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Report to Congressional Requesters

United States Government Accountability Office

GAO

April 2005

INDIAN CHILD

WELFARE ACT

Existing Information

on Implementation

Issues Could Be Used

to Target Guidance

and Assistance to

States

GAO-05-

What GAO Found

United States Government Accountability Office

Why GAO Did This Study

H ighlights

Accountability Integrity Reliability

www.gao.gov/cgi-bin/getrpt?GAO-05-290. To view the full product, including the scope and methodology, click on the link above. For more information, contact Cornelia Ashby at (202) 512-8403 or [email protected].

Highlights of GAO-05-290, a report to congressional requesters

April 2005

INDIAN CHILD WELFARE ACT

Existing Information on Implementation

Issues Could Be Used to Target Guidance

and Assistance to States

Placement decisions for children subject to ICWA can be influenced by how long it takes to determine that ICWA applies, the availability of American Indian foster and adoptive homes, and the level of cooperation between states and tribes. While these factors are unique to American Indian children, other factors can affect decisions similarly for all children. Many states, for example, place all children with relatives if possible and may consider changing placements for all children—regardless of ICWA status—when relatives are identified after initial placement. Our survey showed few differences between children subject to ICWA and other children in how often states had to decide whether to move a child to another home.

National data on children subject to ICWA are unavailable; data that were available from four states showed no consistent pattern in how long children subject to ICWA remained in foster care or how often they were moved to different foster homes compared to other children. In general, most children leaving foster care in fiscal year 2003 in the four states were reunified with their families, although children subject to ICWA were somewhat less likely to be reunified or adopted and were somewhat more likely to leave through a guardianship arrangement.

Length of Stay for Children Exiting Foster Care in FY 2003 in Four States Percentage of children

Source: Data provided by child welfare agencies in these states.

Oregon South Dakota Washington 3 years or more 2 years - less than 3 years (^) Less than 2 years

0

25

50

75

100

Oklahoma

ICWA CaucasianMinority

ICWA CaucasianMinority

ICWA CaucasianMinority

ICWA CaucasianMinority

ACF does not have explicit oversight responsibility for states’ implementation of ICWA and the information the agency obtains through its general oversight of state child welfare systems sometimes provides little meaningful information to assess states’ efforts. For example, the ICWA information states provided in their 2004 progress reports varied widely in scope and content and many states did not report on the effect of their implementation efforts. Further, while limited information from ACF’s reviews of states’ overall child welfare systems indicate some ICWA implementation concerns, the process does not ensure that ICWA issues will be addressed in states’ program improvement plans.

In the 1960s and 1970s, American Indian children were about six times more likely to be placed in foster care than other children and many were placed in non-American Indian homes or institutions. In 1978, the Congress enacted the Indian Child Welfare Act (ICWA) to protect American Indian families and to give tribes a role in making child welfare decisions for children subject to ICWA. ICWA requires that (1) tribes be notified and given an opportunity to intervene when the state places a child subject to ICWA in foster care or seeks to terminate parental rights on behalf of such a child and (2) children be placed if possible with relatives or tribal families. This report describes (1) the factors that influence placement decisions for children subject to ICWA; (2) the extent to which, if any, placements for children subject to ICWA have been delayed; and (3) federal oversight of states’ implementation of ICWA.

What GAO Recommends

GAO recommends that the Department of Health and Human Services’ Administration for Children and Families (ACF) consider using ICWA compliance information available through its existing child welfare oversight activities to target guidance and assistance to states. HHS disagreed with our recommendation. We continue to believe that ACF could use the information it gathers to help states improve their ICWA compliance.

