[Federal Register Volume 59, Number 9 (Thursday, January 13, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-570]
[[Page Unknown]]
[Federal Register: January 13, 1994]
_______________________________________________________________________
Part IV
Department of the Interior
_______________________________________________________________________
Bureau of Indian Affairs
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25 CFR Part 23
Indian Child Welfare Act; Final Rule
DEPARTMENT OF THE INTERIOR
Bureau of Indian Affairs
25 CFR Part 23
RIN 1076-AC55
Indian Child Welfare Act
AGENCY: Bureau of Indian Affairs, Interior.
ACTION: Final rule.
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SUMMARY: The Bureau of Indian Affairs (BIA) is publishing final Indian
Child Welfare Act (ICWA) grant regulations in response to comments
received during the Notice of Proposed Rulemaking (NPRM) comment period
and in response to recommendations received from numerous Indian
tribes, Indian organizations and other interested parties during a
series of consultation sessions held during 1990-1992. Indian tribes
collectively recommended the conversion of the current competitive
grant award process to a noncompetitive funding mechanism for tribes,
the stabilization of tribal ICWA programs through the provision of
recurring base funding, and the continuation of a competitive award
system for off-reservation Indian organization applicants.
EFFECTIVE DATE: February 14, 1994.
FOR FURTHER INFORMATION CONTACT: Betty B. Tippeconnie, Division of
Social Services, Bureau of Indian Affairs, Department of the Interior,
telephone (202) 208-2721.
SUPPLEMENTARY INFORMATION: This final rule is published under authority
delegated by the Secretary of the Interior (Secretary) to the Assistant
Secretary--Indian Affairs in the Departmental Manual at 209 DM 8. This
final rule, revising regulations which govern the ICWA grant process as
codified at 25 CFR part 23, was preceded by the publication of the NPRM
in the Federal Register on January 12, 1993 (Vol. 58, No. 7), with a
30-day public comment period.
Current regulations provide for the competitive award of ICWA
grants to Indian tribes and off-reservation Indian organizations based
on the BIA's review of applications. In the past, limited
appropriations necessitated the competitive award process. Under this
system, tribes were unable to develop long-range plans and programs due
to the uncertainty of sustained resources. Moreover, administration of
this program was costly and time consuming, because tribes needed to
complete lengthy applications for ICWA grant funds which were then
reviewed and considered by BIA.
In order for the BIA to convert to a noncompetitive grant award
system for tribes, it was necessary to secure sufficient ICWA
appropriations. In FY 1992, the BIA requested a substantial increase in
appropriations for the ICWA grants program so that noncompetitive
awards could be made to tribes. This was explained in the BIA's budget
request and was approved by the Office of Management and Budget,
creating a $16,786,000 program. The FY 1994 ICWA appropriations include
$22,905,000 for Indian tribes and $1,735,000 for off-reservation Indian
organizations. These increased ICWA funds and the revised regulations
will fulfill the BIA's goal to convert to a noncompetitive award system
for all federally recognized tribes, enabling them to access recurring
base ICWA funds via the tribe/agency funding mechanism already in
place. The revised regulations will require all applicants to develop
multi-year comprehensive programs which will reduce the overall burden
on the public and the Federal Government by reducing the amount of
time, resources, and paperwork associated with implementing the current
competitive grant application system and related grant administration
and fiscal activities. Additionally, all program operation activities
will be moved from the headquarters level to the lowest possible level
of decisionmaking, and the appeals process will be streamlined
substantially for all applicants at all levels of government. Thus, the
revised regulations will be less burdensome and more cost-effective,
and efficient.
Although these regulations convert ICWA grants to a noncompetitive
system for federally recognized Indian tribes on reservations, the
competitive award system will be retained for off-reservation Indian
organizations. This is because there will not be sufficient ICWA grant
funds available for noncompetitive awards to all eligible off-
reservation Indian organization applicants.
Fifty-five individual comments and two documents containing
consolidated recommendations and comments were received by February 11,
1993, the closing date of the comment period. The consolidated comments
were the result of meetings facilitated by two BIA area offices. Each
comment was carefully reviewed by a Division of Social Services work
group, which adopted, rejected or developed a modified version of each
recommendation for incorporation into the final rule. Several comments
received after the close of the comment period were not considered.
A number of comments pertained to issues that cannot properly be
addressed in regulations. These comments fell within one of the
following categories:
(1) Matters outside the realm and purview of these regulations that
may be addressed through other means, such as state non-compliance
issues with respect to implementing applicable provisions of the Act,
or special consideration to extend a tribe's service area so that it
may serve tribal members residing in a major urban area;
(2) Proposals regarding distribution methodologies for ICWA grant
funds, such as a distribution based upon where the majority of Indian
populations are concentrated; and
(3) Requests for examples and how they relate to specific
circumstances. Requests for such information and technical assistance
on the application of specific regulations should be directed to
appropriate agency or area office staff.
This final rule is the result of extensive consultation on this
subject matter since 1990. The BIA is committed to tribal participation
in fostering a true tribal-BIA partnership in addressing priority
issues in Indian Country. We have communicated to the Indian
communities in various ways that Indian child welfare services are of
paramount concern and importance to the BIA. The BIA conducted a series
of tribal consultation sessions prior to the publication of the NPRM
revising the current ICWA regulations. The BIA believes that Indian
tribes and Indian organizations have had ample opportunity for
meaningful input into the development of both the proposed and final
regulatory revisions, and options for the distribution of the ICWA
grant funds. The following is a brief synopsis of these activities.
In February 1990, the Acting Deputy to the Assistant Secretary--
Indian Affairs (Tribal Services) called upon each BIA area office
(areas) to establish tribal technical work groups for the purpose of
reviewing the existing ICWA grant process, identifying problem areas,
and making recommendations for improvement. Additionally, each area was
requested to develop a methodology for measuring the impact of ICWA
programs. Working under a tight deadline, the areas convened work
groups and submitted reports suggesting several ways to improve the
capabilities of ICWA programs. In September 1990, the BIA issued an
executive summary of the area reports which contained comments and
recommendations received from tribes and Indian organizations.
