| (Cite
as: 1996 WL 678398 (Neb.A.G.))
Office
of the Attorney General
State
of Nebraska
*1
Opinion No. 96077
November
20, 1996
Subject:
Authority of the Legislature to require tribal Indians receiving Title
IV-E funding to submit to six-month reviews by the State
Foster Care Review Board
Joan
E. Schwan
State
Foster Care Review Board
You have requested our opinion on three issues:
(1) Are the Winnebago, Omaha and Macy Indian Nations bound
by LB 642, which requires the State Foster Care Review
Board ("Board") to conduct periodic case reviews which meet the
requirements of the Federal Adoption Assistance and Child Welfare Act
of 1980?
(2) If the tribes are bound by LB 642, may
the Board enter into contracts with the tribes to conduct
their own reviews without being subject to the authority of
the Board?
(3) Do the Winnebago Nation's tribal court reviews qualify for
Title IV-E funding under Section 2 of LB 642 in
place of reviews by the Board?
We conclude that the tribes are bound by LB 642,
that the Board may not enter into contracts with the
tribes to conduct their own reviews, and that, in the
interest of caution, tribal court reviews may qualify for Title
IV-E funding under LB 642.
DISCUSSION
You first ask whether LB 642, a state law, can
be applied to the State's Indian tribes. State law applies
to Indians only in limited circumstances. "When on-reservation conduct involving
only Indians is at issue, state law is generally inapplicable."
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 144,
100 S.Ct. 2578, 2584, 65 L.Ed.2d 665, ___ (1980). In
California v. Cabazon Band of Mission Indians, 480 U.S. 202,
207, 107 S.Ct. 1083, 1087, 94 L.Ed.2d 244, ___ (1987),
the Court stated:
'[T]ribal sovereignty is dependent on, and subordinate to, only the
Federal Government, not the States.' [Citation omitted.] It is clear,
however, that state
laws may be applied to tribal Indians on their reservations
if Congress has expressly so provided.
Thus,
the issue is whether Congress has provided Nebraska the authority
to impose the statute in question, LB 642, on tribal
Indians.
The Adoption Assistance and Child Welfare Act of 1980, enacted
in part as Part E of Subchapter IV of Title
42 ("Title IV-E"), establishes federal payments to provide foster care
and adoption assistance to children who would otherwise be eligible
for federal assistance under Part A of Subchapter IV but
for their removal from the home of a relative and
to children who have special needs. 42 U.S.C. §§ 670
& 672. States are not obligated to participate in Title
IV-E funding, but if they choose to do so and
receive funding, they must conform to the requirements of the
Social Security Act. Todd v. Norman, 840 F.2d 608 (8th
Cir. 1988); Edwards v. McMahon, 834 F.2d 796 (9th Cir.
1987).
Title IV-E payments are only available to states which have
submitted, and had approved by the Secretary of Health and
Human Services, state plans complying with Title IV-E. 42 U.S.C.
§ 671.
The state plans must meet a certain number of requirements
in order for the State to be eligible for the
federal payments. Those requirements are listed in 42 U.S.C. § 671.
One of the requirements is that the state plan:
*2
provides for the development of a case plan (as defined
in section 675(1) of this title) for each child receiving
foster care maintenance payments
under the State plan and provides for a case review
system which meets the requirements described in section 675(5)(B) of
this title with respect to each child[.]
42
U.S.C. § 671(a)(16).
Section 675(5)(B) states that the case review system must assure,
among other things, that:
the status of each child is reviewed periodically but no
less frequently than once every six months by either a
court or by administrative review (as defined in paragraph (6))
in order to determine the continuing necessity for and appropriateness
of the placement, the extent of compliance with the case
plan, and the extent of progress which has been made
toward alleviating or mitigating the causes necessitating placement in foster
care, and to project a likely date by which the
child may be returned to the home or placed for
adoption or legal guardianship[.]
42
U.S.C. § 675(5)(B).
If the State fails to comply with these provisions, it
will lose the federal funding.
While Title IV-E requires the State to conduct six-month reviews,
it does not require the State to appoint any particular
entity to conduct the reviews. In Title IV-E and other
Aid to Families with Dependant Children cases, federal law gives
each state great latitude in dispensing with its available funds.
Anderson v. Edwards, ___ U.S. ___, 115 S.Ct. 1291, 131
L.Ed.2d 178 (1995). Thus, the State appears to have discretion
to determine exactly who shall be responsible
for conducting such reviews. The Nebraska Legislature, via LB 642,
has appointed the State Foster Care Review Board as the
responsible body. Since LB 642 does not conflict with any
of the provisions of Title IV-E, LB 642 is an
appropriate exercise of that discretion.
Before an eligible child is entitled to receive Title IV-E
funds, several requirements must be met. These requirements are set
out in 42 U.S.C. § 672.
One of the requirements is particularly relevant to this discussion:
(2) such child's placement and care are the responsibility of
(A) the State agency administering the State plan approved under
section 671 of this title, or (B) any other public
agency with whom the State agency administering or supervising the
administration of the State plan approved under section 671 of
this title has made an agreement which is still in
effect;
42
U.S.C. § 672(a)(2).