Page ii GAO-05-290 Indian Child Welfare Act

Table 2: Comparison of Legal Standards for Children Subject to ICWA and for Children Not Subject to ICWA 8 Table 3: States with (1) Highest Percentage of Children Served in Foster Care Who Are American Indian and (2) Highest Number of American Indian Children Served in Foster Care, FY 2003 13 Table 4: Tribal Membership Requirements for Selected Tribes, as Reported by Tribal Officials 15 Table 5: State Child Welfare Agencies Reporting Challenges Related to the Availability of Foster Homes, FY 2003 23 Table 6: State Child Welfare Agencies Reporting Challenges Related to the Availability of Homes for Adoption or Long- Term Guardianship, FY 2003 24 Table 7: States Explicitly Addressing ICWA Compliance Requirements in Their 2004 Annual Progress and Services Reports 48 Table 8: States Reporting the Use of Activities Suggested by ACF to Comply with ICWA 49 Table 9: Relationship between ICWA Topics Discussed in States’ 2004 Annual Progress and Services Reports and Density of States’ American Indian Population 50 Table 10: ICWA Concerns Raised in CFSR Final Reports and Program Improvement Plans by State 52 Table 11: Review of Tribal Notification and Placements in Cases Involving American Indian Children during Child and Family Services Reviews, 2002-2004 56 Table 12: American Indian CFSR Cases Where Item Related to Preserving a Child’s Connections Was Judged “Needing Improvement” During Child and Family Services Reviews, 2001-2004 57 Table 13: Number and Percentage of Children with Unknown Ethnicity Who Exited Care in FY 2003 for Four States 63 Table 14: Criteria for Determining States’ Tribal Population Density Categories 65 Table 15: Tribal Population Density Categorization by State 66

Figures

Figure 1: American Indian Population Density by State 12 Figure 2: Responses from 25 State Child Welfare Agencies on the Frequency with Which the State Requested Insufficient

Page iii GAO-05-290 Indian Child Welfare Act

Information to Accurately Determine ICWA Status, FY 2003 18 Figure 3: State Child Welfare Agencies Reporting the Frequency with Which Families Provided Information That Was Too Imprecise to Identify a Child’s Specific Tribe, Requiring States to Send Membership Inquiries to Multiple Tribes, FY 2003 19 Figure 4: Survey Results from 19 Child Welfare Agencies Reporting on How Often They Face Decisions about Moving a Child from a Foster Home to Another Placement When a Relative Came Forward Late in a Case 26 Figure 5: Survey Results from 19 Child Welfare Agencies Reporting on How Often They Face Decisions to Move a Child from a Pre-adoptive Placement to Another Placement When a Relative Came Forward Late in a Case 27 Figure 6: Survey Results from 15 State Child Welfare Agencies Reporting on How Often They Exempt Children from ASFA’s 15 of 22 Provision, FY 2003 31 Figure 7: Length of Stay for Children Exiting Foster Care in Four States, FY 2003 35 Figure 8: Survey Results from 16 State Child Welfare Agencies Reporting How Many Children Remain in Foster Care Longer as a Result of Following ICWA Procedures, FY 2003 36 Figure 9: Survey Results from 10 State Child Welfare Agencies Reporting on the Estimated Increased Time That Following ICWA Procedures Adds to a Child’s Time in Foster Care, FY 2003 37 Figure 10: Survey Results from 22 State Child Welfare Agencies Reporting on the Effect of Specific ICWA Procedures on the Time to Place a Child in a Permanent Home Compared to Other Children in Foster Care, FY 2003 38 Figure 11: Survey Results from 19 State Child Welfare Agencies Reporting on How Often Courts Reject State Requests to Terminate Parental Rights for Children in Foster Care Because Evidence Does Not Meet Applicable Legal Standards, FY 2003 40 Figure 12: Number of Placements for Children Exiting Foster Care in Three States, FY 2003 42 Figure 13: Percentage of Children Exiting Foster Care in FY 2003 by Reunification in Four States 43

April 4, 2005

The Honorable Tom DeLay Majority Leader House of Representatives

The Honorable Wally Herger Chairman Subcommittee on Human Resources Committee on Ways and Means House of Representatives

