Indian NMDs Under The Indian Child Welfare Act (ICWA)

There are unique circumstances regarding the Indian youth that impact the content of their case plans. The following factors are:

Continued application of the ICWA in the EFC Program,
Indian Youth’s right to withdraw from ICWA standards after 18,
Participation plan requirement,
Placement options for Indian Youth,
Funding and eligible criteria for Indian youth, and
Indian Youth under a Tribal Title IV-E Program.

Continued Application of the ICWA in the EFC Program

Indian youths who remain under the jurisdiction of the state dependency court, and who meets the criteria of a NMD, will continue to have the ICWA standards apply to his or her case. If a tribe has been involved in an Indian youth’s case as a minor the tribe will continue to be involved in the NMD’s EFC case plan.

If an Indian NMD has exited foster care but has chosen to re-enter, ICWA will apply if he or she has previously been determined to be covered by ICWA or if identified as covered by ICWA upon re-entry.

Indian Youth’s Right To Withdraw From ICWA Standards After 18

Withdrawing from being defined as “Indian child” does not require or mean disenrollment from the Indian youth’s tribe, nor does it affect an Indian youth’s tribal membership. Indian youth should not be encouraged or pressured to withdraw from ICWA. The consequences of disenrollment from tribal membership can be lifelong, and youth could be adversely affected in their tribal rights and other entitlements.

The NMD must be informed of the implications of withdrawing from ICWA that include the following:

There will be less or no involvement by their tribe in their case plan, and
The youth’s tribe would no longer have a formal role in court proceedings.

Should an Indian youth at a later date, request again to be defined an Indian child, ICWA standards would apply and the tribe would assume a formal role in any related court proceedings.

Participation Plan Requirement

As with all other youths seeking participation in the EFC Program, an Indian youth as a condition of participation must sign the Mutual Agreement (SOC 162) and meet the participation requirements under the EFC program. The only addition is that the case plan must be done in collaboration with the Indian youth and in consultation with the youth’s tribe.

Placement Options and Re-Entry For Indian Youths

Placement options and the process for re-entry are the same as youths in the EFC. In addition, Indian NMDs may also be placed in a Supervised Independent Living Program (SILP) that is approved in the collaboration with the youth’s tribe. As a best practice, it is suggested that the county consider a Memorandum of Understanding (MOU) or other forms of a written agreement between the county and the tribe specifying the county’s responsibility for supervision and monthly contact with the youth.

Funding And Eligibility Criteria For Indian NMDs

Indian youths may present some unique issues as it pertains to per capita distributions made for tribal members. Depending on a tribe’s distribution criteria, tribally based financial distributions (e.g. gaming or trust funds) may become available to the youth upon reaching the age of majority. However, it is possible the funds may not be available. Tribal distributions may differ and must be reviewed by the assigned SW/PO on a case by case basis. When the funds are not available to the NMD they cannot be included as a resource.

PAYMENTS EXCLUDED OR EXEMPT FROM CONSIDERATION AS INCOME:

Funds distributed per capita or held in trusts for members of any Native Indian tribe,
Income the funds of Native American Indian tribes including interest earned from investments income derived from funds when they have been:
- Distributed from the Secretary of the Interior on a per capital basis; or
- Held in trust by the Secretary of the Interior.
Up to $2,000 in any 12 consecutive month period, the income of individual Indians when such income is derived from individually owned interest in trusts or restrict lands.
Distribution to a household, individual Native or descendant of a Native when received from a Native Corporation established pursuant to the Alaskan Native Claims Settlement Active (ANCSA). Exempt distribution include:
- Cash (including cash dividends on stock received from a Native Corporation) to extent is does not exceed $2,000 total person per annum, stock, a partnership interest, land or interest in land, and interest in a settlement trust.

There are additional federal laws that may preclude consideration of certain types of distributions. The youth’s financial situation will need to be assessed on a case by case basis.

NMD Indian Youth Under A Tribal Title IV-E Program

Some tribes have entered into Title IV-E agreements with the State of California which enable the tribes to establish child welfare programs that can draw down federal Title IV-E funding. These programs are authorized to establish and provide EFC Programs consistent with the federal requirements under the AB 12 program.