The federal Indian Child Welfare Act ("ICWA"), 25 U.S.C. §§ 1901
through 1963, authorizes agreements between states and tribes concerning the
care and custody of Indian children. 25 U.S.C. § 1919(a).
Such agreements satisfy the requirement of 42 U.S.C. § 672(2)(B).
Moreover, in the absence of such an agreement, an Indian
tribe is not entitled to receive Title IV-E funds. Native
Village of Stevens v. Smith, 770 F.2d 1486 (9th Cir.
1985).
Neither the federal ICWA nor Title IV-E make any provisions
for Indian tribes which
do not comply with the State plan to receive Title
IV-E funds. Also, the State would risk losing its funding
if it were to allocate Title IV-E funds to tribes
not meeting the requirements of the State plan. Thus, any
agreement between the State and Indian tribes must meet the
requirements of the State plan, and the tribes must abide
by those requirements. Since the State has discretion to require
the State Foster Care Review Board to conduct the six-month
reviews as part of the State plan, the Winnebago, Omaha,
and Macy Indian Nations must submit to those reviews or
risk losing their Title IV-E funds.
*3
You next ask whether the Board could enter into a
contract with the Omaha Nation, whereby the Omaha Nation could
conduct its own reviews using its own board without being
under the authority of the State Board or any local
board. The question appears to arise from the language of
Section 1 of LB 642, which states, "[t]he State Foster
Care Review Board shall be responsible for the conduct of
periodic reviews which shall be identified as reviews which..." The
question, then, is whether the phrase, "responsible for the conduct"
means that the Board must actually conduct the reviews itself,
or whether it must simply ensure that the reviews are
carried out by some entity, either itself or an entity
with whom it has contracted.
We first note that the language of the statute is
unclear. The word "responsible" is defined by Webster's Ninth New
Collegiate Dictionary as, "liable to be called upon to answer
as the primary cause, motive, or agent; liable
to legal review or in case of fault to penalties."
This definition does not make clear whether the Board can
delegate the reviews to a contracted entity. However, when a
statute is ambiguous, the court may examine the legislative history
of the act in question to ascertain the Legislature's intent.
Southern Nebraska Rural Public Power Dist. v. Nebraska Elec. Generation
and Transmission Co-op, Inc., 249 Neb. 913, 546 N.W.2d 315
(1996).
It is clear from the legislative history that the Legislature
intended the Board to actually conduct the reviews itself, rather
than contracting the reviews out. The floor debates reveal that
every Senator who argued either in favor of or in
opposition to this bill agreed that the State Foster Care
Review Board and its local boards had to actually conduct
the reviews themselves. For example, Senator Bernard-Stevens, while addressing the
appropriateness of transferring Department of Social Services workers to the
State Board via LB 642, stated, "...and we then transfer
all authorities of review to Foster Care without any feeling
of whether or not there is the volunteers to do
it...." Floor Debate on LB 642, 94th Neb. Leg., 1st
Sess. 6543 (May 9, 1995) (Statement of Senator Bernard-Stevens). Senator
Hillman stated very shortly thereafter:
Currently what we have is a system where DSS does
those reviews, and Foster Care Review Board does a random
review, doesn't do all of them. What Senator Avery's bill,
to me, says we are just going to flip-flop that
situation where the Foster Care Review Board does all of
them and DSS does just a random review.
Id.
at 6544 (Statement of Senator Hillman). Senator Bohlke discussed the
feasibility of awarding the task to the State Board:
...but what I would need and hope that you may
give a discussion of how we are going to make
sure that we have trained volunteers [to review the cases]
in each of the counties...
Id.
at 6548 (Statement of Senator Bohlke). Senator Avery, the sponsor
of the bill, answered:
*4
Well, we know that the 200 volunteers have reviewed 1,936
[cases]. There will be additional boards provided with each of
the transferred employees for each...for some of those to the
point where we are reviewing the total, roughly 4,400 children
that are in out-of-care placement. Now we have to get
into some detail of the children, the type of children
that need some type of review.
Id.
at 6549 (Statement of Senator Avery). It is clear from
Senator Avery's discussion of additional boards and volunteers, as well
as the comments from the other Senators, that LB 642
requires the State Foster Care Review Board to conduct the
reviews. There are similar comments from at least ten other
Senators in numerous places in the record, which show that
they understood LB 642 to require the Board to conduct
the reviews itself through the local boards. Thus, the Board
cannot contract with the tribes to allow the tribes to
conduct
their own reviews without being subject to the rules and
regulations of the Board.
Finally, you ask whether the Winnebago Nation's court reviews would
qualify as Title IV-E reviews under LB 642, Section 2.
Section 2 states:
It is the intent of the Legislature that any six-month
court review of a juvenile pursuant to sections 43-278 and
43-1313 shall be identified as a review which meets the
federal requirements for six-month case reviews pursuant to the federal
Adoption Assistance and Child Welfare Act of 1980, Public Law
96-272.