The Honorable Pete Stark House of Representatives

In the 1960s and 1970s, American Indian children were roughly six times more likely to be separated from their families and placed in foster care than other children and many were placed in non-American Indian homes or institutions. A lack of understanding of tribal cultures and child-rearing practices by state child welfare agencies and courts was a significant factor in this widespread removal of American Indian children from their homes. In 1978, the Congress enacted the Indian Child Welfare Act (ICWA) (Pub. L. No. 95-608) to protect American Indian families from the unwarranted removal of their children and to give tribes a role in making child welfare decisions for children subject to the law. According to the most recently available HHS data, American Indian children represented about 3 percent of the over 800,000 children who were in foster care in fiscal year 2003. The Census Bureau estimates that American Indian children comprised 1.8 percent of the total U.S. population under the age of 18 in 2003.

ICWA established criteria for determining whether the tribe or the state should have custody of a child and make placement decisions. Specifically, ICWA gives tribes exclusive jurisdiction for tribal children who reside on a tribal reservation (unless a state has previously been given jurisdiction by federal law) and gives both states and tribes jurisdiction for tribal children who do not live on the reservation. In addition, ICWA established requirements for child welfare proceedings involving an American Indian child in state custody. For example, whenever state officials are concerned about the possible abuse or neglect of a child who is, or is eligible to be, a tribal member and seek custody of

United States Government Accountability Office Washington, DC 20548

the child, ICWA requires that the tribe be notified of any court hearings involving the child and given the right to intervene in the proceedings. In addition, the law requires that efforts be made to place children subject to ICWA with relatives or tribal families, unless a good reason exists not to follow these placement preferences. While ICWA did not explicitly grant any federal agency oversight authority regarding states’ implementation of ICWA, the Department of Health and Human Services’ (HHS) Administration for Children and Families (ACF) monitors state compliance with federal child welfare laws.

Proponents of ICWA believe that the law promotes the well-being of American Indian children by keeping them connected to their families, tribes, and cultural heritage. Others are concerned that ICWA’s procedural requirements could result in American Indian children staying longer in foster care than they would in the absence of the law, working against the goals of more recent child welfare legislation. In 1997, the Congress enacted the Adoption and Safe Families Act (ASFA) (Pub. L. No. 105-89) to help states more quickly move children in foster care to safe and permanent homes. One key provision of the law requires states, with some exceptions, to file a petition to terminate parental rights for children who have been in foster care for 15 of the most recent 22 months—a requirement that could conflict with the belief expressed by many tribes that a parent’s relationship with a child can never be severed.

Because of your interest in how ICWA affects the foster care experiences of children subject to the law, as well as how ICWA is working in conjunction with ASFA, we examined the following: (1) the factors that influence placement decisions for these children, particularly as they relate to ASFA’s goals of safety, permanency, and well-being of children; (2) the extent to which delays, if any, have occurred in the foster or adoptive placement of children subject to ICWA due to issues related to the implementation of ICWA and how any such delays have affected children’s experiences in care; and (3) the federal government’s role in overseeing states’ implementation of ICWA. We have not included information about children who are under exclusive tribal jurisdiction because they reside on a reservation.

To answer these questions, we surveyed state child welfare agency officials in all 50 states and the District of Columbia regarding their implementation of ICWA and their views on how ICWA’s provisions affected children’s experiences in foster care. We received responses from 47 states and the District of Columbia. We checked for obvious errors and asked some states follow-up questions, but did not independently verify

factors can influence placement decisions similarly for all children regardless of whether they are subject to the law. For example, ICWA requires that children subject to ICWA be placed with relatives, unless good reason exists not to do so, but many states have a similar policy for all children. In both cases, the state may face decisions about whether to change a child’s initial placement when a relative is identified or comes forward after a child’s initial foster care placement. Our survey results from 19 states responding to a relevant question showed that states face decisions to change a child’s foster or adoptive placement with similar frequency, regardless of a child’s ICWA status. Decisions about how children subject to ICWA leave foster care are also influenced by how well states and tribes work together to blend ICWA and ASFA requirements for moving a child through the foster care system. While cultural beliefs of many tribes conflict with ASFA’s provision to move a child to adoption within certain time frames, results from the 15 states responding to a relevant survey question showed little difference in how frequently children subject to ICWA were exempted from ASFA’s provision compared to other children.

