tribal consultation

Tribal Consultation on the Proposed AFCARS Changes

ilpc1 Comment

Here is the letter sent today: Tribal Consultation Notification 4-16-2018

This is on the proposed changes to the Adoption and Foster Care Analysis and Reporting System (AFCARS), the way the feds collect from the states on adoption and foster care. This is specifically about removing ICWA data elements added in last year’s final rule because of the burden of collecting information about ICWA compliance and Native kids in care.

Both consultations will be done by phone, and if there are not enough participants “may end early”. Maybe tribal leaders or their designees would like to consult about how to weigh that “burden” of gathering information so tribes and states know what is happening with Native kids in foster care for the full 90 minutes:

Tribal Consultation seeking input on the ANPRM and potential changes to AFCARS will be held through two teleconference calls on the following dates and times.

Tuesday, May 15, 2018 @ 2:00 pm – 3:30 pm (EDT).

Please register here: https://acf.adobeconnect.com/efdd2gqe733x/event/registration.html

Wednesday, May 16, 2018 @ 2:00 pm – 3:30 pm (EDT)

Please register here: https://acf.adobeconnect.com/enhysqrbcyal/event/registration.html

For both consultations, the call-in number and passcode are: 877-917-3403, Passcode: 2498350. (Please note, if there are a small number of participants on the call, the call may end sooner than 3:30 p.m.)

Both Tribal consultation teleconference calls are open to all tribal leaders or their designees and may address any aspect of the ANPRM’s request for comments on AFCARS data collection, including data elements relating to ICWA that would reported by states and all other AFCARS elements that would be reported by both states and tribes operating title IV-E programs. Overall, we are interested to hear both recommendations on data elements to retain with a justification for using the data at the national level and recommendations on any data elements to remove because they may be either overly burdensome for title IV-E agencies to report or may not be reliable or necessary at the national level.

In addition to participating in the tribal consultation conference calls, the Children’s Bureau encourages tribal leaders to submit comments in writing in response to the ANPRM, as only written comments may be included in the regulatory record. The deadline for the receipt of written comments in response to the ANPRM is June 13, 2018.

There is also a briefing webinar:

The briefing webinar to learn more about AFCARS will be held on Wednesday, April 25, 2018 from 2:00 pm – 3:30 pm (EDT). If you are interested in participating in this webinar, please register at:

https://acf.adobeconnect.com/afcars/event/event_info.html

Because:

We recognize that while states have many years of experience in reporting AFCARS data, tribes may not be as familiar with AFCARS. To prepare for consultation, the Children’s Bureau is offering a briefing webinar for tribal leaders and/or members of your staff. The briefing webinar will be an opportunity for tribal leaders and members of your staff to learn more about AFCARS, including current data reported by states since the 1990’s and the changes to AFCARS that were promulgated in December 2016, but have not yet been implemented.

If only well over 60 tribes and tribal organizations had submitted comments in support of the additional data elements explaining in great detail why they are needed in the last comment collection on this issue in 2016 . . .

A non-tribal specific information session/briefing webinar earlier this month was problematic on ICWA (at best). There are a number of groups working on written comments, including model versions for tribes. When they are available, we will make sure to post that information. If you’d like to post comments now, here is the comments page.

Previous posts on AFCARS here.

Oglala Sioux Tribe Resolution Demanding BLM Consultation re: Converse County Oil and Gas Project (Wyo.)

Matthew L.M. Fletcher

Here:

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The tribe’s press release:

OST PRESS RELEASE ON CONVERSE COUNTY OIL GAS PROJECT (3-27-18) (1)

UPDATE (4/11/2018):

FINAL AGENDA FOR GOVERNMENT-TO-GOVERNMENT CONSULTATIOS (4-9-18).2

 

Lawrence Roberts: “DOI Actions Underscore Need For Tribal Consultation”

Matthew L.M. Fletcher

Here.

Federal Court Allows Tribal NHPA Consultation Claims to Proceed in Freeway Challenge

Matthew L.M. Fletcher1 Comment

Here are the materials in Coyote Valley Band of Pomo Indians of California v. United States Department of Transportation (N.D. Cal.):

68 Federal Motion to Dismiss

69 State Motion to Dismiss

73 Tribe Response to State Motion

74 Tribe Response to Federal Motion

76 Federal Reply

77 State Reply

94 DCT Order Partially Granting Federal Motion

Report: Improving Tribal Consultation and Tribal Involvement in Federal Infrastructure Decisions – January 2017

Matthew L.M. Fletcher4 Comments

Here. [PDF for when the Trump Administration deletes this report.] Update 10/27/17 — aaaaand it’s gone.

An excerpt:

This Report serves several functions. First, it provides information about the existing Federal statutory, regulatory, and policy framework governing both Tribal consultation and Federal decision-making on infrastructure and related projects. Second, it serves as a record of Tribal input on this topic, summarizing both written and oral comments received during the consultations, listening session, and written comment period. Third, in order to improve both consultation and infrastructure permitting processes, this Report recommends that agencies undertake a thorough review of their consultation policies and practices, and that consultation policies be provided to the WHCNAA and made publicly available (if they are not already). The Report provides an initial Federal response to Tribal comments and recommendations along with a set of principles that should inform Tribal consultation. Finally, the Report highlights best practices gleaned from what Tribes identified as successful Tribal consultations and makes recommendations for further research, administrative, regulatory, or legislative action.

