Last week, the Department of the Interior published final regulations implementing the Indian Child Welfare Act, along with a legal opinion from the Solicitor of the Department of the Interior regarding the authority to issue such regulations. The Department’s regulations, and the accompanying legal opinion, garnered a lot of attention across Indian country and Indian child welfare advocates, and may prove to be the capstone on the Administration’s work for Native children.

However, last week the President also signed of the “Native American Children’s Safety Act” (S.184 or “NACSA”). NACSA amended 25 U.S.C. § 3207 – requiring character investigations for certain individuals who have regular contact with Indian children.

As its title suggests, NACSA is intended to protect Indian children in tribal foster care by doing several things:

1. Prohibiting child placement in foster care, or licensing foster homes, unless the tribe has completed a criminal background check on each individual residing in the foster home and certified that each of those individuals meets the requirements of the statute;
2. Requiring tribes to adopt placement standards in accordance with the statute;
3. Requiring tribes to recertify existing foster homes to ensure that they meet the new standards required under the statute; and,
4. Requiring the Department of the Interior to issue guidance on appropriate placement standards (and subjecting tribal standards to the Department’s guidance).

Given its subject matter and intent, NACSA moved through Congress with little opposition and broad support. But, the details of the statute’s mandates seem to have caught a number of tribal courts and social services agencies off-guard. Some tribal judges (including one of the authors of this post), tribal social services agencies, and Indian child welfare advocates are concerned about unintended consequences that could flow from the mandates in this new law. Those mandates include the following:

1. Tribal courts and agencies are required to conduct fingerprint-based checks of national crime databases, as well as checks of state abuse and neglect databases in every state where any adult in the foster home resided for the past five years.

2. If those checks reveal that any adult in the home has been convicted of a felony in any federal, state, or tribal court for crimes listed in 42 U.S.C. § 671(a)(20)(A)(i) or (ii), tribal courts and agencies are prohibited from placing children in the foster home. Those crimes are a host of felonies, but also include “drug-related offenses.” Because the statute makes a cross-reference rather than specifically enumerating the crimes, it’s not clear whether the five-year limit in the referenced statute carries over as a limit on this provision.

3. The Department of the Interior is required to issue “guidance” sometime in the next two years that is binding on Indian tribes regarding placement standards. That guidance must address “self reporting requirements” for the head of the household if he/she knows that another adult in the house is listed on any tribal or state abuse registry, or has been convicted of any of the crimes listed above.

While well intended, these provisions will leave tribal foster care agencies and tribal courts without any discretion to certify foster homes and make placements within their communities. It is likely to further limit the availability of eligible foster homes in tribal communities.

As people across Indian country know, many households on the reservation include temporary residents – including extended family members, adult children, family friends, or other community members in need. A member of the household may have gone through the tribe’s healing to wellness court. NACSA does not leave tribal agencies much flexibility to account for these homes or living arrangements. Where tribal courts and agencies previously had discretion to make those judgment calls, NACSA removes that discretion. Any adult living in the home with a prior drug-related offense may automatically disqualify that home from being approved as a foster care placement.

In addition, NACSA requires the Department of the Interior to issue binding guidance on implementation of the statute, including procedures for “self-reporting” by the head of the household if he/she has knowledge that any other adult in the home was convicted of a crime listed above. Tribes will be required to enforce this mandate, but it is unclear how.

NACSA’s mandate that tribes conduct background checks on state databases presumes that state agencies will cooperate with tribal agencies in their efforts to conduct such searches. The statute does not provide Indian tribes with any legal tools, other than the authority to enter into “voluntary agreements with State entities,” to require such cooperation. It is not difficult to imagine a scenario in which state agencies are uncooperative in conducting those searches, thus slowing down foster care placement in Indian country. It is one thing for a tribe to have solid relationships with a local county or even the state—it is quite another to have to reach out to every state where an individual lived in the past five years (let’s say, Ohio, for example) for cooperation.

Perhaps most importantly, NACSA does not provide tribal courts and social services agencies with any additional resources to carry out these new mandates. The courts and agencies with the least amount of resources will now have to spend more money to remain in compliance with federal law. Failure to remain in compliance with these new mandates will likely jeopardize the already meager federal funds that flow into tribal courts and child welfare agencies.

None of this is to say tribal judges or social services agencies don’t have an interest in making sure that foster children are placed in safe homes, or that the proponents of NACSA had bad intentions. As a tribal court judge and ICWA advocate, we applaud the fact that Congress and policy makers care about the importance of safe foster homes in Indian country.

But NACSA may turn out to be a law with drastic unintended consequences (we hope not). This statute could benefit from some amendments to allow tribal courts and agencies to have more discretion to solve problems at the local level, as well as authorization of funding to help tribes meet these new requirements. Absent those amendments, the Department of the Interior must work closely with tribal judges and social services workers to ensure that the law is implemented in a way that prevents unintended consequences.