Due for reauthorization in the 107th Congress, the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996 (Pub. L. 104-193), better known as Welfare Reform, represented a major change in federal policy concerning assistance to poor families and children. Responding to the widespread belief that people who could work should do so, PRWORA refocused on moving people away from cash assistance and into work. The law capped federal spending for the primary cash assistance program serving poor families and children, ending the Aid to Families with Dependent Children (AFDC) program. Under the newly established Temporary Assistance for Needy Families (TANF) program, which replaced AFDC, poor families are required to work and are no longer entitled to assistance; most families can receive federal cash assistance for no longer than 60 months. Although with fewer resources than state governments, PRWORA also offered tribal governments the unprecedented opportunity to administer TANF.

While these changes dramatically altered the provision of services to poor families and children throughout the country, tribal communities have particularly and uniquely been affected by welfare reform. Specifically, many tribal communities suffer from disproportionate poverty rates; remote, rural geography; inaccessibility of services and high cost of service delivery; lack of economic base; inadequate training, job opportunities, and support services; and lack of facilities and infrastructure. Tribes also face challenges in coordinating tribally-provided and state-provided services, as there are still various related programs that tribes do not have the authority to administer directly. Beyond the commitment of the federal government to provide a safety net for all low-income families, the United States government has also made unique commitments of a higher order to Indian tribes in treaties and laws. In exchange for millions of acres of ceded lands, the United States government has an obligation to provide for the health, safety and welfare of tribal communities beyond the implementation of welfare reform.

Since Welfare Reform was enacted, every tribe has dealt with the many challenges which PRWORA presents to tribal children, families and communities. Tribes commonly provide child care, employment, training, education and a variety of social services to needy Indian people within their service areas. Many of these services are funded through Indian programs authorized under PRWORA. In addition, tribes devote a significant amount of the other federal resources they receive under other statutes to dealing with welfare reform requirements. Some tribes also provide services to their people on public assistance through grants and contracts from state government agencies. Many tribes have adopted new and innovative approaches to restructuring and integrating their services, in part using the opportunities under Pub. L. 102-477, to better serve their needy families. Pub. L. 102-477, the Indian Employment, Training and Related Services Demonstration Act of 1992 allows tribes to integrate the employment, training and related services they provide in order to improve effectiveness of services, reduce joblessness and serve tribally-determined goals. In effect, tribes can use Pub. L. 102-477 to co-locate services and streamline eligibility processes, providing recipients with one-stop shopping.

To date, thirty Tribal TANF plans, serving 158 tribes, have been approved. Two-hundred and fifty-seven Tribal Child Care grantees, serving over 500 tribes, have received $71 million, approximately 2 percent of the federal Child Care Development Fund. Four tribes run Child Support Enforcement programs. Seventy-eight tribal grantees administer the Native Employment Works program, and 86 tribes administered $5 million in Welfare-to-Work grants.

Tribal governments have shown great enthusiasm for operating new programs and for re-designing service delivery systems. While struggling with limited resources and the lack of employment opportunities on reservations, tribes have made great strides in offering coordinated, holistic support services to their tribal members. Tribal governments have made assistance programs and support services far more accessible to their communities than ever before. Tribes have also begun to take advantage of the opportunity to become directly involved in the administration of child support enforcement programs.

Tribal governments maintain that welfare reform is not only a policy but a process as well. Tribes must have the same opportunity as states-to design programs, to modernize and customize services that are flexible and responsive to individual client needs.

I. VISION STATEMENT

American Indian and Alaska Native tribal governments are committed to:

· Strengthening tribal families,

· Protecting the interests of tribal children,

· Promoting family self-sufficiency,

· Substantially reducing dependence on public assistance, and

· Developing economically prosperous and culturally thriving tribal communities.

For generations, poverty has been prevalent in many Indian communities, in part a result of past federal policy. Any formula to reduce public assistance and develop economically viable tribal communities must include a substantial, strategic investment in Indian and Alaska Native communities. A dual investment strategy dictates both an investment in critical supports for individual Indian families and for tribal communities.

II. GUIDING PRINCIPLES

In the reauthorization of programs covered by PRWORA, tribal governments have advanced five guiding principles that are essential in helping Tribal families in reservation and other Tribal communities to become self-sufficient. Any legislation that is considered should:

· Provide funding directly to tribes based on a government-to-government relationship.

· Be adequately funded to meet tribal needs, including funding for capacity building and special needs.

