Child Support on Tribal Lands - The New Mexico/Navajo Nation Cooperative Agreement

TO ALL STATE IV-D DIRECTORS

Dear Colleague:

Introduction

The provision of title IV-D child support services on Tribal Lands can be a
challenge for both Indian custodial parents and their children who need child
support, and for States who have the duty to administer a Child Support
Enforcement program.

Under title IV-D of the Act, authority to administer the delivery of support
enforcement services lies with the States and their local political
instrumentalities. However, on most Indian reservations the authority of
State and local governments and the jurisdiction of State law is limited or
non-existant.  The Constitution, numerous court decisions, and Federal law
clearly reserve to Indian Tribes important powers of self-government,
including the authority to make and enforce laws, to adjudicate civil and
criminal disputes (including domestic relations cases), to tax, and to license.


Consequently, States which have attempted to provide title IV-D services on
Tribal lands have generally been constrained in their abilities to establish
paternity, or establish and enforce child support orders with respect to
absent parents who reside within the jurisdiction of an Indian Tribe.  This
case study of the development of the New Mexico/Navajo Nation Joint
Powers Agreement (cooperative agreement) provides information which may
be useful for Tribes and States in designing approaches for the provision of
IV-D services on Tribal lands.

Background

OCSE-PIQ 89-13, "Federal Funding on Indian Reservations."  This PIQ was issued
in response to concern raised by the State of North Dakota on the effect of
Federal policy at 45 CFR 303.107 for cooperative agreements between IV-D
agencies and courts and law enforcement agencies as it related to IV-D
funding on Tribal lands.  One of the major provisions of section 303.107
established that:  "Arrangements must specify that the parties will comply
with title IV-D of the Act, implementing regulations and other applicable
Federal regulations and requirements." 45 CFR 303.107(c).  The PIQ
recognized that two kinds of arrangements are eligible for IV-D funding. 


      The first arrangement involved cases where a Tribe "agreed to allow
       the ... IV-D agency to ... extend IV-D procedures to the reservation.
       The above approach is workable and FFP is available for services
       conducted [by the State] under such agreements." 


      The second arrangement involved a cooperative arrangement between
       the IV-D agency and a Tribe.  The PIQ states "A cooperative
       agreement between the IV-D agency and a Tribal entity, in which the
       IV-D agency delegates any of the functions of the IV-D program to the
       Tribal entity , would have to meet the requirements for cooperative
       agreements as described at 45 CFR 302.34 and 303.107.  More
       specifically, the agreement must specify that, in accordance with 45
       CFR 303.107(c), that the tribal entity will comply with title IV-D of the
       Act."


Howe vs. Ellenbecker.   In 1990, two Indian custodial parents living on Tribal
lands within South Dakota filed a class action suit against the State of South
Dakota and HHS claiming that they were denied support collection services
under title IV-D of the Social Security Act by reason of the fact that the
absent parents were Indians who lived and worked on Tribal lands.  The
State and Federal defendants responded that the State had attempted to
provide IV-D services in such cases, but was prevented from taking effective
action in cases where the non-custodial parent both lived and worked on
Tribal lands because of jurisdictional barriers created by Tribal sovereignty.
The defendants further responded that the only entities which had the power
to surmount such obstacles were the Tribes in South Dakota, by
participation in State and Tribal negotiations for cooperative arrangements in
accordance with the policy set forth in 45 CFR 302.34, 303.107, and PIQ
89-13.

In 1991 the court granted declaratory relief in favor of the plaintiffs and
ordered HHS to begin actions to directly enter into cooperative agreements
with Tribal councils in the State of South Dakota.  After subsequently
determining that direct Federal funding to a Tribe was contrary to Federal IV-
D statutes, the Court  issued a memorandum on March 27, 1992 which
recognized the jurisdictional roadblocks and ordered that the State of South
Dakota, with Federal assistance, propose to the nine Tribes within the State
the possibility of entering into cooperative agreements in conformance with
title IV-D requirements.

OCSE-PIQ-95-01.  This clarifies that a State may enter into a cooperative
agreement with a Native American tribe for delivery of IV-D services under
which the tribe operates a child support enforcement program on tribal lands
under laws and procedures which conform with title IV-D requirements, but
which may be different from those adopted by the State.

The New Mexico/Navajo Joint Powers Agreement
                                         
Bird Letter, May 1991.   Peggy L. Bird, Attorney at Law, representing DNA-
People Legal Services, Inc. in Shiprock NM wrote HHS Secretary Louis
Sullivan regarding a potential class action lawsuit (similar to the Howe case)
against the State of New Mexico and the HHS for failure to provide Child
Support Services on the New Mexico portion of the Navajo Reservation. 
OCSE responded by restating its proposed solution in the Howe case and
encouraged Ms. Bird and her clients to work with the Navajo Nation, the
State of New Mexico and the OCSE Region VI Office in Dallas

New Mexico Appropriations, September 1992.   State Senator John Pinto,
responding to a request from the Navajo Nation, introduced an amendment
to the FY 1993 Human Services Department budget providing $150,000
earmarked for a contract(s) with the Navajo Nation for the provision of Child
Support Services on the Navajo Reservation. The appropriation was adopted.