Essentially, the collective findings and recommendations of the work
groups addressed the competitive nature of the grant process and the
impacts that unstable, insufficient funding levels have had on the
continuity of programs.
The BIA's Division of Social Services then crafted proposed changes
to 25 CFR part 23, incorporating recommendations contained in the
executive summary, thereby revising the regulations governing the ICWA
grant process. The BIA distributed these draft regulations to the areas
for a second round of consultations in March 1991. Included on the
consultation agenda were ICWA funding-related issues/concerns. Each of
the twelve areas met the challenge and conducted field hearings and
solicited comments on the proposed regulations. Subsequent to these
area consultation sessions, all comments received from tribes and
interested parties were considered and incorporated, to the extent
feasible, into the NPRM.
A third consultation session facilitated by the BIA was held in
Denver, Colorado, in November 1991, for the exclusive purpose of
addressing the development of options for the distribution of the ICWA
grant funds. At this meeting, the BIA made a commitment to continue
tribal consultation on the proposed changes to the ICWA grant process.
Based on recommendations received from tribes in Denver, the BIA
developed nine proposed methods for the distribution of ICWA grant
funds. Consistent with the BIA's government-to-government relationship
with Indian tribes, the BIA, in December 1991, communicated directly
with tribally-elected officials in conducting a preference survey to
arrive at the most preferred option for distributing ICWA grant funds.
Fiscal Year (FY) 1992 ICWA grant funds were distributed to eligible
Indian tribes through a methodology reflective of a combination of
three options most preferred by tribal leadership. Funds were
distributed to 374 tribes and Alaska native villages.
In summary, the BIA has to date demonstrated its commitment to, and
has facilitated the consultative process on behalf of, Indian tribes
and other interested parties with respect to the ICWA regulatory
revisions.
Although the final rule significantly differs in organization from
the NPRM as published, the major components remain intact. Some
sections have been rearranged to better delineate and identify under
one subpart all the applicable sections on the grant application
procedures. Some sections have been consolidated, condensed, or
rephrased for purposes of clarity. After careful consideration of all
comments and recommendations received, sections that were considered no
longer necessary or applicable were deleted. Additionally, the ICWA
grant process has been divided into two different processes: a newly-
designated Subpart C pertains exclusively to Indian tribes and a newly
designated Subpart D pertains exclusively to off-reservation Indian
organization applicants pursuant to 25 U.S.C. 1932. In response to
recommendations received, both processes also have been restructured so
that ICWA grants will be processed by the appropriate BIA agency or
area office. The move in this direction is consistent with BIA policy
that program decisions be made by BIA line officials at the lowest
level of decision-making.
Contingent upon annual congressional appropriations, the purposes
of the final rule remain the same as announced in the NPRM, namely:
(1) To convert the competitive ICWA grant award process to a
noncompetitive award system for eligible Indian tribes;
(2) To promote long-term planning;
(3) To stabilize and provide core funding for tribal ICWA programs,
enabling them to develop, coordinate, and implement comprehensive
Indian child and family service programs;
(4) To provide for off-reservation ICWA programs to continue to be
awarded competitively; and
(5) To establish new requirements for internal evaluation processes
for all grantees.
In all its consultation sessions on regulatory revisions to date,
the BIA has made known publicly its intentions for implementing both
the proposed noncompetitive ICWA grant award system for federally
recognized Indian tribes and Alaska native villages, and the
competitive award system for off-reservation Indian organization
applicants. The following is background information on and the reasons
why the BIA has determined it would develop and implement two separate
grant processes.
(1) Public Law 95-608 statutorily treats federally recognized
Indian tribes and off-reservation Indian organization applicants
differently at 25 U.S.C. 1931 and 1932 respectively. 25 U.S.C. 1931
delineates for Indian tribes eight separate ICWA program activities,
while 25 U.S.C. 1932 identifies four ICWA program activities for off-
reservation Indian organizations. Moreover, under 25 U.S.C. 1931,
tribes may use ICWA funds as non-Federal matching shares for programs
administered under the Social Security Act. This provision is
consistent with entities considered eligible, by other Federal
programs, to apply for and administer Social Security Act programs,
whereas off-reservation Indian organizations are not statutorily
authorized to do so.
(2) The Federal government has a government-to-government
relationship with the sovereign governments of federally recognized
Indian tribes and Alaska native villages as contemplated by Public Law
95-608. Therefore, federal funds for which a tribe is eligible are
distributed directly to the tribe by a Federal Finance System. Once the
revised regulations are implemented, this funds distribution system
will allow tribes quick access to program funds and will reduce the
burden hours heretofore required for the execution and administration
of grants. The Federal government does not, however, have a similar
relationship with off-reservation Indian organizations incorporated
under state law. As a result of these relationships, the BIA may
develop and implement a noncompetitive grant award system for Indian
tribes, while retaining a competitive system for off-reservation Indian
organization applicants.
(3) The Congress has been informed of the BIA's intent to develop
and implement two separate grant award systems, one for Indian tribes
and another for off-reservation Indian organization applicants. Since
FY 1991, the BIA has submitted budget justification documents informing
the Congress of all actions contemplated with respect to the
implementation of the new ICWA initiative and its attendant regulatory
revisions.
(4) Beginning in FY 1993, the Congress earmarked a national
allocation of ICWA funds to be awarded competitively to successful off-
reservation Indian organization applicants. Likewise, Congress
earmarked FY 1993 ICWA funds to be granted noncompetitively to tribal
programs.
(5) Limited funds appropriated and earmarked for the off-
reservation ICWA grant competition precludes the BIA from funding these
organizations noncompetitively, because there would not be enough funds
for all eligible off-reservation Indian organization applicants. Other
concerns inherent in the noncompetitive funding of off-reservation
Indian organization grantees include the fact that there is no fair
manner in which the BIA may fund a select few of the many eligible
organizations. Any preferential treatment given such a select group
would be deemed discriminatory by those organizations not funded.
Considering the limited funds available for successful off-reservation
Indian organization applicants, a competitive award process is the only
alternative available to the BIA.
