70 ). 50 Federal law mandates that states have procedures under which all child support orders are required to include a provision for medical support for the dependent child to be provided by either or both parents. Medical support is the legal provision of payment of medical, dental, prescription, and other health care expenses for dependent children. It can include provisions for health care coverage, such as coverage under a health insurance plan (including payment of premium costs, co-payments, and deductibles) as well as cash payments for a dependent child’s medical expenses. Pursuant to changes mandated by the Deficit Reduction Act of 2005 (P.L. 109-171), if appropriate health insurance is available to either parent, states are required to establish an order requiring that the children be placed on such coverage with appropriate cost sharing. Moreover, states now are able to enforce such orders against both custodial and noncustodial parents. 51 Federal Register, vol. 69, no. 61, March 30, 2004, p. 16660. 52 U.S. Department of Health and Human Services, Office of Child Support Enforcement, “Tribal and State Jurisdiction to Establish and Enforce Child Support,” March 12, 2007, p. 89, http://www.acf.hhs.gov/programs/cse/pol/IM/2007/ im-07-03.htm. 46 Congressional Research Service 13 Child Support Enforcement: Tribal Programs they take are solely at the tribe’s discretion and are based on tribal policies, procedures, ordinances, and codes. Some of these enforcement remedies include several procedures that must be done collaboratively with states, such as federal income tax refund intercepts, bank levies, liens against non-reservation property, state hunting and fishing license suspensions, state fishing taxes, and passport denials. Some examples of innovative methods that tribes and tribal organizations use to encourage timely and consistent payment of child support include the following: (1) some non-paying noncustodial parents are required to explain to an Elders’ Panel why they are not supporting their children; (2) some tribes allow per capita payments53 to be intercepted to meet child support obligations; (3) tribes with casinos may be able to withhold past-due child support (i.e., child support arrearages) from the winnings of tribal members; (4) reservation fishing taxes; (5) reservation hunting and fishing license suspension; (6) gaming license suspension; and (7) in cases where a noncustodial parent has been unable to find a job and make child support payments, a tribe can request that the court or administrative agency mandate a course of action to improve the noncustodial parent’s employability (e.g., attending classes to obtain a certificate of general educational development or high school equivalent, undergoing alcohol or drug abuse treatment, undertaking a work search, attending trade classes).54 As noted above, with respect to child support enforcement/collection activities, tribes are only required to use the income withholding enforcement method. The income withholding requirements are similar to those requirements governing states’ CSE programs, except that income is subject to withholding once the noncustodial parent has failed to make a payment equal to the support payable for one month.55 Income withholding is not to be required in any case where either the custodial or noncustodial parent demonstrates, and the tribunal enters a finding, that there is good cause not to require income withholding; or where a signed written agreement is reached between the custodial and noncustodial parent that provides for an alternate agreement. The tribal CSE agency must allocate amounts withheld across multiple withholding orders, and in no case shall the allocation result in a withholding for one of the orders not being implemented. The tribal CSE agency is responsible for receiving and processing income withholding orders from states or other tribes and ensuring orders are promptly served on employers.56 Distribution of Child Support CSE regulations stipulate that tribes have the option to condition eligibility for Tribal TANF assistance on assignment of child support.57 A tribal CSE plan must outline procedures for distribution of child support collections. As a general rule, the tribal CSE agency must, in a timely 53 “Per capita payments,” in this context, are payments by a tribe to its individual members (e.g., from tribal trust property, gaming, or Indian claims awards). Such payments may also include Indian claims awards by the United States paid directly to individual members. 54 Office of Child Support Enforcement, “OCSE Training Courses for Tribal IV-D Programs—Enforcement Module,” http://www.acf.hhs.gov/programs/cse/resources/tribal/training/. 55 Delinquency-based income withholding was made obsolete for state CSE programs when P.L. 100-485 (the Family Support Act of 1988) established immediate income withholding. The Family Support Act of 1988 greatly expanded income withholding by requiring immediate withholding to begin in November 1990 for all new or modified orders being enforced by states. Equally important, states were required, with some exceptions, to implement immediate wage withholding in all support orders initially issued on or after January 1, 1994, regardless of whether a parent has applied for child support services. 56 Federal Register, vol. 69, no. 61, March 30, 2004, p. 16645. 57 45 C.F.R. §286.155, p. 200 (October 1, 2015 edition). Congressional Research Service 14 Child Support Enforcement: Tribal Programs manner, apply collections to satisfy current support obligations first, and pay all child support collections to the family unless the family is currently receiving or has formerly received assistance from the tribal TANF program and the state has opted to condition eligibility for tribal TANF assistance on assignment of child support rights,58 or the tribal CSE agency has received a request for assistance in collecting support on behalf of the family from a state or another tribal CSE agency. Such requests for assistance may be to collect child support assigned to the state or tribe as a condition of receiving TANF assistance or to provide CSE services on behalf of a family residing in or receiving services from the referring state or tribe. When support is owed to both states and tribes, the tribal CSE agency may either send collections to the requesting state or tribe for distribution or determine appropriate distribution by contacting the requesting state or tribe and distribute collections accordingly. Federal regulations with regard to tribal CSE programs stipulate that any child support collections obtained through the Federal Income Tax Refund Offset program must be applied to satisfy child support arrearages.59 State and Tribal Cooperation and Coordination Federal regulations require states to extend the full range of services available under their CSE plans to all tribal CSE programs.60 Prior to the 1996 law, although state CSE agencies had the resources to obtain child support on behalf of Native American children, they usually lacked jurisdiction over tribal members. In contrast, tribal courts often did not have the resources to obtain child support on behalf of tribal members. Federal law now addresses the issue of nonpayment of child support, in part, by authorizing states and tribes to enter into cooperative agreements to facilitate obtaining child support for Native American children. Realistically, in order to better serve Indian children, tribes must utilize the existing infrastructure of state CSE programs.61 Federal regulations authorize tribal CSE programs to enter into cooperative arrangements with states. Pursuant to the regulations, a tribe may delegate functions of the tribal CSE program to another tribe, a state, or another agency or entity pursuant to a cooperative arrangement, contract, or tribal resolution, but the tribal CSE agency retains ultimate responsibility for meeting the CSE plan requirements.62 Moreover, tribes may enter into agreements with any entity, including contracts with a private vendor, to carry out the functions required in the tribal CSE plan. Federal regulations make clear that tribes, not states, are to be held accountable for the proper operation of tribal CSE programs, including all actions undertaken on behalf of such programs. In other words, if the tribe or tribal organization delegates any of the functions of operating a CSE program to another tribe, state, or any other agency, the tribe is still responsible for compliance with the approved tribal CSE plan.63 Tribal cooperative agreements with state CSE agencies were part of the 1996 welfare reform law. Cooperative agreements under Section 454(33) of the Social Security Act are between a state CSE program and a tribe. The tribe performs agreed-upon activities and the state CSE program reimburses the tribe for these activities. These cooperative agreements are under a state CSE 58 Ibid. 45 C.F.R. §309.115, p. 324 (October 1, 2015 edition). 