Zion Letter, March 1993.   James W. Zion, Esq. Solicitor, Judicial Branch,
Office of the Chief Justice, Navajo Nation, wrote OCSE proposing that
"OCSE should require the Title IV-D agencies in this region [i.e., New
Mexico, Arizona and Utah] to enter into cooperative agreements with the
Navaho Nation and its courts, and share available resources, so that we may
establish systems which intermesh."  This represented a major change both
from the Bird letter and the philosophy behind the Howe case: 


      It was from a Tribal representative rather than legal counsel
       representing individual custodial parents. 


      No demand for direct Federal funding was made.  Mr. Zion expressly
       referred to cooperative agreements with States.  

OCSE responded by letter in May 1993 encouraging the Navajo Nation to
begin negotiations with those States for the purpose of developing
cooperative arrangements for the provision of IV-D services on Tribal lands.
OCSE reiterated that "Federal funding is available to States" for the
establishment of such agreements, and that:

       "Under these agreements, the court or law enforcement entity
       must conform to the requirements of title IV-D.  The State is
       required to ensure that all cooperative arrangements contain a
       clear description of the duties and responsibilities of each party.
       The agreement should also specify standards of performance
       which meet Federal requirements under title IV-D of the Act,
       implementing Federal regulations and any other Federal
       regulations and requirements.  In addition the State must ensure
       that the agreement specifies financial arrangements, budget
       estimates, and the kinds of records that must be maintained."

OCSE also stated that it was aware that the New Mexico legislature had
earlier  appropriated funds to be used for such a purpose, and urged that the
Tribe contact the ACF Regional Administrator in Dallas, Leon McCowan, as
the designated regional lead for Native American child support issues to
begin the process to establish a IV-D program through State auspices. 

June 1993.   Region VI ACF Administrator, Leon McCowan, began
discussions with Ben Silva, Director of the New Mexico IV-D Program,
encouraging the establishment of a cooperative agreement with the Navajo
Nation.


      Impetus for Navajo Interest.  State IV-D staff explained to Region that,
       as important as the $150,000 appropriation was in encouraging Tribal
       interest, the fact that the Navajo Nation Office of Women and Families
       was lobbying for an agreement based on "child welfare" considerations
       was the main force behind Navajo interest.  The Navajo Nation
       authorities had previously been uncomfortable in dealing with the State
       on this issue based on their perception that it would involve the
       compromise of tribal sovereignty.


      Draft Cooperative Agreement.  Ben Silva, and Helen Nelson, IV-D Staff
       Attorney, drafted a proposed Cooperative Agreement based on
       standard language the State uses for arrangements with local
       prosecutors, which is, in turn, based on Federal regulations at 45 CFR
       303.107.  They subsequently met twice with representatives of the
       Navajo Office of Women and Families, Navajo Department of Human
       Resources, and the Office of the Chief Justice, Navajo Nation. 


      Program Funding Proposal.  At the first meeting with IV-D personnel,
       Navajo representatives introduced a proposed Program Funding
       document containing the Navajo Nation's proposal for implementing a
       one-year child support enforcement project with $150,000 in State
       funding. (This document, with its narrative and program goals, budget
       for personnel and equipment, training schedules and evaluation
       component, is consistent with how the Navajo's and other Tribes
       handle Federal funding for various projects funded by ANA, the BIA
       and other Federal funding sources).  The State insisted that the
       cooperative agreement would be the controlling document in setting
       forth the contractual obligations of both parties.  The Regional Office
       stressed that any contract would need to follow regulations, or the
       State would need to ask for a waiver.   On June 28, the Dallas
       Regional Office staff held a conference call with State representatives
       to determine the status of negotiations and set a date for a regional
       meeting with the State and the Navajos.

July 1993.   Leon McCowan and members of the Region VI OCSE office
(Carl Rich and OCSE program manger Barbara Robinson), the OCSE program
managers in Regions VIII and IX (Jo Shannon and John Kersey), a
representative from Central Office (Craig Hathaway), New Mexico
representatives (Ben Silva and Helen Nelson) and a representative from the
Arizona IV-D office (Kim Gillespie) met with Tribal respresentatives in Santa
Fe, New Mexico to further this process. 

voiced concern that expectations that the Navajo Nation would immediately
be able to comply with all IV-D requirements was unrealistic, although they
were committed to compliance in a reasonable amount of time.  Also of
concern was that the $150,000 appropriation in State funds would expire in
January of 1994.  If the agreement could not be signed until all necessary
Tribal statutory and procedural changes were in place, the money would be
gone.