Bob Miller on the United States Duty to Confer with American Indian Governments

Matthew L.M. Fletcher

Robert Miller has posted his paper, “Consultation or Consent: The United States Duty to Confer with American Indian Governments,” forthcoming in the North Dakota Law Review. Here is the abstract:

This article explores the current international law movement to require nation/states to consult with Indigenous peoples before undertaking actions that impact Indigenous nations and communities. The United Nations took a significant step in this area of law in September 2007 when the General Assembly adopted the Declaration on the Rights of Indigenous Peoples. The Declaration contains many provisions requiring states to confer and consult with Indigenous peoples, and in many instances to obtain their “free, prior and informed consent.” This article undertakes an original and detailed investigation into how the free, prior and informed consent standard emerged in the drafting of the Declaration.

But the article also points out that consultations and obtaining the consent of Indigenous peoples is nothing new in the political and diplomatic relations between American Indian nations and the United States. From the very founding of the U.S., it has maintained a government-to-government relationship with Indian tribes. This relationship is expressly recognized in the U.S. Constitution, and is reflected in hundreds of U.S./Indian treaties and in the history of the interactions between these governments. A nearly constant stream of formal and informal consultations and diplomatic dealings has marked this relationship.

In recent decades, though, the international community has begun focusing on consultations with Indigenous peoples and has increased the international law obligation on states to consult. The international regime is also moving far beyond mere consultations and is requiring states to obtain the free, prior and informed consent of Indigenous peoples. On the surface, requiring the United States to obtain the informed consent of Indian nations and peoples, before undertaking actions that affect them, might be more onerous than just consulting with tribal governments.

This article examines the history and modern-day processes for United States consultations with Indian nations and the emerging international law standard of free, prior and informed consent. The article argues that the United States should continue and even enhance the consent paradigm that has always been the goal of federal/tribal relations. And, the article also argues that the United States should have little trouble adapting to the new international law consent movement.

 

Call for Tribes on Changes to Adoption and Foster Care Analysis and Reporting Systems

Kate Fort

Call in information and agenda here.

This is an information session [for tribes] for the Children’s Bureau to provide an overview/summary of the Adoption and Foster Care Analysis and Reporting System (AFCARS) Notice of Proposed Rulemaking (NPRM), which was published in the Federal Register on February 9, 2015

From NICWA’s press release:

A Notice of Proposed Rule Making on AFCARS was published in the Federal Register on Monday, February 9, 2015, announcing that ACF intends to change some of the AFCARS reporting requirements. The full text of this Notice of Proposed Rule Making and proposed changes can be found here and an overview is available here.

Currently, there is no requirement for states to report data related to the Indian Child Welfare Act (ICWA) as a part of AFCARS. In addition, AFCARS does not require states to identify children in their care who are eligible for ICWA’s protections. Without this data there is no national information about how and when ICWA is followed in state child welfare systems

OVW Training on Federal Criminal Databases & DOJ Consultation on Violence Against Women

Victoria Sweet

The Office on Violence Against Women (OVW) is hosting a training session on federal criminal databases and information sharing, October 14, 2014 from 1:30-4:30 p.m in Rapid City, SD. The training is free and will provide information about the various federal criminal databases, requirements for accessing and submitting information to the databases, considerations for tribal leaders working to implement TLOA and VAWA 2013, current DOJ efforts to increase Tribal access to federal criminal databases, and updates on the implementation of Section 905(b) of VAWA 2005.

October 15, 2014 from 8:00 a.m. – 5:00 p.m. in Rapid City, SD is the U.S. Department of Justice’s 9th Annual Government-to-Government Violence Against Women Tribal Consultation. From the site:

The purpose of the consultation is to solicit recommendations on enhancing safety for American Indian and Alaska Native women, strengthening the Federal response to the crimes of domestic violence, dating violence, sexual assault, and stalking, and administering grants funds.

More information and registration is available here.

Indiana Alternative Medicaid Expansion Plan Rejected for Failure to Consult with Tribe

Kate Fort

Here.

 

A federal agency has asked the Pence administration to resubmit its proposal for an alternative Medicaid expansion because Indiana’s initial application didn’t include input from a band of Potawatomi Indians.

 

The Centers for Medicare and Medicaid Services returned the state’s proposal last month, two weeks after the state submitted the plan. Federal officials wrote that they could not begin their formal review until Indiana consulted the tribe.

“Specifically, at time of submission, the state did not meet the requirements for tribal consultation with the Pokagon Band of Potawatomi Indians,” wrote Angela Garner, the acting director of the federal agency’s division of state demonstrations and waivers.

DOJ to consult with tribes on possible voting rights legislation

Ann Tweedy

The DOJ is considering recommending that Congress pass legislation requiring state and local election administrators whose districts include Indian or Alaska Native lands to allow tribes to designate at least one polling place. Consultations are to begin shortly. It seems to me that such legislation would be very helpful in reducing the barriers to voting for Native persons who live on reservations and in similar communities.

The official notice is here: DOJ Consultation Announcement–Voting Rights (1). More information can also be found on the website for the Office of Tribal Justice.