The decision to continue a competitive award system for off-
reservation Indian organization applicants should not in any way be
construed to mean that off-reservation ICWA programs are valued less
than tribal programs. The BIA recognizes and acknowledges that off-
reservation ICWA programs play an important advocacy role on behalf of
many Indian families residing in urban settings in brokering services
provided by urban agencies/services providers. Off-reservation ICWA
programs oftentimes provide the key link between Indian tribes and
their tribal members residing off-reservation who may be experiencing
crisis situations, particularly those involving involuntary child
custody proceedings in state courts.
During the November 1991 tribal consultation session conducted in
Denver, Colorado, tribes requested that the BIA seek a legal opinion as
to the applicability of the Indian Self-Determination and Education
Assistance Act (Pub. L. 93-638), as amended, to tribal ICWA grant
programs. Tribes recommended and supported the concept of converting
the competitive ICWA grant award process to a noncompetitive award
system for tribes under the authority of Public Law 93-638. Tribes also
recommended that all provisions of Public Law 93-638 be made applicable
to tribal ICWA programs once this conversion materializes. In
particular, tribes sought entitlement to contract support costs for
tribal ICWA programs and eligibility for indirect costs at the tribes'
negotiated rates with the Office of the Inspector General (OIG). Ninety
percent of tribal governments who submitted comments during the NPRM
comment period reiterated their recommendations with respect to the
provision of contract support funds for tribal ICWA programs.
In response to the BIA's request for a legal opinion on behalf of
Indian tribes with respect to the specific issues stated above, the
Department of the Interior's Solicitor for Indian Affairs determined
that there is neither statutory authority nor Indian Self-Determination
regulatory provisions which would permit Title II Indian Child Welfare
Act grant programs to be awarded as contracts to tribes under the
authority of the Indian Self-Determination and Education Assistance Act
(Pub. L. 93-638), as amended.
Pursuant to Public Law 93-638, as amended, tribes are entitled to
contract with the BIA to plan, conduct, and administer all or parts of
any program which the BIA is authorized to administer for the benefit
of Indians. However, grants made under the Indian Child Welfare Act are
not such a program. The BIA can neither operate ICWA programs on behalf
of Indian tribes nor can it assume the operation of such a program in
the event a tribe no longer wishes to operate an ICWA program. Hence,
ICWA grants are not contractible under the regulatory provisions which
implement Public Law 93-638. However, the Solicitor concluded that
there are no statutory or regulatory restrictions on the allocation of
indirect costs to ICWA grants awarded to Indian tribes under section
201 of the Act (25 U.S.C. 1931) at the OIG-negotiated indirect cost
rates.
Therefore, based upon the above Solicitor's opinion, BIA policy,
and subject to the availability of contract support funds, ICWA
contract support costs for tribes may be paid. However, there are no
funds currently appropriated for ICWA indirect costs.
Changes Adopted Due to Comments Received
Comment. A commenter recommended that the purpose statement at
Sec. 23.1 be restated to reflect that these regulations govern the
provision of funding for, and the administration of ICWA programs,
rather than addressing the performance of the Federal government's
responsibilities under the Act.
Response. The BIA agrees with the recommendation, and the purpose
statement at Sec. 23.1 incorporates this recommendation.
Comment. Commenters recommended that several new definitions be
added because they were necessary, or that other definitions be
clarified because they were unclear in meaning. Commenters also
recommended deletion of entire definitions or portions thereof because
they were perceived to be unnecessary, confusing, or irrelevant to the
ICWA grant process. Two commenters recommended the deletion of any
references to status offenses (such as truancy and incorrigibility)
within the definition of child custody proceeding because such language
is not contained in the Act.
Response. The BIA agrees with the rationales provided to add the
following new definitions:
(1) Bureau of Indian Affairs; (2) child custody proceeding, to
clarify that other tribal placements made in accordance with the Act
are included, but that status offenses are excluded; (3) grants
officer, to define the responsibilities of this BIA official; (4) off-
reservation ICWA program, as distinguishable from a tribal government
ICWA program; (5) Title II of Pub. L. 95-608, due to provisions therein
that provide authority for ICWA grant programs; and (6) tribal
government, which now better defines tribal applicants and is
preferable to the definition of ``on- and near-reservation programs,''
as formerly used in the NPRM.
The following definitions are being deleted for the reasons given:
(1) Director, Office of Tribal Services is no longer used in this
rule; (2) indirect costs; (3) indirect cost rate because their
applicability is discussed in 25 CFR part 276, Appendix A; (4) near-
reservation because this term was confusing to those tribes who do not
have designated near-reservation service areas (instead, grants
formerly designated as ``on- and near-reservation'' are redesignated as
tribal government ICWA grants); and (5) unduplicated case count is no
longer used in this rule. A change in the definition of Indian is made
to be consistent with the definition at 43 U.S.C. 1606. Additionally,
clarifying language for purposes of eligibility for ICWA grants under
25 U.S.C. 1932 is being added to the definition of Indian organization.
It is intended that this definition be solely applicable to off-
reservation Indian organizations, not Indian organizations located
within the confines of the geographical boundaries of Indian
reservations.
Comment. Although several commenters agreed with the NPRM policy
statement at Sec. 23.3, emphasizing the provision of prevention and
reunification services, other commenters recommended that the policy
statement be consistent with the Congressional declaration of policy at
25 U.S.C. 1902 (Pub. L. 95-608), and that ICWA programs should be
comprehensive in nature and approach.
Response. The BIA agrees with the above recommendations and has
revised the policy statement to reflect these recommendations, with
emphasis on the design, development and implementation of Indian child
and family service programs to coordinate with, rather than to
supplant, existing programs.
Comment. A commenter inquired as to notification responsibilities,
under 25 U.S.C. 1912, of child custody proceedings in state courts when
the location of the Indian parents, Indian custodians or the Indian
child's tribe is known.
Response. The BIA agrees that current regulations are unclear as to
notification responsibilities under 25 U.S.C. 1912 when the whereabouts
of the Indian parents, Indian custodians or child's tribe are known.
Thus, Sec. 23.11(a) now begins with a new paragraph which specifically
delineates the responsibility of any party seeking to effect a foster
care placement of, or termination of parental rights to, an Indian
child under state law to notify directly, and in a timely manner, the
affected Indian parents, Indian custodians or the child's tribe of such
state court proceeding. For purposes of efficacy and to avoid
duplication of effort, included in this section is a new requirement to
send copies of notices provided in accordance with this section to the
Secretary and the appropriate Area Director. The Secretary has,
heretofore, experienced such duplication of effort.