60 45 C.F.R. §302.36(a)(2), p. 235 (October 1, 2015 edition). 61 State CSE infrastructure includes the Federal and State Parent Locator Service, the National Directory of New Hires, state centralized units for the collection and distribution of child support payments (i.e., State Disbursement Units), and the array of state collection/enforcement methods. 62 45 C.F.R. §309.60(c), p. 319 (October 1, 2015 edition). 63 Federal Register, vol. 69, no. 61, March 30, 2004, p. 16651. 59 Congressional Research Service 15 Child Support Enforcement: Tribal Programs program and tribes must follow the state CSE program requirements within the scope of cooperative agreement responsibilities. The state is ultimately responsible for the operation of its CSE program and ensuring all requirements are met. However, if a tribal CSE program enters into a cooperative agreement with a state under Section 455(f) of the Social Security Act, for the state to perform a service for the tribe, the state must meet tribal CSE requirements applicable to the actions taken pursuant to the cooperative agreement. Under this type of cooperative agreement, the tribe is ultimately responsible for the operation of its CSE program and for ensuring that all tribal CSE program requirements are met.64 In addition to the formal cooperative agreements, some commentators contend that the best interests of Native American children could be better served if states would incorporate the following procedures into their interactions with tribes and tribal organizations: (1) to determine if someone is enrolled in a tribe, ask the person for his or her Certificate of Degree of Indian Blood (CDIB) card or verification of Tribal Membership card; (2) remember that each tribe is different, with its own laws; (3) find out what procedure(s) are required to register a state support order for enforcement with the tribe; (4) coordinate service of process in Indian country with the tribe (e.g., when personal service is required, tribal authorities are often the most appropriate individuals for serving state process on a reservation); (5) rely on state and tribal court clerks for information regarding pleadings, required forms, and filing deadlines and procedures; and (6) ascertain tribal court practices and procedures (e.g., an attorney’s authority/admission to practice law in a state court does not automatically mean that the attorney is admitted to practice in a tribal court in that state).65 Also, child support administrators generally agree that cooperation between tribes and states is enhanced when common goals can be identified and articulated and an open dialogue is maintained between the tribes and state CSE staff.66 Automated Systems With respect to the CSE program operated by states, there is widespread agreement that the achievement of CSE program goals depends in large part on the effective planning, design, and operation of automated systems. Automating CSE information systems generally improves caseworker productivity by allowing automatic searches of a variety of databases and eliminating the need for voluminous paper documentation. Automated CSE systems also help track court actions relating to paternity and support orders and amounts of collections and distributions. With respect to tribal CSE programs, many commentators and interested parties contend that automation is necessary for tribes and tribal organizations to accurately and efficiently process child support collections. These commentators argue that the costs for development of automated programs should be allowable expenditures for tribal CSE programs (i.e., tribal expenditures for development of data systems should be eligible to receive federal matching funds).67 64 Office of Child Support Enforcement, Action Transmittal (OCSE-AT-05-07), May 12, 2005. See State/Tribal Child Support Partnerships In Washington State, http://www.dshs.wa.gov/pdf/esa/dcs/tribal/ TribalPartnerships.pdf. See also U.S. Department of Justice, Tribal Judicial Institute, “Walking on Common Ground: Tribal-State-Federal Justice System Relationships,” December 2008. 66 See http://www.dshs.wa.gov/pdf/esa/dcs/tribal/GuidingPrinciplesCoop.pdf. Also see National Tribal Child Support Association, “Tribal Child Support Program: Information and Resource Guide,” by Gloria Howard (Puyallup Tribal Child Support Program) and Tami J. Lorbecke (Keweenaw Bay Indian Community Office of Child Support Services), updated May 2009. 67 Federal Register, vol. 73, no. 113, Computerized Tribal IV-D Systems and Office Automation—Notice of Proposed Rule Making, June 11, 2008, p. 33049. 65 Congressional Research Service 16 Child Support Enforcement: Tribal Programs Before the final regulations (released February 25, 2010) on tribal CSE automated systems, development of automated data processing systems was not an allowable activity or expenditure for comprehensive tribal CSE programs. They were generally only permitted to receive federal funding for costs associated with the establishment of intergovernmental agreements with states and tribes for the use of an existing automated data processing computer system necessary to support tribal CSE program operations.68 In contrast, the recently released final regulations regarding computerized tribal CSE systems expand allowable activities and costs incurred by comprehensive tribal CSE programs with regard to automated data processing computer systems to include the installation, operation, maintenance, and enhancement of a model tribal system that is described in the regulations.69 Comprehensive tribal CSE programs that are operating within the first three-year period of federal funding are reimbursed for 90% of the cost of their automated systems expenditures. Comprehensive tribal CSE programs operating after the initial three-year period are reimbursed for 80% of their automated systems expenditures. Automated systems have, to a certain extent, reduced barriers that were often faced by some tribes who were geographically isolated from access to certain state or county CSE services. Concomitantly, an administrative structure that depends primarily on automation might be at odds with the types of flexible, face-to-face assistance that are often successful on Indian reservations. Funding Federal funding is based on the tribal CSE application, which includes the proposed budget and a description of the nature and scope of the tribal CSE program and gives assurance that the program will be administered in conformity with applicable requirements of the CSE program (Title IV-D of the Social Security Act), federal regulations, and other official issuances of HHS that specifically apply to tribes and tribal organizations. A tribe or tribal organization may apply for federal funding in one of two ways. A tribe or tribal organization may apply to operate a CSE program that meets all of the 14 mandated requirements (as specified in federal regulations) for a tribal CSE program. 