Your
request appears to concern reviews conducted under 43-1313 rather than
under 43-278. The question of whether the Winnebago Nation's reviews
fall under the provisions of 43-1313 or are sufficiently equivalent
to those reviews to qualify for funding is a matter
of state law as opposed to federal law. As stated
above, 42 U.S.C. § 671(a)(16)
requires the State to provide for six-month reviews, but it
gives the State discretion as to how to conduct those
reviews. Section 2 of LB 642 is an exercise of
that discretion.
Neb. Rev. Stat. § 43-1313
states in part:
When a child is in foster care, the court having
jurisdiction over such child for the purposes of foster care
placement shall review the dispositional order for such child at
least once every six months.
Neb.
Rev. Stat. § 43-1313
(1993). The language of the statute itself is unclear
as to whether it applies to tribal courts. The legislative
history is silent on the issue.
The provisions of the Foster Care Review Act ("FCRA"), Neb.
Rev. Stat. §§ 43-1301
through 43-1318 (1993), and the Nebraska ICWA, Neb. Rev. Stat.
§§ 43-1501
through 43-1516 (1993), provide little guidance. First, the Nebraska ICWA
provides:
An Indian tribe shall have jurisdiction exclusive as to this
state over any child custody proceeding involving an Indian child
who resides or is domiciled within the reservation of such
tribe, except where such jurisdiction is otherwise vested in the
state by existing federal law. When an Indian child is
a ward of a tribal court, the Indian tribe shall
retain exclusive jurisdiction, notwithstanding the residence or domicile of the
child.
*5
Neb. Rev. Stat. § 43-1504(1)
(1993). If § 43-1313
were found to impose a six-month review requirement on the
tribal courts, it would appear to violate the tribe's sovereignty
and jurisdiction. Also, Neb. Rev. Stat. § 43-1301(5)
(1993) appears to provide for the application of provisions of
the FCRA to Indian tribes by incorporating "entit[ies] having jurisdiction
over the child pursuant to the Nebraska [ICWA]" into the
definition of the phrase "person or court in charge of
the child," which is used in various places in the
FCRA. That phrase is not used in § 43-1313
to refer to the parties to which
that section applies. Rather, the language used is, "the court
having jurisdiction over such child for the purposes of foster
care placement." If the Legislature wished to include tribal courts
in the application of 43-1313, it probably would have used
the phrase, "court in charge of the child."
On the other hand, there is reason to believe that
43-1313 does apply to tribes. Several sections of the FCRA
contain the phrase, "except as otherwise provided by the Nebraska
[ICWA]." It can be reasoned that when the Legislature has
specifically excluded tribes in certain parts of the act and
not in others, the Legislature intended the tribes to be
included in those other parts.
Two provisions of the federal ICWA may appear to apply
to this question and should be addressed. First, 25 U.S.C.
§ 1911(d)
states:
The United States, every State, every territory or possession of
the United States, and every Indian tribe shall give full
faith and credit to the public acts, records, and judicial
proceedings of any Indian tribe applicable to Indian child custody
proceedings to the same extent that such entities give full
faith and credit to the public acts, records, and judicial
proceedings of any other entity.
At
first glance, it would appear that tribal court reviews must
be viewed as equivalent to the reviews conducted under 43-1313.
However, the tribal court reviews are not conducted for the
purpose of qualifying for Title IV-E funding, since those reviews
were in place before the passage of LB 642. Rather,
they are
presumably conducted for the purpose of determining the necessity of
the continued placement of the child. It is possible for
the State to give full faith and credit to the
determination of the tribal court regarding placement while finding that
the tribal court's review was not sufficient to qualify the
child for Title IV-E funding.
Second, 25 U.S.C. § 1931(b)
states in part:
For purposes of qualifying for assistance under a federally assisted
program, licensing or approval of foster or adoptive homes or
institutions by an Indian tribe shall be deemed equivalent to
licensing or approval by a State.
While
this section does not require the State to accept a
tribal court's reviews as equivalent to state court reviews qualifying
for Title IV-E funds, it appears to show an intent
on the part of Congress that the State do so.
*6
Our office has no clear answer on whether tribal court
reviews are equivalent to § 43-1313
reviews for the purpose of qualifying for Title IV-E funding
under Section 2 of LB 642. However, since this issue
is a matter of state law, if the State determines
that the tribal court reviews do fall under the provisions
of LB 642, it is unlikely that the federal government
will interfere with this interpretation. On the other hand, if
the State determines that the tribal court reviews do not
qualify for funding, it is possible that certain tribes will
seek to litigate the issue. At that point, the federal
courts
may determine, under the aforementioned provisions of the federal ICWA,
that the reviews do qualify for funding. Therefore, in the
interest of caution, this office recommends that the Winnebago Nation's
tribal court reviews qualify for Title IV-E funding under section
2 of LB 642.
Sincerely,
Don
Stenberg
Attorney
General
David
Tarvin, Jr.
Assistant
Attorney General
Neb. Op. Atty. Gen. No. 96077, 1996 WL 678398 (Neb.A.G.)
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