Comment. Additional tribal comments received on Sec. 23.11 included
exceptions to BIA area offices designated to process ICWA notices in
behalf of said tribes as specified at Sec. 23.11 (c)(1)-(12).
Response. All exceptions to Sec. 23.11 (c)(1)-(12) are
incorporated.
Comment. One commenter requested that more inclusive information be
secured with respect to the notification requirements at Sec. 23.11
(d)(1)-(3).
Response. Notification requirements identified at Sec. 23.11
(d)(1)-(2) are rephrased to be more inclusive, concise, and clear
regarding attempts to secure information on the Indian child's lineal
ancestors.
Comment. A commenter requested clarification as to which agency
pays for court-appointed counsel under section Sec. 23.11 (e)(2).
Response. Language at Sec. 23.11 (e)(2) is rephrased to be
consistent with 25 U.S.C. 1912, which addresses the provision of court-
appointed counsel when a state court determines indigency and payment
for such counsel as authorized by state law. Additionally, language at
Sec. 23.11 (e)(4) is consistent with the new requirement at Sec. 23.11
(a) that the moving party is responsible for providing to the Secretary
and appropriate Area Director copies of ICWA notices sent to the
affected parties pursuant to 25 U.S.C. 1912.
Comment. A commenter recommended that language at Sec. 23.11 (e)(5)
closely follow 25 U.S.C. 1911.
Response. The above recommendation is incorporated at Sec. 23.11
(e)(5) to reflect language in the Act and to give clearer meaning to
this section.
Comment. A commenter suggested that the confidentiality requirement
at Sec. 23.11 (d)(7) be applicable to all parties notified rather than
just BIA officials.
Response. The BIA agrees that the confidentiality requirement is
applicable to all Federal and tribal personnel involved in the handling
of ICWA notices at all levels. This section is revised to reflect this
understanding. The publication of confidential information related to
ICWA notices in tribal newsletters is prohibited as well.
Comment. A commenter recommended that Sec. 23.11(f), which
establishes timeframes within which the BIA must notify the affected
Indian parties and the child's tribe of child custody proceedings, be
consistent with the 15-day requirement established by law.
Response. The BIA agrees, and the timeframe is changed from the 10
days indicated in the NPRM to 15 days as provided for by statute.
Comment. A commenter suggested that the BIA clarify to whom section
Sec. 23.11(g) applies.
Response. This section has been clarified to address participants
in Indian child custody proceedings.
Comment. The Division of Social Services is including at Sec. 23.12
the authority for this provision. A new change provides that the
Secretary or his/her designee shall update and publish as necessary the
names and addresses of tribal agents for service of ICWA notices. This
change is made because the Division of Social Services published in the
March 26, 1993, Federal Register (Vol. 58, No. 57) the most
comprehensive listing ever of designated tribal agents for all
federally recognized Indian tribes and Alaska native villages, and thus
foresees the publication of updated information only as necessary in
the future, rather than on an annual basis.
Comment. The Division of Social Services is adding the word
``involuntary'' to the title heading of Sec. 23.13 and at paragraph (a)
of this section to clarify that the provisions are applicable only to
``involuntary child custody proceedings'' as provided for in 25 U.S.C.
1912 and to be consistent with the title heading in Subpart B.
Comment. The Department of the Interior's Office of the Solicitor
(Indian Affairs) and the Board of Indian Appeals (IBIA) recommended the
incorporation of specific citations they provided with respect to
decisions appealable to the IBIA under Sec. 23.13 (c) and (f). The IBIA
also recommended deletion of the words ``Hearings and'' from the title
in Subpart F as there are no provisions for the conduct of hearings
under this subpart.
Response. The BIA agrees that the citations provided for appeals in
the NPRM were general in nature and that Subpart F contains no
provisions for hearings. Therefore, recommended citations on appeals
are being incorporated into Sec. 23.13 (c) and (f) and the words
``Hearings and'' are being deleted from the title in Subpart F.
Comment. Numerous comments recommended that the entire grant
process be streamlined for both ``on-reservation'' and off-reservation
Indian organization applicants, as well as the establishment of minimum
grant application and grant administration requirements. Commenters
stated that some of the detailed information required for the
submission of grant applications is excessive or redundant; some
sections are considered restrictive; and that the application process
could be streamlined.
Tribes recommended that, in keeping with the BIA's policy on
program operations, the entire grant process be dealt with at the
lowest level of decision-making, in this case by the Agency
Superintendent. Similarly, all comments received from potential off-
reservation Indian organization applicants supported and recommended
that the area offices continue to bear the responsibility for the
conduct of the competitive ICWA grant review and award process for off-
reservation applicants. Tribes also recommended that the ICWA grants be
awarded under the authority of the Indian Self-Determination Act and
regulations. However, for the reason discussed earlier, this is not
feasible.
Response: Although off-reservation Indian organizations presented
their views on why ICWA grants to such organizations should also be
awarded noncompetitively, that is not an alternative for the BIA for
the reasons discussed in the preamble. Some off-reservation Indian
organizations also requested authority to operate the same types of on-
reservation programs operated by tribes. These regulations identify
off-reservation ICWA programs as those delineated by statute at 25
U.S.C. 1932. However, it should be noted that the list of off-
reservation ICWA programs is nonexclusive, provided other program
activities promote and fulfill the intent and purposes of the Act.
Based upon the above comments and as previously discussed, the
grant applications and award processes are dichotomized to address two
categories of applicants: (1) Tribal government applicants (formerly
called ``on- and near-reservation programs''); and (2) off-reservation
Indian organization applicants. Accordingly, tribal applicants formerly
identified at proposed Sec. 23.21 are designated as ``tribal
government'' applicants at a newly established subpart C, and
subsequent references are consistent with this renamed applicant
category. The term ``tribal government'' better defines the tribal
applicants and recognizes the Federal government's government-to-
government relationship with Indian tribes, rather than relating to
tribal ICWA programs on the basis of their locales.