70 If the tribe or tribal organization can apply on this basis, it is considered a comprehensive tribal CSE program if it is approved by the HHS Secretary. If a tribe or tribal organization does not currently meet the regulatory requirements, it may apply for start-up funding. A tribe or tribal organization that applies on this basis (and has such a plan approved) is considered to be operating a tribal CSE start-up program.71 Unlike state CSE programs that are funded by both state and matching federal dollars, tribal CSE programs that are designated as start-up programs can be funded solely by federal dollars. Tribal CSE programs that are considered fully operational (i.e., comprehensive programs) are funded at 90% of total program expenditures for the first three years of the program, and at 80% 68 Before the final regulations (February 25, 2010), tribal CSE programs generally managed and tracked their child support cases manually or contracted with the state to use their automated CSE system (45 C.F.R. §309.145(h)). 69 Federal Register, vol. 75, no. 37, February 25, 2010, p. 8508. 70 According to OCSE officials, although nine tribes began operating CSE programs after the 1996 legislation (P.L. 104-193) and before the final regulations on tribal CSE programs were published, those nine tribes had to reapply for direct CSE funding once the final regulations were issued. 71 Office of Child Support Enforcement, Information Memorandum (IM-05-06), “Building a Tribal IV-D Program: A Guide to the Start-Up Application Process,” June 22, 2005, http://www.acf.hhs.gov/programs/cse/pol/IM/2005/im-0506.htm. Congressional Research Service 17 Child Support Enforcement: Tribal Programs thereafter.72 The non-federal share of CSE program expenditures may be in cash and/or in-kind, fairly valued, by the tribe or tribal organization and/or by a third party. Both state and comprehensive tribal CSE programs are considered entitlement programs and they both receive mandatory funding on an open-ended basis (meaning that they receive federal matching funding for all reasonable, necessary, and allocable expenditures on the CSE program). Federal funds are available for the costs associated with operating a tribal CSE program that has been approved by the HHS Secretary, provided that the Secretary determines that such costs are reasonable, necessary, and allocable to the tribal CSE program.73 Federal regulations provide a list of the kinds of activities and costs that can receive federal reimbursement. Federal regulations also stipulate that tribal CSE program funds may not be used for (1) activities related to administering other programs, including those under the Social Security Act; (2) construction and major renovations; (3) any expenditures that have been reimbursed by fees or costs collected, including any fee collected from a state; (4) expenditures for jailing of parents in tribal CSE cases; (5) the cost of legal counsel for indigent defendants in tribal CSE program actions; (6) the cost of guardians ad litem in tribal CSE cases; and (7) all other costs that are not reasonable, necessary, and allocable to tribal CSE programs.74 Start-Up Programs As mentioned earlier, federal law and regulations permit tribes or tribal organizations that cannot satisfy all of the 14 mandatory provisions but that can demonstrate their ability to operate a CSE program to request start-up funding. Start-up funding is for tribes to develop a CSE program that will allow them to meet all the regulation requirements of a comprehensive child support program. Allowable start-up costs and activities include planning for the initial development and implementation of a program; developing tribal CSE laws, codes, guidelines, systems, and procedures; recruiting, hiring, and training tribal CSE program staff; and any other reasonable costs.75 During the period of start-up funding, a tribe or tribal organization will receive federal funds equal to 100% (subject to a capped amount) of the approved and allowable CSE expenditures made during that period.76 Tribes and tribal organizations that receive start-up funding do not have to put up non-federal matching funds for their CSE programs. Federal funds are available 72 Federal funding of tribal CSE programs differs significantly from state CSE programs. The federal government reimburses each state for 66% of the cost of operating its CSE program. In addition, the federal government pays states an incentive payment to encourage them to operate effective programs. For additional information on the financing of state CSE programs, see CRS Report RL33422, Analysis of Federal-State Financing of the Child Support Enforcement Program, by (name redacted ) . 73 After enactment of the 1996 legislation that provided direct funding for tribes and before the final regulations on tribal CSE programs were issued in 2004, OCSE gave tribes Special Improvement Project (SIP) grants to operate their tribal CSE programs. The purpose of the SIP grant program is to provide funding for projects that further the national child support mission and goals and to help improve program performance. SIP’s legislative authority is Section 452(j) of the Social Security Act, and it provides federal funds for research and demonstration programs and special projects of regional or national significance relating to the operation of state child support enforcement programs. No applicant match is required. Eligible applicants include state and local public agencies, nonprofit agencies (including faith-based organizations), and tribal organizations. 74 45 C.F.R. §309.155, p. 331 (October 1, 2015 edition). 75 Federal Register, vol. 69, no. 61, March 30, 2004, p. 16647. 76 Pursuant to federal regulations (45 C.F.R. §309.16), tribal CSE start-up programs must have the capability to meet all 14 components of a comprehensive tribal CSE program within a reasonable period of time, not to exceed two years. In other words, a tribal CSE start-up program can potentially receive 100% federal matching for up to two years. Congressional Research Service 18 Child Support Enforcement: Tribal Programs for the costs of developing a tribal CSE program that meets federal requirements, provided that such costs are reasonable, necessary, and can be allocated to the program.77 For start-up tribal CSE programs, 100% federal funding is limited to $500,000, and there is no tribal match required.78 Start-up funding must be obligated and liquidated within two years of the date in which the start-up application was approved. Comprehensive Programs Tribes or tribal organizations that can meet all of the 14 mandatory provisions (such programs are considered comprehensive or fully operating programs) receive 90% federal funding during the first three years of full program operation. The tribe or tribal organization must provide a 10% tribal match in order to receive the federal funding.79 After the initial three-year period of operating a comprehensive tribal CSE program, the tribe or tribal organization will receive 80% federal funding each year thereafter for their tribal CSE program if the tribe continues to meet federal requirements. The tribe or tribal organizations must provide a 20% tribal match in order to receive the federal funding.80 Financing Mechanics In order to receive federal funding, a tribal CSE agency must submit the following budgetary information: a quarter-by-quarter estimate of CSE expenditures for the fiscal year; notification of whether the tribe or tribal organization is requesting funds for indirect costs; a narrative justification for each of the required elements of the program (that are listed on the application form—start-up program may not include all of the 14 mandatory components); and either a statement certifying that the tribe or