· Have the flexibility to serve the needs of a wide variety of persons on welfare, transitioning off welfare or at risk of becoming dependent on cash assistance. Policies should authorize tribes to provide any types of services and activities that they consider effective in furthering self-sufficiency.

· Include education, job creation, and economic development components.

· Provide a structure to encourage diplomatic relations and constructive cooperation between tribes and states.

· Clarify that reduction of poverty is a goal of welfare reform.

III. SPECIFIC PROGRAM GOALS

Out of the many social programs authorized by the Social Security Act, it is difficult to predict all those that will be addressed by PRWORA reauthorization. Of the programs that expire in 2002 and will certainly be included in the reauthorization, four categories of programs authorize funding directly to tribes: TANF, Employment and Training programs (Native Employment Works and Welfare-to-Work), the Child Care Development Fund, and the Child Support Enforcement program.

In addition to these currently authorized programs, there is a major unmet need in Indian Country for an economic development initiative which would serve to create permanent, unsubsidized employment opportunities into which welfare recipients could move as they transition off assistance and to prevent welfare receipt in the first place.

Finally, Indian families and their tribes have an important stake in several general provisions of PRWORA which control state TANF and other services. At this point in time, the majority of Indian TANF recipients are still clients of state, rather than Tribal TANF services.

· Tribal Temporary Assistance for Needy Families (TANF) Program

Section 412 of Title I authorizes the direct funding of TANF to federally- recognized American Indian tribes and 12 regional non-profit corporations and Metlakatla in Alaska. Almost five years after the passage of PRWORA, 34 Tribal TANF plans, serving 171 tribes in 15 states have been approved by the U.S. Department of Health and Human Services. Over $86 million in Tribal TANF grants will be awarded in FY 2001. Because tribes can apply to administer TANF at any point in time, the number of tribal grantees is increasing, despite the limited resources that tribes are afforded. Nonetheless, many tribes are prohibited from administering a Tribal TANF program because of the lack of sufficient funding.

Tribes have identified a number of important PRWORA amendments that will be critical to the success of Tribal TANF programs.

First, the Tribal TANF funding formula should ensure that resources sufficient to meet tribal needs are available and provide no less than former resource levels under state AFDC programs. The Tribal TANF funding formula should offer tribal grantees options (similar to those that states have) that will allow them to select a funding formula that benefits their individual program. Tribes should have access to funding levels, incentive bonuses and contingency funds as states do. Adequate planning, start-up, administrative and support service funding are equally important.

Second, consistent with the discretion that states have in establishing their eligibility criteria, Tribal TANF grantees should continue to have the flexibility to distinctly define their service area and service population.

Third, in the interest of integrated, consumer-oriented service delivery, tribal governments administering TANF should have the option of making eligibility determinations for other related support programs, including Medicaid and the Children's Health Insurance Program. Tribes should be eligible for direct funding under the Title XX Social Services block grant program, Food Stamps and Title IV-E foster care assistance. Moreover, in order to enable tribal governments to administer these programs (and others such as the Access to Jobs and Reverse Commute programs), matching fund requirements should be waived. These related programs are vital to the success of welfare participants in gaining access to support services, such as transportation, mental health, substance abuse, and domestic violence services, that they need to move from welfare to work.

Fourth, the TANF reporting requirements in Section 411 were written for states, not tribes. They are unnecessarily burdensome to tribes wishing to assume the responsibility for administering the TANF program. The Secretary of HHS should be given the discretion to develop, in consultation with tribes, reporting requirements appropriate to tribal circumstances. Tribes should also be assisted in acquiring MIS technology to track services to their recipients, as states were for a number of years. Ultimately, with adequate financial support, tribally-driven program evaluation and policy research will yield the development of appropriate reporting systems and requirements.

Fifth, there are two sections of PRWORA that treat Alaska Native tribes differently than the tribes in other states. The first is Section 419(4)(B), which provides a special definition of "Indian tribe" for Alaska to include only the 12 regional non-profit corporations, with no reference to the federally-recognized tribes in Alaska. The second is Section 412(h), which requires that Tribal TANF programs in Alaska to be "comparable" to the state-operated TANF program. Tribal implementation of TANF in Alaska has shown that neither provision is needed and unduly restricts tribal programming. These provisions hinder self-determination and the ability of tribes in Alaska to make tribal-specific program decisions. Therefore, these Alaska-specific provisions should be removed in the reauthorization process, allowing Alaskan tribes to be treated as tribes in other states.