Subpart C includes and sequences all sections applicable to the
noncompetitive tribal government grant application and administrative
processes as published in the NPRM at proposed Secs. 23.21; 23.22;
23.23; 23.24; 23.26; 23.27; 23.28; 23.32; 23.33; 23.42; 23.43; 23.45;
and 23.51, the basic components of which remain intact in subpart C of
the final rule. Tribal government applications will be processed by the
appropriate Agency Superintendent or Area Director.
Likewise, the newly established subpart D delineates the
competitive grant review and award process exclusively for off-
reservation Indian organization applicants. The grant application
process in subpart D has been redirected in response to overwhelming
support for the area offices to continue to conduct the competitive
reviews of off-reservation ICWA applications and make funding
decisions. Thus, off-reservation ICWA applications will be reviewed and
processed in their entirety by the Area Directors, rather than by the
centralized review committee as previously contemplated.
Subparts C and D each identify in one subpart all sections
applicable to each respective applicant.
All general references to the BIA in the NPRM are corrected
throughout this document. Specific BIA officials and/or offices are now
identified.
Subpart C. The following section-by-section discussion of subpart C
of the final rule highlights only those changes or additions made in
response to specific comments/recommendations with respect to the
implementation of this subpart for tribal government applicants. The
rearrangement of those grant application contents and procedures, grant
reporting requirements and other administrative provisions identified
and published in the NPRM at Secs. 23.21; 23.22; 23.23; 23.24; 23.26;
23.27; 23.28; 23.32; 23.33; 23.42; 23.43; 23.44; 23.47 and 23.51, and
which basically remain intact in subpart C of the final rule, will not
be discussed in detail. Applicable sections cited are consolidated and
streamlined for purposes of clarity and efficiency.
Sec. 23.21. Through publication of a Federal Register announcement
at the outset of the implementation of the noncompetitive ICWA grant
award process during which tribal applications will be initially
solicited, the Assistant Secretary will notify eligible tribal
applicants under subpart C of the amount of ICWA funds available for
their ICWA program. The funding levels will be based upon the service
area population to be served. Upon the receipt of this notice from the
Agency Superintendent or appropriate Area Director, tribal applicants
shall prepare and submit a complete ICWA application within the
prescribed timeframe to the Agency Superintendent or Area Director.
Thereafter, it is intended that core ICWA grant funds will be awarded
annually to eligible tribal applicants, provided their ICWA programs
meet the requirements delineated at Sec. 23.23(c).
One political subunit of a tribal government sought recognition as
an eligible tribal applicant, separate from the tribe's governing body.
No change is made because such an exception would permit the receipt
and award of two ICWA grants for the benefit of one tribe.
Sec. 23.22. This section provides a nonexclusive list of ICWA
programs and activities, including tribally designed programs intended
to promote the intent and purposes of the Act. Use of ICWA funds as
non-Federal matching shares is consistent with the new policy
statement. In keeping with the tenets of Indian Self-Determination
policy and to facilitate increased self-determination among tribes,
tribal governments are given the flexibility and latitude they sought
to design, develop, and implement comprehensive Indian child and family
service programs designed to meet community needs. In order to maximize
the impact of available resources, it is intended that ICWA grant
programs funded under subpart C coordinate with and complement similar
Federal, state, local, and tribal programs.
Sec. 23.23. For purposes of clarification in this section and
elsewhere within the regulations, reference is made to the Secretary or
his/her designee to indicate that the Secretary delegates his/her
decision-making authority to other Federal officials.
For the reasons given, references to the following subject matter
are deleted: (1) The verification process for the applicant's service
area population because this determination will not occur annually, but
only during the initial funding phase; (2) all references to preventive
and reunification services, because the current emphasis is on
comprehensiveness, which includes prevention and reunification
services; (3) references to specific employee qualifications/staffing
requirements, plans for regular access to professional services, and
the provision of specialized child welfare services, because it is
expected that applicant staffing plans will address these concerns; and
(4) the discussion on contract support costs and indirect cost rates,
because relevant material on the subject matter is found at 25 CFR part
276, Appendix A.
In order to ensure that grantees comply with title IV of Pub. L.
101-630 with respect to the conduct of character and background
investigations of personnel identified in the statute, grantees are
expected to initiate efforts to conduct the investigations prior to the
actual employment of such personnel and to complete the investigations
in a timely fashion.
The subsections on application contents are restated to define more
clearly the intended comprehensive developmental approach sought and to
better delineate the application requirements. Applicable citations or
explanatory language are provided throughout subpart C where references
are made to existing Federal requirements.
Subpart D. The following section-by-section discussion of subpart D
of the final rule highlights only those changes or additions made in
response to specific comments/recommendations with respect to the
implementation of this subpart for off-reservation Indian organization
applicants.
Similar to the discussion on subpart C, the rearrangement of all
sections applicable to competitive grant application contents and
procedures, grant reporting requirements and other administrative
provisions published in the NPRM at Secs. 23.21; 23.22; 23.23; 23.25;
23.26; 23.27; 23.28; 23.29; 23.30; 23.42; 23.43; and 23.47, and which
basically remain intact in subpart D of the final rule, will not be
discussed in detail. Applicable sections cited are consolidated and
streamlined for purposes of clarity and efficiency.
This subpart is refocused from a centralized review system to a
competitive review of applications by area review committees, under the
direction of the Area Directors. Thus, all references to the Assistant
Secretary and the proposed centralized review system are deleted and
replaced with the area review system.
Sec. 23.31. As previously discussed and in accordance with the
recommendations received from affected applicants, applications under
Subpart D will be solicited in response to periodic Federal Register
announcements and processed in their entirety by the appropriate Area
Director designated at Sec. 23.11 of this part. This designation
clearly identifies for prospective applicants under this subpart which
Area Director processes their applications. Heretofore, this
information was lacking and caused some confusion among applicants as
to where to submit their ICWA grant applications.
Sec. 23.32. Similar to Sec. 23.22, this section provides language
which comports with the Act and the same nonexclusive list of ICWA
programs and activities as those identified in the statute at 25 U.S.C.
1932.