tribal organization has or will have the non-federal share of program expenditures available, as required, or a request for a waiver of the non-federal share.81 Unlike the state CSE program, which is funded on a prospective quarterly basis, tribal CSE programs that qualify for funding of less than $1 million per 12-month period receive a single annual award of the total amount. However, tribal CSE programs with funding of $1 million or more per 12-month period will receive quarterly awards similar to state CSE programs. OCSE documents indicate that the funding for tribal CSE activities is completely separate from funding for state CSE programs. A tribe’s decision to run its own CSE program does not impact a state’s CSE program funds. This means that tribal CSE funding is not apportioned from a state’s CSE funding. However, funds for the tribal CSE programs come from the same appropriation as the state CSE program.82 77 Tribal CSE funds may not be used for activities related to administering other programs, including those under the Social Security Act; construction or major renovations; expenditures that have been reimbursed by fees collected, including any fee collected from a state; jailing of parents in tribal CSE cases; the cost of legal counsel for defendants in tribal CSE actions; or any other costs that are not reasonable, necessary, and allocable to the tribal CSE program. 78 Federal funding for tribal CSE program development generally may not exceed a total of $500,000 except in very unusual or extraordinary circumstances. According to federal regulations (45 C.F.R. §309.16), “in extraordinary circumstances, the Secretary will consider a request to extend the period of time during which start-up funding will be available and/or to increase the amount of start-up funding provided.” 79 45 C.F.R. §309.130, p. 325 (October 1, 2015 edition). 80 Ibid. 81 45 C.F.R. §309.15, p. 315 (October 1, 2015 edition). 82 Federal Register, vol. 69, no. 61, March 30, 2004, p. 16667. Congressional Research Service 19 Child Support Enforcement: Tribal Programs Data This section presents data on the number of Native Americans living in the United States, tribal population estimates, the percentage of Native American women who had children outside of marriage, living arrangements of Native American children, and the percentage of Native Americans with child support orders. It also provides statistical information on tribal CSE programs. Data Problems Although the data are useful in developing an understanding of tribal CSE programs, there are several problems associated with the data. First, population data for federally recognized Indian tribes are elusive. No federal entity performs a census of members of federally recognized tribes such as the Census Bureau does for the U.S. population, so there are no detailed demographic or socioeconomic data on tribal members alone. All Census Bureau data on American Indians and Alaska Natives (AIAN) are based on race, not tribal membership. The Census Bureau’s decennial census and other surveys ask respondents to identify themselves by race, not by confirmed membership in a federally recognized tribe.83 Not all persons self-identifying as AIAN are members of federally recognized tribes, and it may be that not all tribal members identify themselves as AIAN on the Census form. The decennial census does collect information by Indian reservation or other Census-developed statistical area, for almost all federally recognized tribes, so it can report AIAN race data (even if it cannot report membership) for a tribe’s reservation or other statistical area. These reservation-specific AIAN decennial data may serve as proxies for actual tribal data. However, Census Bureau data collected through non-decennial sample surveys, such as the American Community Survey (ACS) or the Current Population Survey (CPS), cannot yet be used for the great majority of Indian areas because the Indian areas’ populations are too small.84 The Bureau of Indian Affairs (BIA) publishes biennial estimates of its own service population— defined as AIAN living on or near a reservation and eligible for BIA services—based on figures received from federally recognized tribes. The BIA asks tribes to survey and provide estimates on their members, but does not require a tribe to carry out a census to prepare these figures.85 The BIA report also lists tribal enrollment totals, as reported by the tribes, but the BIA does not conduct censuses to confirm these figures. The report does not provide tribal enrollees’ geographic, demographic, or socioeconomic data, so it cannot show where enrollees are living or their age or other characteristics. (See Table C-1 in Appendix C for population figures from differing Census and BIA sources for CSE tribes and the nation.) Another problem is that the tribal CSE program data include missing data related to implementation issues. It is also important to note that this report does not try to analyze the impact of factors such as size of tribe, wealth or poverty status of tribe, source of resources, 83 In the race question, the Census Bureau allows respondents to identify their tribe—still self-identification—but does not confirm a respondent’s enrollment (or eligibility to be enrolled) in the tribe named. Hence, Census data on selfreported tribes cannot be assumed to correspond to data on federally recognized tribes. 84 For ACS, see U.S. Census Bureau, “2008 American Community Survey: Overview of Census Geographic Areas in the United States and Puerto Rico,” Table 1a, p. 2, http://www.census.gov/acs/www/Downloads/ 2008_geography_notes.pdf. For CPS, see U.S. Census Bureau, Current Population Survey Design and Methodology, Technical Paper 66, October 2006, pp. 21-22, http://www.census.gov/prod/2006pubs/tp-66.pdf. 85 U.S. Department of the Interior, Bureau of Indian Affairs, 2005 American Indian Population and Labor Force Report Washington, DC, pp. v-viii, http://www.bia.gov/idc/groups/public/documents/text/idc-001719.pdf. Congressional Research Service 20 Child Support Enforcement: Tribal Programs employment opportunities, or administrative structures (courts, administering agencies, etc.) on the effectiveness of tribal CSE programs. Demographic Information86 In 2010, the Census Bureau estimated that there were about 5.2 million persons who were AIAN, either alone or in combination with other races. The number of these individuals who reported AIAN as their only race amounted to 2.9 million persons, or about 0.9% of the U.S. population, in 2010.87 In 2010, 30% of persons classified as AIAN alone were under age 18.88 As the discussion above indicated, these AIAN population figures are based on race, not on tribal membership; see Appendix C for other figures for the tribal population, for both the nation and each CSE tribe. In 2010, about 66% of AIAN babies were born to unmarried mothers, compared with 17% of Asian or Pacific Islander babies, 29% of white babies, 53% of Hispanic babies, and almost 73% of black babies.89 In 2010, 52% of AIAN children were living in single-parent families, compared with 16% of Asian or Pacific Islander children, 24% of white children, 41% of Hispanic children, and 66% of black children.90 A special OCSE study that examined the Child Support Awards Among Custodial CSE program with respect to minority Mothers, by Race and Ethnicity families by analyzing pooled Census (Pooled Data) Bureau data from 1994 through 2002 found that, among custodial mothers, 51% of Percent Who AIAN mothers had child support orders, Percent with Actually Child Support Received Some compared with 66% of white mothers, 46% Orders Child Support of Asian mothers, 43% of black mothers, and 42% of Hispanic mothers. Although White 66% 78% AIAN mothers fared better than other minority mothers in terms of having child Black 43% 62% support orders, the rate at which Asian 46% 68% noncustodial parents complied with those orders was lower for AIAN mothers than AIAN 51% 67% for many of their minority counterparts. For AIAN mothers who had a child support Hispanic 42% 70% order, 67% received some child support, compared with 78% of white mothers, 70% of Hispanic mothers, 68% of Asian mothers, and 62% of black mothers.91 86 Census Bureau data in this section are based on race. U.S. Census Bureau, The American Indian and Alaska Native Population: 2010, by Tina Norris, Paula L. Vines, and Elizabeth M. Hoeffel, 2010 Census Briefs, C2010BR-10, January 2012, p. 4 and p. 17. 