Data from four states that could identify children subject to ICWA in their information systems showed no consistent differences when comparing the length of time they spent in foster care compared to Caucasian or other minority children who exited foster care in fiscal year 2003. In two states, these groups of children stayed in foster care for similar periods of time; in Washington, however, children subject to ICWA who exited care were less likely than other children to leave foster care within 2 years, while those in Oregon were more likely to leave foster care within this time period. While not showing consistent differences in the length of time in foster care, data showed some different experiences among children when comparing how often they were moved to different foster homes or how they left the foster care system. For example, children subject to ICWA who exited care lived in a similar number of foster homes as other children in two of the three states having such data, but experienced a higher number of placements in Washington. In addition, while the data from the four states showed that most children who left foster care in 2003 were reunified with their families, children subject to ICWA were somewhat less likely to leave foster care through reunification or adoption, and somewhat more likely to leave foster care through a guardianship arrangement compared to other children.

While ICWA did not give any federal agency direct oversight responsibility for states’ implementation of the law, ACF reviews some limited information reported by states under the agency’s general oversight of

state child welfare systems and its formal assessments of these systems in its Child and Family Services Reviews; however, the information is insufficient for ACF to assess states’ efforts to implement the law’s requirements. For example, while states are required to discuss ICWA implementation in their overall 5-year child and family services plans and in subsequent annual progress and services reports, ACF noted in its 2003 guidance that states were having difficulties reporting on ICWA adherence and reiterated that states needed to provide a description of the specific measures taken to comply with the law. While ACF’s Child and Family Services Reviews have identified some ICWA concerns in states, the structure of this oversight tool was designed to review the overall performance of a state’s child welfare system, rather than any particular law or program. As a result, it does not ensure that ICWA concerns will be addressed or that identified problems will be included and monitored in states’ program improvement plans. For example, our review of 51 CFSR reports showed that 10 reports, generally from states with small American Indian populations, had no discussion of ICWA implementation, while 32 raised some concerns with how the law was implemented in the state, such as caseworkers receiving inadequate ICWA training or not consistently determining a child’s ICWA status. Similarly, our review of 47 improvement plans provided by ACF as of December 2004 showed that 12 of the 32 states with ICWA implementation concerns identified during the CFSR review did not report any planned corrective actions.

To improve the usefulness of the information states are required to provide on their ICWA compliance efforts, we are recommending that the Secretary of HHS direct the Administration for Children and Families to review ICWA implementation information available through the CFSRs and require states to discuss in their annual progress and services reports any significant ICWA issues not addressed in their program improvement plans. In addition, ACF should consider using the information on ICWA implementation in the Child and Family Services Reviews, annual progress reports, and program improvement plans to target guidance and assistance to states in addressing any identified issues. HHS disagreed with our recommendation, stating that it does not have the authority, resources, or expertise to address GAO’s recommendation. Our report recognizes HHS’s limited authority with respect to ICWA and our recommendation offers a way for the agency to assist states within its existing authority and resources as part of its current process for overseeing states’ child welfare systems.