Sec. 23.33. All mandatory application requirements cited herein
were previously identified in the NPRM. However, the timeframe allowing
for the Area Director's certification and subsequent transmittal of an
application to the area review committee is changed from 15 working
days to 5 working days because it is anticipated that fewer
applications will be received under this subpart. The five-day
timeframe, not to be confused with the timeframe for the actual review
and scoring of the application, is deemed sufficient for purposes of
certification of the application contents only.
As in Sec. 23.23, the subsections on application contents are
restated to define better the intended comprehensive developmental
approach sought and to delineate better the application requirements.
Applicable citations or explanatory language are provided throughout
Subpart D where references are made to existing Federal requirements.
For the reasons given, references to the following subject matters
are deleted: (1) The requirement for evidence of tribal support via a
tribal resolution if more than one-half of the applicant's service area
population are members of one tribe. This is deleted because commenters
stated this was an unrealistic expectation and there are other means
available to determine an applicant's service area population; (2) all
references to preventive and reunification services as the current
emphasis is on comprehensiveness which includes prevention and
reunification services; (3) references to specific employee
qualifications/staffing requirements, plans for regular access to
professional services, and the provision of specialized child welfare
services as it is expected that applicant staffing plans will address
these concerns; and (4) the discussion on contract support costs and
indirect cost rates is deleted because relevant material on the subject
matter is found at 25 CFR part 276, Appendix A.
In order to ensure that grantees comply with Title IV of Pub. L.
101-630 with respect to the conduct of character and background
investigations of personnel identified in that statute, grantees are
expected to conduct and complete the investigations prior to the actual
employment of such personnel.
Applicable citations or explanatory language are provided
throughout Subpart D where references are made to existing Federal
requirements. Additionally, personnel/offices responsible for
implementing specific actions/activities are identified.
Sec. 23.34. In accordance with recommendations received from
commenters as discussed earlier, the entire section on the review of,
and decisions regarding, off-reservation applications is changed from a
centralized review system to area reviews. The personnel and offices
identified to carry out the responsibilities as outlined are consistent
with area office organizational structures. The competitive review and
decision-making processes remain the same, except that the entire
process will occur at the area office level.
In response to commenters and to ensure that applications are
reviewed by experienced, knowledgeable reviewers, each area review
committee is chaired by a person qualified by training and experience
in the delivery of Indian child and family service programs.
All funding decisions are made by Area Directors and subject to
appeal procedures under Sec. 23.62.
Sec. 23.35. For purposes of timeliness, the timeframe for Central
Office action is changed from 60 days to 30 days because fewer
competitive applications than in the past are expected to be processed.
This would require less time to distribute available funds to the area
offices.
Subpart E. All applicable general and uniform grant administrative
provisions and requirements are identified herein. New language
reflects considerations given to circumstances where changes might
occur in the future with respect to applicable Federal statute,
regulations, or OMB circulars.
Sec. 23.42. Timeframe requirements for requesting technical
assistance, as well as responses to technical assistance, are deleted.
It is expected that tribes needing technical assistance will request
such assistance to comply with the timeframe for the submission of
tribal government applications as delineated in Sec. 23.21 (b), and
that appropriate BIA personnel will honor in a timely manner such
tribal requests. The timeframe for the receipt of requests from off-
reservation applicants for technical assistance is changed to no later
than 10 days prior to the close of the application deadline. This is
consistent with past experience and, thus, is considered a reasonable
timeframe.
In response to commenters, a new section is added on the provision
of technical assistance in the event a program receives an
unsatisfactory program evaluation.
Sec. 23.43. Consistent with previous changes, authorities for the
approval and execution of grants is changed from the Assistant
Secretary--Indian Affairs to Area Directors for grants awarded under
Subpart D. Likewise, a similar change is made for grants awarded under
Subpart C from Area Directors to Agency Superintendents, where
applicable. The separation of authorities under this section and those
identified in Sec. 23.44 are consistent with current BIA practice.
Sec. 23.44. This section is refocused to grantee responsibility for
achieving programmatic goals, providing assurance that the quality and
quantity of actual program performance conforms to the requirements of
the grant award document and compliance with applicable Federal
requirements. Consistent with current policy and practice, grant
program and fiscal monitoring responsibilities are assigned or
designated by the Area Directors.
Sec. 23.45. Commenters expressed concerns that grants awarded
competitively under Subpart D should be scored and awarded on the basis
of the final form of the grant application received at the close of the
application period. Applicants should identify all subgrants within
their application; thus, the provision for subgrants under Subpart D
was considered unnecessary.
The BIA agrees. Therefore, subgranting procedures will apply only
to grants awarded under Subpart C of this part.
Sec. 23.46 (h). This subsection, formerly identified in the NPRM at
Sec. 23.48 (Penalties), is moved to Sec. 23.46 (h) for purposes of
applicability under this section and an appropriate citation is
provided for said penalties.
Sec. 23.47. Specific timeframe requirements for the receipt of
required reports and other information are changed to reflect reporting
due dates specified in grant award documents. This is a more reasonable
approach than the timeframes imposed in the NPRM.
Sec. 23.47 (c)(1)(iv). This statistical reporting requirement,
mandated by Pub. L. 99-570 since enactment in 1986, is being included
in regulation. To date, the BIA has not had the opportunity to include
this reporting requirement in any regulation.
Sec. 23.47 (c)(2). Language change in this section reflects that
the BIA may negotiate for the provision of other grant-related reports
not previously identified, replacing the NPRM language which stated
that reports would be submitted in response to requests from OMB or the
Congress.
Sec. 23.47 deletions. Commenters regarded the following
requirements as unnecessary: (1) Calculating program unit costs; (2)
quantification of program outputs; and (3) specific recordkeeping
requirements for the maintenance of client case records. The BIA agreed
that numbers 1 and 2 were unnecessary and deleted them. However, the
specificity for client case record content is removed and is now
covered under the general recordkeeping requirements as Secs. 23.23 and
23.33.
Sec. 23.50. Due to concerns expressed with respect to serving all
members of an Indian family unit, regardless of tribal membership/
affiliation, this section is revised so that tribes may, under Subpart
C, extend ICWA services to non-Indian family members related by
marriage to tribal members; provided that such services comport with
the intent and purposes of the ICWA.