88 In 2010, 23% of whites were under age 18, as were 23% of Asians, 28% of African-Americans, 30% of Pacific Islanders, and 34% of Hispanics. (Source: U.S. Census Bureau, The 2012 Statistical Abstract: The National Data Book, p. 16.) 89 U.S. Department of Health and Human Services, National Center for Health Statistics, “Births: Preliminary Data for 2010,” by Brady E. Hamilton, Joyce A. Martin, and Stephanie J. Ventura, National Vital Statistics Reports, vol. 60, no. 2, November 2011, Table 1. 90 Annie E. Casey Foundation, Kids Count Data Center, Data for 2010, http://datacenter.kidscount.org/data/ acrossstates/Rankings.aspx?ind=107. 87 Congressional Research Service 21 Child Support Enforcement: Tribal Programs CSE Tribal Information Below are two tables that highlight some of the financial and statistical data on tribal CSE programs (in the aggregate and individually) provided by tribes and tribal organizations to the federal OCSE. It is probably unwise to draw conclusions from the data because the complexity of individual tribal CSE programs is overly simplified by the summary statistics shown in the tables, there are wide differences among program indicators in tribal CSE programs, and the tribal CSE programs have been operating for only a relatively short time. Moreover, unlike state CSE programs, tribal CSE programs do not have the benefit of federal auditors who assess the completeness and reliability of tribe-reported data.92 The data in Table 2 and Table 3 are based on information from tribes and tribal organizations on their tribal CSE programs. Just as the state CSE data do not include child support cases heard within the legal or administrative systems of tribes or tribal organizations, tribal CSE program information does not include data on cases that were not processed through the tribal CSE program. This means that tribal CSE program data do not include state CSE data or information on cases connected with the other 505 federally recognized tribal governments. Table 2 presents a summary of tribal CSE program data for the seven-year period from FY2004 through FY2011 and for FY2014.93 The table only provides information on comprehensive tribal CSE programs. During the years FY2001-FY2006, there were nine comprehensive tribal CSE programs; in FY2007, there were 12 comprehensive tribal CSE programs; in FY2008, there were 25 comprehensive tribal CSE programs; in FY2009, there were 36 comprehensive tribal CSE programs; in FY2010, there were 38 comprehensive tribal CSE programs; in FY2011, there were 41 comprehensive tribal CSE programs; in FY2012, there were 45 comprehensive tribal CSE programs; in FY2013, there were 51 comprehensive tribal CSE programs; and in FY2014, there were 57 comprehensive tribal CSE programs (see Table B-1). Child support payments collected by tribes or tribal organizations increased from $14.5 million in FY2004 to $47.3 million in FY2014 (an increase of 196% between FY2004 and FY2014). The number of children whose paternity was established (or acknowledged) via the tribal CSE program increased by 150%, from 13,746 in FY2004 to 34,413 in FY2014.94 The number of child support orders/obligations established increased by 246%, from 9,767 in FY2004 to 33,834 in FY2014. Tribal CSE program expenditures also increased substantially, from $9.1 million in FY2004 to $41.7 million in (...continued) 91 Department of Health and Human Services, Office of Child Support Enforcement, “Minority Families and Child Support: Data Analysis,” December 2007, pp. 3-4, http://www.acf.hhs.gov/programs/cse/pol/DCL/2007/dcl-0743a.pdf. 92 Pursuant to P.L. 105-200, states are accountable for providing reliable data on a timely basis or they receive no CSE incentive payments. (In addition to the 66% federal matching rate for state expenditures on child support activities, the federal government provides states with an incentive payment—based in part on five program performance measures— to encourage them to operate effective CSE programs.) The federal Office of Child Support Enforcement (OCSE) Office of Audit performs data reliability audits to evaluate the completeness, accuracy, security, and reliability of data reported and produced by state reporting systems. The audits help ensure that incentives under the Child Support Performance and Incentives Act of 1998 (P.L. 105-200) are earned and paid only on the basis of verifiable data and that the incentive payments system is fair and equitable. If an audit determines that a state’s data are not complete and reliable for a given performance measure, the state receives zero payments for that measure. 93 FY2004 represents the first year for which complete tribal CSE data are available and FY2014 represents the most recent data available. For more information, see footnote 95. 94 Legally identifying child’s father is a prerequisite for obtaining a child support order. If there is no child support order, there is no legal financial obligation. Congressional Research Service 22 Child Support Enforcement: Tribal Programs FY2014 (a 357% increase). However, during that same period, the tribal CSE program caseload only increased 83%, from 27,750 cases in FY2004 to 50,892 cases in FY2014.95 Table 2 also shows that during the period FY2004-FY2014, the tribal CSE program increased the amount it collected on current child support obligations by about 136%, from $12.9 million in FY2004 to $30.4 million in FY2014. During that same period, the tribal CSE program substantially increased the amount it collected on past-due child support obligations by 606%, from $1.7 million to almost $12.3 million. Nonetheless, in FY2014, $268.5 million in child support obligations was owed to families receiving tribal CSE services, but only $42.7 million was paid.96 This means that in FY2014, the tribal CSE program only collected 16% of the child support obligations for which it had responsibility.97 If current child support collections are examined separately, Table 2 indicates that the tribal CSE program collected 48% of all current obligations in FY2014.98 If collections on past-due child support obligations (i.e., arrearages) are examined separately, Table 2 indicates that the tribal CSE program only collected 6% of child support arrearage payments in FY2014. The tribal CSE program closely parallels the state CSE program in its inability to collect a substantial portion of past-due child support obligations (i.e., child support arrearages).99 If child support is not paid in the month in which it is due it is considered past-due child support. Thus, the past-due child support shown in the table for FY2014 could be from FY2014 or any of the prior years. In other words, the past-due child support shown for FY2014 could have accrued in any of the years shown in the table or even in earlier years. This means that much of the child support arrearages that are currently part of the tribal CSE program could have been transferred from a state CSE program to the tribal CSE 95 See the FY2007 OCSE Annual Report to Congress for summary Tribal CSE data for FY2004 through FY2007 (Table 89) and the FY2011 OCSE Annual Report to Congress for summary Tribal CSE data for FY2007 through FY2011 (Table 102). The Office of Child Support Enforcement redesigned the FY2012 Annual Report to Congress, since then summary tables that display program statistics for tribes and tribal organizations as a group are no longer available. Instead, the statistical information for each individual tribe and tribal organization must be summed together. The FY2014 data are from the OCSE FY2014 Annual Report to Congress (Tribal Performance). For FY2012 tribal performance data, see OCSE FY2012 Annual Report to Congress (http://www.acf.hhs.gov/programs/css/resource/ fy2012-annual-report-to-congress). For FY2013 tribal performance data, see OCSE FY2013 Annual report to Congress (http://www.acf.hhs.gov/programs/css/resource/fy2013-annual-report-to-congress). 