Table 1: Main ICWA Provisions

Definition of a child subject to ICWA ICWA defines a child as Indian if he or she is a member of a federally recognized tribe or if he or she is eligible for tribal membership and is the biological child of a tribal member. A child who has some American Indian blood, but not enough to qualify for membership in a federally recognized tribe, or who is a member only of a state recognized tribe, is not subject to ICWA. Definition of child custody proceedings ICWA applies to the following child custody proceedings: (1) involuntary foster care placements; (2) petitions to terminate parental rights; (3) pre-adoptive placements; and (4) adoptive placements. ICWA does not apply to custody arrangements arising from divorce proceedings or placements by the juvenile justice system when a child commits an act that would be deemed a crime if committed by an adult. Jurisdiction American Indian tribes with active tribal courts have exclusive jurisdiction over child welfare proceedings for an American Indian child who resides on the tribal reservation. States and tribes share jurisdiction over child welfare proceedings involving a child subject to ICWA who does not reside on the tribal reservation. If a tribe or parent requests that a child custody proceeding be transferred to the jurisdiction of the tribe, the proceeding should be transferred to tribal jurisdiction, unless either parent objects to the transfer or good cause exists to not transfer the case. The tribal court has the right to decline any transfer request. Notification and intervention A tribe must be notified about any involuntary child welfare proceeding in state courts involving a child subject to ICWA and has the right to intervene in such cases. A tribe also has the right to intervene in cases in which a parent voluntarily relinquishes custody of a child subject to ICWA, but ICWA does not specifically require that tribes be notified about these cases. Placement in foster care A child subject to ICWA cannot be placed in foster care unless clear and convincing evidence exists that continued custody by the parent is likely to result in serious damage to the child. Placement preferences a An American Indian child placed in foster care or a pre-adoptive placement shall be placed in the least restrictive, most family-like setting in which the child’s special needs, if any, may be met. The child shall be placed within reasonable proximity to his or her home and preference shall be given, absent good cause to the contrary, to a placement with:

1. a member of the child’s extended family;
2. a foster home licensed, approved, or specified by the tribe;
3. an American Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
4. an institution approved by a tribe or operated by an American Indian organization that has a program suitable to meet the child’s needs. When placing an American Indian child for adoption, preference shall be given, absent good cause to the contrary, to a placement with:
5. a member of the child’s extended family,
6. other member’s of the child’s tribe, or
7. other American Indian families. Source: Pub. L. No. 95-608. aStates are prohibited by law from delaying or denying a foster or adoptive placement in order to place a child with a family of the child’s race or cultural background, but children subject to ICWA are excluded from this prohibition. 42 U.S.C. § 1996b.

ICWA also established other requirements for children subject to the law that differ from the requirements that apply to other children in foster care. As shown in table 2, ICWA requires states to provide active efforts to keep American Indian families together and to use more stringent legal standards for placing an American Indian child in foster care and terminating parental rights.

Tab l e 2: Comparison of Legal Standards for Children Subject to ICWA and for Children Not Subject to ICWA

Standard for Children Subject to ICWA Standard for Children Not Subject to ICWA To Prevent Break Up of Family and/or To Reunify Family

ICWA requires states to make “active efforts” to provide services designed to prevent the break up of an American Indian family before an American Indian child can be placed in foster care or the parental rights of an American Indian parent can be terminated. However, the state can place an American Indian child in foster care if the child is in immediate danger and then must make active efforts to reunify the child with the family.

To receive foster care maintenance payments under Title IV-E of the Social Security Act, states must provide reasonable efforts to prevent the need for removing a child from his or her family and to reunify a child in foster care with his or her family. States are allowed to bypass reasonable efforts in certain egregious situations, such as when a parent has subjected a child to torture or sexual abuse. To Terminate Parental Rights Termination of parental rights cannot be granted unless the evidence indicates beyond a reasonable doubt that continued custody is likely to result in serious damage to the American Indian child.

State statutes have a variety of different legal grounds for terminating parental rights on behalf of non-American Indian children. Four of the five states we visited required that the statutory grounds be proven by clear and convincing evidence, a lower standard than required by ICWA. Source: Pub. L. No. 95-608, Title IV-E of the Social Security Act, and state laws. Note: Beyond a reasonable doubt is the highest possible evidence standard and requires proof of such a convincing character that a person would be willing to rely and act upon it without hesitation in the most important of his or her own affairs. To establish a finding by clear and convincing evidence, which is the next highest evidence standard, requires proof that the particular facts are highly probable or create a firm belief that the allegation in question is true.