· Employment and Training Programs

Employment and training programs play a critical role in moving families toward self-sufficiency. The two primary tribal employment and training programs authorized in PRWORA are the Native Employment Works (NEW) program and the tribal component of the Welfare-to-Work program. Nationally, 98 tribes, Alaska Native organizations and inter-tribal consortia receive direct federal funding under either the tribal component of the Welfare-to-Work (WtW) program, the Native Employment Works (NEW) program or both. About one quarter of these tribes currently operate their own Tribal TANF programs. The remainder do not.

A significant number of tribes have already exhausted their WtW funds, a total of $15 million a year, which were only provided in FY 1998 and FY 1999. These tribes have had to substantially reduce the employment and training support they have been providing to tribal families on TANF. Funding for the NEW program, only $7.6 million a year, expires with the end of PRWORA at the end of FY 2002. Only tribes who formerly administered the JOBS program are eligible for NEW program funding. This limitation on what tribes can receive NEW funds constrains the ability of many tribes who have taken over TANF as well as many tribes who would like to assume TANF to meet the employment and training needs of their families. Through the Indian and Native American Employment Training Coalition, tribal employment and training grantees have outlined five major goals for reauthorization.

First, an employment and training program providing federal funding directly to tribes and based on a government-to-government relationship is absolutely essential in helping Tribal families in reservation and other Tribal communities to become self-sufficient. Acting with very limited resources, tribes have made a major effort to assist their families in meeting the work and other requirements of welfare reform. Tribes have done this even when the state remains responsible for TANF and other welfare services.

Second, tribal employment and training services must be adequately funded. This involves combining the funding levels available in the NEW program and in the tribal component of WtW. In addition, funding should be provided for tribes that have not been able to enter either program. Additional resources should be provided for special needs, like capacity building, listed below.

Third, tribal employment and training services must have the flexibility to address the needs of a wide variety of persons on welfare, transitioning off welfare or at risk of becoming dependent on cash assistance. Tribes have also tried to develop special services for youth, including teen parents, and for non-custodial parents. Any future tribal employment and training services for welfare recipients should encourage tribes to choose to target these kinds of clients.

Fourth, the program should authorize tribes to provide whatever types of services and activities that they consider effective in furthering self-sufficiency. One of the most significant characteristics of tribal programs is their focus on each individual participant and addressing that participant's barriers to employment, whatever they happen to be. Federal funding should respect the ability of tribes to provide the entire range of activities that insure that each participant's needs can be met in a culturally-relevant, family-focused, holistic way based on individual tribal customs and practices. Many tribes have found that the ability to integrate their welfare reform-related services with other services through the Pub. L. 102-477 initiative has been the key to more and better services for welfare recipients.

Fifth, in addition to the money for basic client services, there should be additional funding available for a number of program support functions, such as capacity-building, management information systems development, research and evaluation.

A program consistent with these principles would provide a single funding stream, combining and expanding the resource levels which have been available in the NEW and WtW programs, along with support for tribes that have not been able to access those resources under current law. The combined program would have the flexibility described above and include the relevant program support functions. Administration through the Indian office in the Labor Department would enable a closer integration of this proposed program with related tribal workforce development efforts funded through other statutes.

· Child Care Development Fund

In FY 2000, 257 tribal Child Care Development Fund (CCDF) grantees (representing some 500 tribes) have received $71 million combined in mandatory and discretionary funds, approximately 2% of the CCDF. Since August 1997, tribal grantees have used over $24 million of CCDF funds for the construction and renovation of 70 child care facilities. Tribal child care programs also provide employment, training for child care providers, monitor health and safety standards, and provide a modest source of economic opportunities on reservations.

In looking toward PRWORA reauthorization, tribal child care grantees, as represented by the National Indian Child Care Association (NICCA), have set forth six primary goals for the reauthorization of CCDF.

First, consistent with the government-to-government relationship, tribes must continue to receive funding directly from the federal government to provide child care services. Because of limited tribal resources and the high percentage of tribal families residing in urban areas, tribal children should continue to be dually eligible for child care services from both state and Tribal CCDF programs.

Second, the 1-2 percent (based on DHHS Secretarial discretion) tribal CCDF set-aside has remained the same over the past 4 years, with the Secretary of HHS consistently allocating the full 2 percent. During this time, demand for services rendered by Tribal CCDF programs has increased. Greater demands for child care are being placed on Tribal child care programs as a result of increasing population, increasing employment and education opportunities, and the time line for TANF as well as the higher poverty rates.