96 The $42.7 million figure is substantially larger than the $36.5 million mentioned earlier and shown in the first row of Table 2 as distributed child support collections. These data come from two different sources (forms OCSE34A and OCSE75), which have different reporting criteria instructions. Other reasons for the difference could include the following factors: (1) child support forwarded to states is not included in the distributed tribal child support amount, (2) voluntary child support payments that were not part of a legally established child support order are not included in the distributed amount, and (3) interest payments and penalty payments on past-due child support (i.e., arrearages) are not included in the distributed amount. 97 In FY2014, $63.5 million in current support and $205.0 million in past-due support was owed to families receiving tribal CSE services, but only $30.4 million in current support and $12.3 million in past-due support was actually paid to families. 98 In its first year of full implementation (FY2004), the tribal CSE program collected more current child support obligations than were currently due. It collected $12.9 million in current child support obligations in FY2004 when only $9.1 million in current child support obligations were actually owed. If these data are accurate, it would indicate that noncustodial parents in the tribal CSE program paid 42% more than they were actually required to pay. CSE administrators have suggested that there probably were some reporting errors in FY2004. 99 For state CSE programs, in FY2014, $148.6 billion in child support obligations ($33.8 billion in current support and $114.8 billion in past-due support) was owed to families receiving CSE services, but only $29.3 billion was paid ($21.7 billion current, $7.6 billion past-due). In FY2014, the federal/ state CSE program collected only 20% of child support obligations for which it had responsibility. If current child support collections are examined separately, the state CSE programs collected about 64% of all current obligations in FY2014. If child support arrearages are examined separately, the state CSE programs collected about 7% of child support arrearage payments in FY2014. Congressional Research Service 23 Child Support Enforcement: Tribal Programs program. Indeed, Table 2 shows that in FY2004 (the first year in which comprehensive data are available) child support arrearages were already at nearly $50 million. The last row of Table 2 shows a measure of CSE program effectiveness, obtained by dividing total tribal CSE collections by total tribal CSE expenditures (costs). This measure is sometimes referred to as the collections-to-costs ratio. The table shows that in FY2014, $0.87 was collected from noncustodial parents for the financial support of their children for each dollar spent on tribal CSE programs.100 100 With regard to state CSE programs, in FY2014, $4.96 was collected from noncustodial parents for the financial support of their children for each dollar spent on state CSE programs. Congressional Research Service 24 Table 2. Tribal CSE Program Financial and Statistical Data, FY2004-FY2011, and FY2014 Percentage Change, FY2004FY2014 2004 2005 2006 2007 2008 2009 2010 2011 2014 Distributed Child Support Collectionsa $12,327,444 $10,750,329 $12,885,776 $15,663,985 $19,873,555 $19,995,803 $29,225,754 $34,079,158 $36,484,842 196.0% Collections Forwarded to States $2,161,323 $1,823,836 $1,987,837 $2,169,604 $3,324,766 $5,575,833 $5,267,850 $5,913,502 $10,800,286 399.7% Total Collections $14,488,767 $12,574,165 $14,873,613 $17,833,589 $23,198,321 $25,571,636 $34,493,604 $39,992,660 $47,285,028 226.4% Expenditures $9,129,785 $9,427,218 $12,087,361 $13,478,997 $17,819,053 $26,172,089 $29,224,592 $30,886,548 $41,744,837 357.2% Child Support Caseload 27,750 24,650 25,898 27,184 29,350 36,217 39,578 43,084 50,892 83.4% Child Support Orders 9,767 8,162 9,128 12,567 14,414 17,714 22,567 26,729 34,413 246.4% Paternity Established or Acknowledged 13,746 12,245 13,787 15,087 18,465 19,968 27,464 27,538 33,834 150.3% Current Child Support Due $9,145,632 $19,227,881 $21,708,165 $24,288,673 $28,121,641 $37,864,240 $40,641,149 $45,972,563 $63,506,256 594.4% Current Child Support Collected and Distributedb $12,892,936 $8,575,632 $9,664,579 $11,611,269 $16,144,883 $17,736267 $19,707,714 $27,501,826 $30,413,186 135.9% Past-Due Child Support Owed $49,876,837 $122,987,564 $310,145,753 $138,658,867 $150,974,343 $193,133,808 $182,893,770 $203,213,508 $204,991,610 311.0% CRS-25 Past-Due Child Support Collected and Distributedb Total Collections Per Dollar of Expenditures Percentage Change, FY2004FY2014 2004 2005 2006 2007 2008 2009 2010 2011 2014 $1,736,722 $4,833,116 $4,603,739 $6,321,819 $10,358,264 $8,032,237 $9,216,570 $9,136,525 $12,260,500 606.0% $1.59 $1.33 $1.23 $1.32 $1.30 $0.98 $1.18 $1.29 $0.87 -45.3% Source: Congressional Research Service, based on data from the Office of Child Support Enforcement (OCSE), Department of Health and Human Services. Notes: See the FY2007 OCSE Annual Report to Congress for summary Tribal CSE data for FY2004 through FY2007 (Table 89) and the FY2011OCSE Annual Report to Congress for summary Tribal CSE data for FY2007 through FY2011 (Table 102). The Office of Child Support Enforcement redesigned the FY2012 Annual Report to Congress, since then summary tables that display program statistics for tribes and tribal organizations as a group are no longer available. Instead, the statistical information for each individual tribe and tribal organization must be summed together. The FY2014 data are from the OCSE FY2014 Annual Report to Congress (Tribal Performance). Figures for “Collections Per Dollar of Expenditures” (i.e., the last row of the table) were obtained by dividing total collections (shown in the third row) by expenditures. N.A.—not available. a. This figure is smaller than the sum of the figures labeled “Current Child Support Collected and Distributed” and “ Past-Due Child Support Collected and Distributed” primarily because the figures are taken from two different reporting forms that have different reporting criteria instructions. (This figure comes from form OCSE34A and the other figures mentioned come from form OCSE75.) b. Some of this amount may have been owed to the custodial parent when the state-based cases were transferred to the tribe. CRS-26 Child Support Enforcement: Tribal Programs Figure 2 shows the amount of child support collected by the tribal CSE program for the period FY2004-FY2011 and for FY2014. It also shows the amount of expenditures associated with the tribal CSE program. As mentioned earlier, one measure of a program’s cost-effectiveness is often portrayed as the relationship of benefits to costs. As shown in Table 2, in FY2004, the tribal CSE program collected $1.59 for each dollar that it spent. The collections-to-expenditures rate fluctuated throughout the 11-year period. In FY2014, it reached a low of $0.87. A reason for this might be that tribal CSE programs that are just getting underway are included in the data calculations. Another reason might be that the data may be inconsistent and/or unreliable across tribes. Figure 2.Tribal CSE Program: Collections and Expenditures, FY2004-FY2011 and FY2014 $50,000,000 $45,000,000 $40,000,000 $35,000,000 $30,000,000 Total Collections $25,000,000 Expenditures $20,000,000 $15,000,000 $10,000,000 $5,000,000 $0 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 2014 Source: Congressional Research Service, based on data from the Office of Child Support Enforcement, Department of Health and Human Services. Note: The Office of Child Support Enforcement redesigned the FY2012 Annual Report to Congress, since then summary tables that display program statistics for tribes and tribal organizations as a group are no longer available. Instead, the statistical information for each individual tribe and tribal organization must be summed together. Thus, data for FY2012 and FY2013 are not readily available and are not shown in this figure. The data also show that expenditures per case in the tribal CSE program grew over the 11-year period FY2004-FY2014. Expenditures per case increased by 149% during that period, from $329 in FY2004 to nearly $820 in FY2014 (see Table 3). Collections per case also increased during the period, but not as much. Collections per case increased by 78%, from $522 in FY2004 to Congressional Research Service 27 Child Support Enforcement: Tribal Programs $929 in FY2014.101 As mentioned earlier, tribal CSE cases increased by 83% over the FY2004FY2014 period. Although the two measures, expenditures per case and collections per case (see Table 3), help illuminate the tribal CSE program, they are only averages and do not accurately reflect what individual families receive. As noted earlier, Census Bureau data pertaining to child support receipt do disaggregate by race, but AIAN are included in the “other race” category. OCSE data do not provide information on actual cases with collections for the tribal CSE program. Nevertheless, it is known that about $226 million of child support owed to tribal members went unpaid in FY2014, which is 84% of the amount of money that the tribes and tribal organizations were supposed to collect on behalf of Native American children. Table 3. Tribal CSE Program, Expenditures and Collections Per Case, FY2004-FY2010, and FY2014 Collections/Caseload Expenditures/Caseload 2004 $522.12 $329.00 2005 $510.11 $382.44 2006 $574.32 $466.73 2007 $656.03 $495.84 2008 $790.40 $607.12 2009 $690.99 $736.19 2010 $812.23 $806.64 2014 $929.12 $820.26 Source: Congressional Research Service, based on data from the Office of Child Support Enforcement, Department of Health and Human Services. Table 4 and Table A-6 show that there were wide differences among the tribes in how much child support was collected for each dollar spent on the tribal CSE program, ranging from 0 (zero) cents in the Blackfeet Nation tribe to $2.37 in the Forest County Potawatomi tribe.102 Table 4 presents tribal CSE program data by tribe (for the 57 comprehensive tribal CSE programs) for FY2014. It shows tribal CSE collections (distributed), expenditures, and caseload data. It also displays the number of paternities and child support orders established by the tribe or tribal organization, and the collections-to-expenditures ratio for each tribe or tribal organization. The table indicates that the Navajo Nation ranked highest in five of the six categories shown. The Navajo Nation collected the most child support payments, had the highest child support expenditures, had the largest child support caseload, and established the most paternities and child support orders. The Navajo Nation was one of the first tribes to receive direct federal CSE funding. It has had a comprehensive CSE program since FY2002. The Forest County Potawatomi tribe had the best collections-to-expenditures ratio in FY2014, about two times higher than the average ($0.87) for all tribes. The Forest County Potawatomi tribe has had a comprehensive CSE 101 The “expenditures per case” data were obtained by dividing the child support expenditures (displayed in Table 2) by the child support caseload (also displayed in Table 2). The “collections per case” data were obtained by dividing the total child support collections (displayed in the third row of Table 2) by the child support caseload. 102 As noted in Table 2, the average amount collected for each $1 spent for all of the tribes with CSE programs was $0.87 in FY2014. Congressional Research Service 28 Child Support Enforcement: Tribal Programs program since FY2003 (one year after the Navajo Nation). See Tables A-1 through A-6 in Appendix A for a ranking of the tribes and tribal organizations with respect to each of the six program/performance indicators. The Navajo Nation is the largest Indian tribe in the United States, with about 14% of the U.S. tribal enrollment. Although the Navajo Nation is not among the wealthiest tribes per capita, it appears to have a very effective CSE administrative structure. In contrast, the Forest County Potawatomi tribe is a much smaller tribe but appears to be relatively wealthy103 and seems also to have an effective CSE administration. (See Table C-1 for enrollment and population data on these tribes.) Table 4. Tribal CSE Summary Data by Tribe, FY2014 Distributed Collections Expenditures Alabama-Coushatta Caseload Paternities Established Orders Established Collections/ Expendituresa N.A. 196,510 N.A. N.A. N.A. N.A. Aleutian/Pribilof $3,403 $539,576 16 2 13 $0.01 Blackfeet Nation 1,500 554,567 408 8 169 0.00 Cherokee Nation 2,965,747 2,101,713 1,665 26 1,580 1.41 Chickasaw Nation 2,861,520 2,535,678 1,572 1,175 1,461 1.13 Chippewa Cree (Rocky Boys Res.) 57,966 652,350 391 13 138 0.09 Coeur ‘D Alene 180,183 801,269 247 6 247 0.22 Comanche Nation 474,725 518,691 450 2 N.A. 0.92 Confederate Tribe Of Colville 243,692 1,025,933 2,003 11 1,225 0.24 Eastern Band of Cherokee 2,948,972 1,336,632 1,218 1,104 1,006 2.21 Eastern Shoshone 98,800 596,071 403 31 175 0.17 Forest County Potawatomi 2,240,252 946,451 626 607 605 2.37 Fort Belknap 28,386 623,459 401 8 97 0.05 176,187 171 95 153 - Ho-Chunk Nation Kaw Nation 308,542 429,301 150 6 139 0.72 Keweenaw Bay 83,549 215,616 135 74 93 0.39 Kickapoo (Kansas) 106,700 375,031 194 90 167 0.28 Kickapoo (Oklahoma) 81,762 414,556 113 18 75 0.20 Klamath 7,847 399,296 462 477 222 0.02 Lac Courte Oreilles 94,459 850,560 365 282 252 0.11 103 Indian gaming has greatly enhanced the economic development of the Forest County Potawatomi Community. The Forest County Potawatomi government is now able to provide employment, for both tribal and non-tribal people in the tribal offices, tribal businesses, and casinos, and is currently the largest employer in Forest County, WI (see http://www.fcpotawatomi.com/index.php/Treaties/history-overview.html). Congressional Research Service 29 Child Support Enforcement: Tribal Programs Distributed Collections Expenditures Caseload Paternities Established Orders Established Collections/ Expendituresa Lac Du Flambeau 702,454 372,583 1,207 611 1,207 1.89 Leech Lake Band 104,338 282,034 619 879 609 0.37 Lummi Nation 398,789 1,115,150 587 15 439 0.36 Menominee 1,603,454 770,653 1,783 1,576 1,701 2.08 Mescalero Apache 304,794 531,675 518 24 379 0.57 Mille Lacs Band 542,240 496,189 1,600 5 1,524 1.09 Modoc 1,774,978 1,873,650 1,181 1,182 989 0.95 Muscogee Creek Nation 1,416,094 2,132,179 1,339 981 1,079 0.66 Navajo Nation 8,864,498 3,965,043 14,984 16,253 6,949 2.24 Nez Perce 50,929 N.A. 349 10 336 N.A. Nooksack 62,953 903,545 292 231 242 0.07 Northern Arapaho 214,797 971,098 2,148 23 1,265 0.22 Oneida Nation 2,168,647 1,345,215 2,872 1,838 2,528 1.61 Osage Nation 619,674 570,023 383 15 237 1.09 Penobscot Nation 41,939 671,161 22 N.A. 22 0.06 Ponca 123,557 542,221 107 116 94 0.23 Port Gamble S’klallam 138,113 846,924 446 285 326 0.16 Prarie Band Potawatomi Nation 298,249 361,363 197 3 149 0.83 Pueblo Of Zuni 257,128 176,578 42 8 42 1.46 Puyallup 97,241 1,238,899 1,022 362 634 0.08 Quinault Nation 207,587 593,726 884 7 879 0.35 Red Cliff Band of Lake Superior Chippewa N.A. N.A. N.A. N.A. N.A. N.A. Red Lake Band 218,677 89,759 1,039 937 770 0.56 Sac & Fox Tribe