ICWA also authorizes grant funding to American Indian tribes for operating child and family service programs. In fiscal year 2004, BIA administered an estimated $10.9 million in ICWA grants to tribes. These grants generally range from about $26,000 to $750,000, with the average being $60,000.

While ICWA requires states to provide active efforts to reunify families, ASFA requires states to move children more quickly through the child welfare system. Enacted in 1997, ASFA created fundamental changes in the nation’s child welfare system and established two major goals for all children: (1) to make a child’s safety the most important consideration in child welfare decisions and (2) to compel child welfare systems to make

Interaction of ICWA with

ASFA

foster care maintenance payments to cover a portion of the food, housing, and incidental expenses for all foster children whose parents meet certain federal eligibility criteria and for whom certain judicial findings have been made. States can also be reimbursed for related administrative and child placement costs, including the recruitment and licensing of foster homes. Title IV-E also provides payments to adoptive parents of eligible children with special needs that can make it difficult for a child to be adopted, such as emotional, physical, or mental disabilities; emotional disturbance; being older than an age specified by the state; or being a member of a minority race. Under current law, ACF cannot provide Title IV-E funds directly to tribes. Some states have, however, established agreements with tribes to distribute Title IV-E funds to the tribes for tribal children who meet the Title IV-E eligibility requirements. As of June 2001, according to one study, 14 states and 75 American Indian tribal governments had Title IV-E agreements in place nationally.^1

To receive funds from Titles IV-B or IV-E, a state child welfare agency (or a tribe receiving Title IV-B funds) must submit the following reports, which are reviewed by ACF regional staff for compliance with all reporting requirements:

• A 5-year child and family services plan (5-year plan) that describes the state’s goals and objectives with regard to the needs and well being of children and families and the scope and adequacy of services available for children and families.
• A description, developed in consultation with tribes and tribal organizations, of the specific measures taken by the state to comply with ICWA, which must be included in the state’s 5-year plan, as required by amendments to the Social Security Act enacted in 1994 (Pub. L. No. 103-432).
• An annual progress and services report (APSR) to discuss the state’s progress in meeting the goals outlined in its 5-year plan and to revise the 5-year plan goals if necessary.

In 2000, ACF established a new federal review system to monitor state compliance with Titles IV-B and IV-E requirements. One component of this

(^1) See Eddie F. Brown and others, “Using Tribal/State Title IV-E Agreements to Help

American Indian Tribes Access Foster Care and Adoption Funding,” Child Welfare , vol. LXXXIII, no. 4 (2004).

system is the CFSR, which assesses state performance in achieving safety and permanency for children, along with well-being for children and families. The CFSR process includes a self-assessment by the state, an analysis of state performance in meeting national standards established by HHS, and an on-site review by a joint team of federal and state officials. Based on a review of statewide data, interviews with community stakeholders and some families receiving services, and a review of a sample of 50 child welfare cases, HHS determines whether a state achieved substantial conformity with: (1) outcomes related to safety, permanency, and well-being, such as keeping children protected from abuse and neglect and achieving permanent, stable living situations for children; and (2) key systemic factors, such as having an adequate case review system and an adequate array of services. States are required to develop program improvement plans to address identified shortcomings. ACF conducted its first state review in March 2001 and completed on-site reviews in all 50 states and the District of Columbia by March 2004. States found to be operating in substantial conformity with Titles IV-B and IV-E must complete a full CFSR every 5 years, while states that are not in substantial conformity must begin a full CFSR review two years after approval of their program improvement plans.