NPRM references to service eligibility for on- and near-reservation
Indian child and family service programs are deleted and replaced with
tribal government ICWA programs, consistent with the terminology used
for tribal ICWA programs.
Sec. 23.51. The section on Revisions or Amendments of grants
formerly identified at Sec. 23.51 in the NPRM is moved to Sec. 23.21
(c) and is applicable to grants awarded under Subpart C. Commenters
expressed concerns that grants awarded competitively under Subpart D
should be scored, awarded, and operated on the basis of the final form
of the grant application contents received at the close of the
application period. Commenters expressed their belief that applications
which are awarded competitively would not ordinarily have a need for
grant revisions or modifications of a material nature once awarded. The
BIA agrees and thus these provisions will apply only to grants awarded
under Subpart C of this part.
Secs. 23.52 and 23.53. These two sections identify by title the BIA
officials responsible for taking the specific actions delineated in
these two sections. This change replaces the generic term ``BIA'' as
used in the NPRM.
Subpart F--Appeals. In response to comments received, the words
``Hearings and'' are removed from the title in Subpart F because no
provisions for the conduct of hearings are included in this subpart.
Consistent with the changes made with respect to the BIA line officials
making decisions on all aspects of the ICWA grant award process, their
decisions are subject to appeal under this subpart. The titles of these
decision makers are included in Secs. 23.61 and 23.62. Specific appeal
citations provided by the IBIA with respect to decisions appealable to
the IBIA are incorporated at Secs. 23.61 and 23.62. These citations
replace the generic references made in the NPRM to ``subpart 2 of this
chapter.''
Subpart H--Assistance to State Courts. For purposes of
clarification in this subpart, new language refers to the Secretary or
his/her designee to indicate that the Secretary delegates his/her
decision-making authority to other Federal officials. An additional
change in this subpart clarifies that the BIA is not obligated to pay
for the services identified in this subpart.
Comments Not Adopted.
Comment. Some commenters recommended that the definitions of
Indian, Indian child, and Indian tribe be changed and/or expanded, such
as the inclusion of Alaska Native corporations incorporated under state
law under the definition of Indian tribe.
Response. These three definitions are taken verbatim from Pub. L.
95-608, the Indian Child Welfare Act. The BIA has no authority to
change these statutory definitions.
Comment. One commenter recommended that revised regulations require
ICWA notices be sent to tribes via registered mail. Additionally, one
commenter suggested that the time limitation imposed on tribes to
prepare for involuntary child custody proceedings in state courts be
extended to 30 days to allow additional time to prepare for court
proceedings.
Response. No change is made in the manner in which ICWA notices are
served due to considerations given for proof of delivery of said
notices in a timely manner. Registered mail is delivered only to the
addressee. This means ICWA notices may not be delivered should the
addressee not be present at the time of mail delivery. Unclaimed
registered mail is held by the mail service for a limited number of
days and then returned to the sender. On the other hand, mail delivered
via certified mail with return receipt requested may be delivered to
the office in the address rather than only to a specific person.
Because the intent of providing ICWA notices is timely tribal
notification of child custody proceedings and proof that such notice
was given, certified mail with return receipt requested is the
preferred method of serving ICWA notices to assure its timely delivery.
The timeframes specified for all parties/agents involved in the
service of ICWA notices pursuant to 25 U.S.C. 1912 are imposed by
statute and therefore not subject to change.
Comment. A commenter recommended that state courts be required to
notify tribes of voluntary child custody proceedings under Sec. 23.11.
Response. This recommendation is not incorporated because the ICWA
addresses only mandatory tribal notification in cases involving
involuntary child custody proceedings.
Comment. Some commenters requested clarification of the ``juvenile
delinquency'' as it is used in Sec. 23.13. No change is made.
Response. The manner in which the above term is used is in the
context of applying and following state-established procedures and
criteria in calculating legal payment fees/rates for court-appointed
legal counsel in accordance with Sec. 23.13. Each state has set
criteria, procedures, and rates applicable to the calculation of legal
fees associated with the conduct of state juvenile delinquency
proceedings. In the absence of similar state-established criteria,
procedures, and rates to assist in determining attorney fees and
expenses associated with involuntary child custody proceedings, the
language at Sec. 23.13 (d) is intended to lend guidance to state courts
in determining/calculating attorney fees and legal expenses for court-
appointed legal counsel in accordance with Sec. 23.13 by following the
same state-established procedures and criteria for calculating legal
payment fees/rates for state juvenile delinquency proceedings. This
section does not imply that juvenile delinquency proceedings are
covered under the ICWA.
Comments. One commenter recommended that failure of the Area
Director to comply with the established timeframes specified at
Secs. 23.13 (c) and 23.13 (f) be grounds for automatic approval of
attorney fees and expenses pursuant to Sec. 23.13. A commenter
suggested that the provision for payment of attorney fees and expenses
be extended to attorneys representing Indian tribes in state courts.
Response. No change is made because automatic approval would
neither guarantee nor assure that applicants under Sec. 23.13 would be
eligible for attorney fees or expenses as delineated in that section.
No change is made with respect to payment of attorney fees for legal
counsel representing tribes in state courts, because the ICWA addresses
only the need for court-appointed legal counsel to represent an
indigent Indian parent or Indian custodian, but does not address
similar representation for tribes.
Comment. Commenters recommended that the term ``multi-year'' be
defined in terms of years.
Response. This suggestion is not adopted because the BIA desires to
allow flexibility within the meaning of multi-year, whether it be in
terms of two, three, or five years. As the BIA and tribes gain
experience in the ICWA noncompetitive grant award system, both parties
may eventually desire long-term grant awards to tribes.
Comment. A commenter recommended that off-reservation ICWA programs
be allowed to serve those individuals who meet the definition of Indian
as defined in the Indian Health Care Improvement Act of 1976.
Response. For purposes of service eligibility for off-reservation
ICWA grant programs, the definition of Indian already includes persons
defined in section (4)(c) of the Act cited above. (25 U.S.C. 1603 and
1934).
Comment. One commenter recommended that off-reservation Indian
organization applicants under Subpart D be allowed to use ICWA funds as
non-Federal matching shares for other Federal programs in the same
manner that Indian tribes are.