States have the option of using federal TANF dollars and unlimited amounts of state TANF matching dollars to their state CCDF program. In contrast, a large majority of tribal CCDF grantees do not administer TANF and do not have other resources to supplement their child care programs. Even those tribes that administer TANF do not have the financial ability to use TANF child care, because of other demands on TANF dollars, including providing cash assistance and addressing administrative start-up costs. Tribes advocate for an overall increase in the CCDF allocation and for amending PRWORA to set aside a minimum of 5 percent of the total CCDF appropriation for tribal grantees.

Third, as sovereign governments, American Indian/Alaska Native Tribal CCDF grantees should have the opportunity to develop their own minimum Health and Safety Standards rather than being forced to adopt federal standards. Tribal entities should be the final authority on what types of issues need to be addressed to ensure the health and safety and licensing requirements that allow each state maximum flexibility in developing child care programs and policies that best suit the needs of children and parents within such state. Tribal governments should be afforded that same flexibility. One set of health and safety standards do not exist for 50 states. It is unrealistic to think that one set of standards is going to be appropriate for 257 tribal grantees.

Fourth, the implementation of any new, yet-to-be-finalized federal health and safety standards will place a new burden on tribal programs and families that utilize tribal child care services. Additional funding, beyond the 2-5 percent tribal CCDF set aside should be appropriated to ensure that the level of services does not decrease with the implementation, monitoring and enforcement of the standards.

Fifth, tribal programs currently have the option of allocating a portion of their CCDF funding for the construction or renovation of child care facilities if such an allocation does not reduce the level of current services offered by the tribe. Such an option for construction should continue and exceptions to the criteria (so long as such an allocation does not reduce the level of services) should be made if the level of funding from the government decreases or justification of long-term goals is DHHS approved. Construction can be key to meeting the health and safety standards; the cumbersome construction application process should also be streamlined.

Finally, PRWORA currently states that child care centers must have at least 25 percent of the enrolled children or 25 percent of the licensing capacity receiving Title XX assistance before the center is eligible for the Child and Adult Care Food Program (CACFP). Tribal grantees do not receive Title XX funds. Therefore, tribal children do not count towards the eligibility determination for participation in the food program. Tribal children in private child care centers that are receiving tribal subsidies should have access to the CACFP. The law should be amended to read, … "a private organization can participate in the food program if at least 25 percent of the enrolled children meet income eligibility guidelines established by the Child and Adult Care Food Program (CACFP)."

· Child Support Enforcement Program

PRWORA allowed tribes to directly receive Title IV-D Child Support Enforcement grants for the first time. In FY 1997, DHHS made an administrative decision to fund only 15 tribes to receive Child Support Enforcement (CSE) grants on a demonstration project basis while they promulgated regulations to govern the Tribal CSE program. On December 19, 2000, the comment period on the proposed Tribal CSE regulation ended. Because few tribes actually operate CSE programs now, it is difficult to propose comprehensive amendments (or even identify all the pertinent tribal issues) for CSE reauthorization.

The general recommendations which tribes are asserting are primarily in response to the DHHS proposed regulation. Because PRWORA did not address Tribal CSE programs at any great length, but rather simply authorized tribes to receive direct funding, many of the problems that tribes will have with CSE implementation are due to regulatory and administrative guidelines and not PRWORA itself. In order to make Congressional intent clear to DHHS, tribes are requesting a number of provisions that will clarify issues that DHHS is attempting to regulate.

First and foremost, DHHS has gone beyond the 5 core eligibility criteria set out at Section 455(f) in developing the criteria for direct federal CSE funding. Not only are the new requirements overly burdensome to tribal governments, but it is beyond the statutory authority of DHHS to require the 14 criteria set out in 45 CFR
§ 309.65, which far exceed the 5 core functions listed in 455(f). Rather than providing the extensive documentation proposed to demonstrate a tribal capacity to establish paternity; establish, modify and enforce support orders; and locate absent parents, PRWORA requires only that tribes assert that they have such capacity. It is not appropriate for DHHS to "approve" all tribal procedures in order to deem tribes capable of operating a Tribal CSE program. This excessive approach provides unreasonable oversight and surpasses DHHS' authority in 455(f).