of the Mississippi in Iowa N.A. 57,953 N.A. N.A. N.A. N.A. Saint Regis Mohawk 400 N.A. 3 N.A. 3 N.A. Salish and Kootenai 135,490 395,146 355 142 327 0.34 Sisseton Wahpeton 467,137 920,324 1,520 40 827 0.51 Standing Rock Sioux 83,031 631,828 102 1 79 0.13 Stockbridge-Munsee 302 N.A. 8 1 2 N.A. Suquamish 48,654 381,811 158 2 149 0.13 Three Affiliated 708,743 798,164 N.A. N.A. N.A. 0.89 Congressional Research Service 30 Child Support Enforcement: Tribal Programs Distributed Collections Expenditures Caseload Paternities Established Orders Established Collections/ Expendituresa Tlingit and Haida 666,792 784,778 1,243 1,464 1,034 0.85 Tulalip 864,862 853,529 1,433 1,349 568 1.01 Umatilla 103,785 540,021 224 316 224 0.19 White Earth Nation 184,753 643,350 869 779 674 0.29 Winnebago 221,758 317,123 322 337 276 0.70 Yurok N.A. 178,205 44 7 33 N.A. Total $36,484,842 $41,744,837 50,892 33,834 34,413 $0.87 Source: Congressional Research Service, based on data from the Office of Child Support Enforcement, Department of Health and Human Services. Notes: According to OCSE, data reporting by the tribes has been an issue for three reasons: (1) reporting methods before 2006 were not clear, (2) in 2006, the reporting form changed again and what was required was not clear; and (3) until one of the tribes developed an MS Access-based case management system, all data were calculated manually (most tribes now use the Access system). N.A.—not available. (For the most part, the tribes for which data are not available are tribes that began operating “comprehensive” tribal CSE programs in FY2013 or FY2014.) a. This column shows distributed tribal CSE collections divided by tribal CSE expenditures. The total differs from Table 2 because it does not include tribal CSE collections that were forwarded to states. It should be noted that during the formative years of any program, the meaning of program indicators may not be clear-cut. For example, with respect to tribal CSE programs, a large caseload may mean that the program is doing an excellent job of informing potential recipients of the program, or it may mean that there are reasons external to the program that are contributing to the high number of cases, such as high divorce rates, high rates of single-parent families, high rates of nonmarital childbearing, or high rates of nonpayment of child support. Similarly, high expenditures may mean that the program is providing a range of services to ensure child support collections, or that it has increased program staff to facilitate outreach and program administration, or that the families it is servicing require a lot of assistance (e.g., location services, paternity establishment, order establishment). Thus, although the tables are provided to shed some light on how individual tribal CSE programs are doing, it is probably unwise to draw conclusions from the data or make broad generalizations about tribal CSE programs. The effectiveness of tribal CSE programs may prove to be even more difficult to determine and evaluate than state CSE programs. Issues Nearly eight years after tribes officially became part of the CSE program with the enactment of the 1996 welfare reform law, final regulations104 were established to implement direct funding to Indian tribes and tribal organizations for tribal CSE programs. The final regulations require that all child support agencies accept applications for service from anyone and require that the tribal CSE agency provides appropriate services. This includes taking all applications, opening a case for each, determining what services are needed and may be provided by the tribal CSE agency, and providing all of those services required by tribal CSE regulations. The tribe must provide, at a 104 The final rule pertaining to tribal CSE programs is found in Federal Register, vol. 69, no. 61,March 30, 2004. The federal regulations are codified at 45 C.F.R. §309. Congressional Research Service 31 Child Support Enforcement: Tribal Programs minimum, basic assistance, such as location, preparation of documents for intergovernmental processing, and case monitoring and distribution of collections forwarded from another jurisdiction. There may be circumstances where the tribal agency’s only appropriate service will be to request assistance from another tribal or state CSE program with the legal authority to take actions on the case. In these and other such instances, states and tribes must work together to ensure that families receive the child support that they deserve.105 Although tribes and tribal organizations can now operate CSE programs, many problems have yet to be resolved. Even though there are rules related to whether a state or a tribe has jurisdiction over certain cases, in some instances there is concurrent jurisdiction and in some instances the complexity of the case blurs jurisdictional lines. Although federal regulations clarify that establishment of paternity under tribal CSE programs does not infer tribal enrollment or membership, paternity is inextricably linked to tribal membership. Many tribes view tribal membership as a political and cultural issue and thereby do not want to rely on scientific technology to confer tribal membership. A major difference between state CSE programs and tribal CSE programs is that tribal CSE programs can authorize the use of noncash payments to satisfy child support orders. Some observers are concerned that requiring the tribe to place a dollar value on each type of noncash payment may prove to be administratively cumbersome and costly. They argue that it is hard to predict and include a dollar amount for all of the kinds of noncash payments that members of the tribe may want to use to satisfy their child support obligations. Some child advocates are concerned that children who receive tribal CSE services may be less likely to receive the child support to which they are entitled than their counterparts who receive state CSE services, because tribal CSE programs do not have access to the vast array of state collection methods. Although nonpayment of child support is likely to be a perennial issue, especially for low-income noncustodial parents, some observers assert that tribal CSE programs that determine realistic and appropriate child support orders from the outset may improve the long-term success of their programs. In addition, some observers are concerned that unequal resources may result in children within a tribes’ jurisdiction not getting the child support they are due, while others contend that the individualized approach used by tribes may counterbalance reduced and/or inadequate resources. This section examines the issues mentioned above. Jurisdictional Matters Indian tribes within the boundaries of the United States are considered “domestic dependent nations” under federal law, and tribal sovereignty and jurisdiction has been viewed by the federal government as limited. In general, tribal sovereignty applies in matters that affect tribe members who live on the tribe’s reservation. Census data indicate that about 67% of AIAN, as defined by race, live outside reservations and other Census-defined Indian areas.106 When all parties to a domestic relations case are not members of the tribe or any federally recognized Indian tribe, the tribe may lack jurisdiction.107 Whether a tribal court or state court has 105 U.S. Department of Health and Human Services, Office of Child Support Enforcement, Tribal Policy Interpretation Questions, PIQT-05-02, April 26, 2005. 106 U.S. Census Bureau, “The American Indian and Alaska Native Population: 2010,” by Tina Norris, Paula L. Vines, and Elizabeth M. Hoeffel, 2010 Census Briefs, C2010BR-10, January 2012, p. 13. 107 The Supreme Court, in Montana v. United States, 450 U.S.544 (1981), distinguished between retained tribal sovereignty and that whic [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR41204. Public record. Not legal advice.