      Federal and State representatives stressed that no IV-D funds were
       available for activities that were not in compliance with IV-D
       requirements.

July - December 1993.  Based on the above discussions, the State began to
formulate an approach, which envisioned that the cooperative agreement
would be a phased commitment of State\IV-D funds.  Upon ratification of
the agreement by the State and Navajo Nation, the first phase of the project
would begin with the hiring of staff, leasing of space, equipment and
supplies, and the training of Navajo staff in IV-D requirements and
procedures.  The second phase would commence when the Navajo Nation,
as required in the agreement, enacted the comprehensive legislative package
designed to comply with IV-D funding, at which time the actual operational
IV-D program for the establishment of paternity, and the establishment and
enforcement of child support orders would begin.

Agreement Signed.  On December 28, 1993 the President of the Navajo
Nation, Peterson Zah, and the Secretary of Human Services Department of
the State of New Mexico, Richard Heim, signed a "Joint Powers Agreement"
for the provision of IV-D services on the Navajo Nation.  The initial term of
the cooperative agreement was from December 17, 1993 to June 30, 1994.
The agreement was subsequently renewed for a one-year period from July 1,
1994 to June 30, 1995.  The major provisions of the agreement are:


      The Commitment of State Funds.  The State of New Mexico
       committed $150,000 as the State match to contract with the Navajo
       Nation for the provision of title IV-D services on the New Mexico
       portion of the Navajo Nation.  An additional $150,000 was
       appropriated by the legislature for New Mexico's FY 1994 to cover the
       one-year renewal period.


      The Commitment of Federal Funds.  Federal financial participation was
       available in the costs of providing services in accordance with title IV-
       D requirements.  Federal funds were also available for the leasing of
       space and equipment for child support offices on Tribal lands and for
       training provided by State IV-D staff or consultants in IV-D procedures.


      Tribal Commitment to Conform to Title IV-D.  "The Department and
       the Navajo Nation will comply with title IV-D of the Social Security
       Act, implementing regulations and any other applicable Federal
       regulations and requirements.  The Department and the Navajo Nation
       will comply with New Mexico state statutes and policy where
       applicable.  The Department and the Navajo Nation will comply with
       Navajo Nation law where applicable."  [The last two sentences reflect
       that the Navajo Nation was committed in the agreement to passing
       comprehensive Tribal child support enforcement statutes (see below)
       designed to be in conformance with title IV-D requirements.  Both
       parties recognized that the Navajo Nation laws may be different from
       State law, as long as they are in conformance with title IV-D
       requirements.  This approach is consistent with the policy enumerated
       in PIQ 89-13 and 45 CFR 302.34 and 303.107 which refer to
       "compliance with  title IV-D of the Act]


      Tribal Commitment to the Passage of Comprehensive Child Support
       Statutes. The Navajo Nation Department of Justice committed to
       "complete a comprehensive review of Navajo Nation laws concerning
       child support enforcement, URESA, and other relevant Federal
       legislation in order to provide recommended amendments to Navajo
       tribal law" by January 30, 1994.  Based on this study, the Navajo
       Nation Legislature subsequently passed an omnibus package amending
       Tribal statutes, designed to bring Tribal law into conformance with title
       IV-D requirements, on December 14, 1994.


      The Provision of Comprehensive Training.  The State "will provide a
       minimum of 40 hours of training annually to Tribal staff engaged in the
       delivery of IV-D services.  In addition, the State agrees to train new
       employees of Navajo Nation staff during the term of the agreement for
       a total of 80 hours."  The State will:  "Provide reasonable technical
       assistance, training , policy, and support necessary to accomplish the
       purposes of this agreement in compliance with title IV-D
       requirements."

Operations Under the Joint Powers Agreement
      
First staff were hired in February 1994.  State IV-D staff began the training
of Navajo staff shortly thereafter.  Training is ongoing through 1995.

Two IV-D offices, at Crown Point and Ship Rock, were opened on August
14, 1994.  Navajo staff hired previously continued their training at the
facility.  The delay from December 1993 to August 1994 for opening offices
was necessary due to extensive renovation and site preparation necessary so
that the two Navajo offices could effectively interface with the State IV-D
program.  For example, all phone service in the surrounding area was rotary.
Extensive rewiring, not only to the Navajo facility, but to area phone links,
was necessary in order for installation of a tone dialing system required for
the use of computer terminals in accessing the New Mexico IV-D automated
systems.

First Collection Actions.  Staff began to take actions on existing cases referred
by the State IV-D offices, subsequent to the passage of the comprehensive Navajo
IV-D legislation in December 1994,

Initial paternity and support establishment actions on a minimal number of
cases were begun in January 1995.

Policies and Procedures implementing IV-D legislation are being drafted, with
expected finalization in July 1995.

State Oversight.  New Mexico IV-D and Region VI staff have scheduled joint
site visits in May and July of 1995 to assess progress and to identify any
needs for additional training or technical assistance.