Contrary to PRWORA, the regulation also limits the direct funding of Tribal CSE programs to Indian tribes that have a minimum of 100 children under the age of majority as defined by tribal law or code and within their jurisdiction. Tribes strongly oppose this restriction on tribal self-determination. DHHS' concern with the economics of establishing CSE infrastructure is clear, but this provision flies in the face of tribal self-determination. Tribes consistently make fiscal decisions that serve to benefit them, and often form consortia when they see fit. Currently, many of the TANF tribes in southern California are served through consortia that the tribes formed of their own volition. Tribes do not need rigid population requirements imposed on them. Such a requirement discriminates against small tribes and denies some tribes that administer Tribal TANF programs the opportunity to administer CSE programs. It is wholly inappropriate for the federal government to require tribes with fewer than 100 children in their jurisdiction to form consortia in order to administer a Tribal CSE program. DHHS imposition of such a requirement would not be consistent with statute and section 455(f).

The proposed funding formula should be altered. This formula should not include a matching requirement; even the proposed 10 or 20 percent non-federal matching requirement would prevent many tribes from administering a CSE program. Tribes support the DHHS recognition that the proposed funding formula should be reconsidered if it "imposes hardship and is disruptive to tribes." The funding for necessary start-up costs and flexibility for tribes to contract for various CSE services with whomever they choose- other tribes, states, or private organizations should also be maintained.

· Resources for Job Creation

Reservation-based economic development and job creation are necessary for welfare reform to succeed. In reauthorizing the programs under PRWORA, the Congress should create a new initiative to provide tribes with dedicated resources to help create permanent, unsubsidized jobs which will benefit public assistance recipients. In addition, tribes assisting Tribal families in moving from welfare to work (whether or not they administer a Tribal TANF program) should have access to increased economic development funding. Many economic development funding streams are not currently available to tribes who do not have Community Development Corporations; PRWORA should include a provision to amend various statutes allowing tribes access to economic development funding. Indian families cannot move from welfare to work if there is no work. One option would be to create an Indian program that supports and promotes job creation for the welfare population.

· Provisions Governing Services to Indian Recipients under State TANF Programs

As the vast majority of tribal communities are still served by state TANF programs, tribes also have a strong interest in a variety of provisions relating to state TANF programs.

States should be required to consult with tribes in the development of their state TANF program. Consultation should be defined in the statute and performance measures should be identified. The term "equitable access" should be defined and made enforceable in current provisions that mandate tribal members not served by a Tribal TANF program have "equitable access" to state TANF programs and services.

Tribes, like states, have a major interest in changes to the definition of "work activities." There should be an increased focus on education, as many studies have shown that education, in combination with work, is likely to yield more qualified welfare "leavers" who are able to secure higher-paying jobs and are more successful in keeping those jobs. Finally, states should have some discretion in the definition of "work." States, like tribes, should have the flexibility to define some subsistence and cultural activities as "work" for the purpose of meeting work requirements.

Since PRWORA was enacted, the TANF rolls have declined sharply. A large portion of the remaining caseload is composed of families with one or more adults unable to work and to successfully enter and remain in the workforce. The reauthorization of PRWORA must enable states and tribes to continue essential cash assistance without arbitrary limits on the duration of assistance or totally inappropriate work requirements for this population. An expansion of the hardship exemption may be one way to deal with this issue, one of the most important in the reauthorization of the TANF program.

Under Section 408 of the Social Security Act, as amended by PRWORA, any month in which a TANF recipient lives in Indian Country or an Alaskan Native Village where 50 percent or more of all adults are not employed does not count toward the applicable time limit on TANF assistance but continues to require TANF recipients to comply with all other program requirements.

The 50 percent threshold rate has proven to be fairly arbitrary. There is no significant difference in the quality of life for Indian families who live on reservations with a 38 percent or 45 percent joblessness rate, instead of a 50 percent joblessness rate. Tribes will propose options for dealing with the 50 percent rate. Tribes feel strongly that cash assistance recipients who comply with all program requirements should not be arbitrarily dropped from assistance because of the lack of available jobs in their communities.

IV. CONCLUSION

Indian tribal governments and Indian families are very committed to the principle of self-sufficiency at both the community and the family levels. We call upon the Congress and the Administration to make the substantial investment necessary to empower tribal governments to build the economic and social infrastructure to move tribal families to self-sufficiency in the short-term, and to make reservations thriving economic communities in the long-term.

NOTE: This working paper was drafted with information developed at a variety of tribal meetings and with substantial input from the NCAI Welfare Reform Task Force. These concepts will be used in the development of legislative proposals for the reauthorization of PRWORA. This paper is a work in progress. Please feel free to contact Sarah Hicks at shicks@ncai.org or (202) 466-7767 with any questions or comments.