ICWA provides BIA with responsibility for administering grants to tribes for a variety of child welfare purposes and assisting states in identifying the tribal affiliation of a child upon request. However, BIA has no oversight authority in terms of how state child welfare agencies or state courts implement the law for American Indian children in state custody.

According to Census estimates for 2003, approximately 4.4 million people in the United States report having some American Indian heritage, comprising 1.5 percent of the total population. This population includes individuals who may not be members or eligible for membership in a tribe, as well as individuals who are members of state recognized tribes. As shown in figure 1, the American Indian population is heavily concentrated in the West. In some cases, tribal members live in the same state as their tribe’s reservation, and may live on or near the reservation. In other cases, tribal members live in states other than those where the tribe’s lands are located. In other words, while a tribe’s land may be located in a particular state, tribal members may live in many states around the country.

American Indian

Demographics and Tribal

Membership Requirements

state.^2 In 23 states, for example, American Indian children represented less than 1 percent of all children served in foster care in fiscal year 2003. In five states, however, at least one-quarter of the foster care population was American Indian, as shown in table 3. In addition, while Oklahoma and California reported serving over 3,000 American Indian children in foster care in 2003, Delaware, Vermont, and the District of Columbia reported serving fewer than five American Indian children each.

Table 3: States with (1) Highest Percentage of Children Served in Foster Care Who Are American Indian and (2) Highest Number of American Indian Children Served in Foster Care, FY 2003

Percentage of children served in foster care who were American Indian

Number of American Indian children served in foster care State Percentage State Number Alaska 62 Oklahoma 3, South Dakota 61 California 3, Montana 35 Minnesota 2, North Dakota 30 Alaska 1, Oklahoma 25 Washington 1, Minnesota 15 South Dakota 1, New Mexico 13 Oregon 1, Washington 11 Montana 1, Nebraska 9 Nebraska 825 Idaho 9 Arizona 798

Source: AFCARS data from HHS’s Children’s Bureau.

Not all American Indian children who enter foster care are subject to ICWA. In Washington, for example, of the 1,690 American Indian children identified in foster care in fiscal year 2003, the state reported that about 450 were subject to ICWA. American Indian children are only subject to ICWA if they are members of, or eligible for membership in, 1 of the over

(^2) However, previous GAO work indicates that the race and ethnicity data reported in AFCARS are not always accurate. See GAO, Child Welfare: Most States Are Developing Statewide Information Systems, but the Reliability of Child Welfare Data Could be Improved , GAO-03-809 (Washington, D.C.: July 31, 2003). In addition, while AFCARS data do not usually include American Indian children in tribal custody, these children are included in the AFCARS data for some states, affecting the comparability of state data on American Indian children. For example, when a tribe receives Title IV-E payments for children in tribal custody, these children are also included in a state’s AFCARS data.

500 federally recognized tribes. Federal recognition means that a tribe is formally recognized as a quasi-sovereign entity with a government-to- government relationship with the United States. With federal recognition, tribes become eligible to participate in federal assistance programs and can be exempt from state and local jurisdiction. About 40 other tribes are recognized by individual states, while other American Indian communities are not formally recognized as tribes by the United States or any individual state; children from these tribes are not subject to ICWA. Thirty-four states, most of which are located in the western portion of the United States, have federally recognized tribes. Five states, generally located in the eastern half of the country, have state recognized tribes, but no federally recognized tribes. Twelve states, also in the eastern half of the country, have no federally or state recognized tribes.

As quasi-sovereign entities, tribes establish their own membership requirements, which can vary considerably, as shown in table 4. Two common conditions for enrollment are lineal descendency from a person named on a tribe’s historical membership list (sometimes known as a “base roll”) or a minimum amount of tribal blood (known as blood quantum). For example, to be eligible for membership in the Navajo Nation, individuals must have at least ¼ Navajo blood, meaning that they may have one grandparent who is full-blooded Navajo or two grandparents who are each half Navajo. Other conditions may include residing on the tribe’s reservation or having continued contact with the tribe.