Response. The above recommendation is not incorporated because the
statutory provision for this flexibility is limited to Indian tribes
(25 U.S.C. 1931) and does not extend to off-reservation Indian
organizations. This is because, absent any support from and/or sanction
by tribal governments, these organizations, in and of themselves, do
not qualify under current regulations as eligible applicants in their
own right to apply for funds or administer such Federal programs as
those under Title IV-B, IV-E, or XX of the Social Security Act.
Comment. Several off-reservation Indian organizations who have
successfully operated ICWA programs since the inception of the grant
program recommended that similarly situated grantees receive some type
of recognition during the grant application scoring process for
demonstrating a history of successful program performance.
Response. Although specific procedural scoring issues relative to
competitive grant applications are generally not covered by regulation,
the BIA implemented the above recommendation by way of awarding bonus
points to off-reservation applicants for past successful program
performance during the FY 1993 grant cycle. It is anticipated that
bonus points will continue to be used in the future.
Comment. Some off-reservation Indian organizations recommended that
national ICWA program priorities be established to give more specific
guidance to applicants.
Response. No change is made with respect to the establishment of
national ICWA program priorities. It is the position of the BIA that
program priorities should be locally determined on the basis of
identified needs and gaps in services.
Comment. Some commenters recommended that tribes involved in the
subgranting of certain administrative procedures to Indian
organizations be held harmless with respect to grantee accountability
over ICWA grant activity and funds.
Response. No change is made because the subgranting procedures at
Sec. 23.45 are consistent with existing BIA regulations on subgrants
whereby the grantee retains administrative and financial responsibility
over the ICWA grant activity and funds.
Comment. Comments were received with respect to the applicability
of these regulations to tribes with Self-governance compacts.
Response. To the extent that Self-governance compact tribes do not
request and secure approval for waivers to specific regulations, all
regulatory provisions are applicable to Self-governance tribes.
Similarly, all regulations are applicable to tribes operating
Consolidated Tribal Government Programs.
Comment. One law firm and one Indian organization expressed their
views that the BIA failed to engage in ``meaningful'' consultation.
Response. As discussed in the preamble, the BIA has repeatedly
provided various forums and opportunities for tribal participation
throughout the entire regulatory revision process during 1990-1992. The
BIA feels it conducted ``meaningful'' consultation with tribes and
other interested parties.
The information collection requirements contained in Part 23.13
have been approved by the Office of Management and Budget under 44
U.S.C. 3501 et seq. and assigned clearance number [insert new number].
This information is being collected and will be used to determine
eligibility for payment of legal fees for indigent Indian parents and
Indian custodians, involved in involuntary Indian child custody
proceedings in state courts, who are not eligible for legal services
through other mechanisms. Response to this request is required to
obtain a benefit.
Public reporting for this information collection is estimated to
average 10 hours per response, including the time for reviewing
instructions, gathering and maintaining data, and completing and
reviewing the information collection. Direct comments regarding the
burden estimates or any aspect of this information collection should be
mailed or hand-delivered to the Bureau of Indian Affairs, Information
Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW.,
Washington, DC 20240; and the Office of Information and Regulatory
Affairs [Paperwork Reduction Project--insert new clearance number],
Office of Management and Budget, Washington, DC 20503.
The information collection requirements contained in 25 CFR parts
23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the Office
of Management and Budget under 44 U.S.C. 3501 et seq., and assigned
clearance number 1076-0131. The information collection requirements
under 25 CFR parts 23.21 and 23.31 are collected in the form of ICWA
grant applications from Indian tribes and off-reservation Indian
organizations. A response to this request is required to obtain grant
funds. The information collection requirements under 25 CFR part 23.46
are collected in compliance with applicable OMB circulars on financial
management, internal and external controls and other fiscal assurances.
The grantee information collection requirements under 25 CFR part 23.47
are collected in the form of quarterly and annual program performance
narrative reports and statistical data as required by the grant award
document. Pursuant to 25 U.S.C. 1951, the information collection
requirement under 25 CFR part 23.71 is collected from state courts
entering final adoption decrees for any Indian child and is provided to
and maintained by the Secretary.
Public reporting for the information collection at 25 CFR parts
23.21 and 23.31 is estimated to average 32 hours per response,
including the time for reviewing the grant application instructions,
gathering the necessary information and data, and completing the grant
application. Public reporting for the information collection at 25 CFR
parts 23.46 and 23.47 is estimated to average a combined total of 16
annual hours per grantee, including the time for gathering the
necessary information and data, and completing the required forms and
reports. Public reporting for the information collection at 25 CFR part
23.71 is estimated to average 4 hours per response, including the time
for obtaining and preparing the final adoption decree for transmittal
to the Secretary. Direct comments regarding any of these burden
estimates or any aspect of this information collection should be mailed
or hand-delivered to the Bureau of Indian Affairs, Information
Collection Clearance Officer, Room 336-SIB, 1849 C Street, NW.,
Washington, DC 20240; and the Office of Information and Regulatory
Affairs [Paperwork Reduction Project 1076-0131], Office of Management
and Budget, Washington, DC 20503.
This rulemaking action revising 25 CFR part 23 will be limited in
applicability to federally recognized Indian tribes and off-reservation
Indian organizations applying for grant programs. BIA personnel will
receive and process grant applications and monitor the grants once
awarded. Indian tribes and off-reservation Indian organizations will
administer and manage the day-to-day operations of the grant
activities. Individual Indians and Indian families will be the
recipients of services under these grant programs. Given the low levels
of funding which are expected to be available for small tribes, this
rule will not impose a significant economic effect on a substantial
number of small entities.
The Department of the Interior has determined that this rule will
not have a significant economic impact on a substantial number of small
entities within the meaning of the Regulatory Flexibility Act (5 U.S.C.
601 et seq.) because of the limited applicability as stated above.
This regulation has been reviewed under Executive Order 12866.
The Department of the Interior has determined that this rule is not
a Federal action significantly affecting the quality of the human
environment and that no detailed statement is required pursuant to the
National Environment Policy Act of 1969.
In accordance with Executive Order 12630, the Department of the
Interior has determined that this rule does not have significant
takings implications.
The Department of the Interior has determined that this rule does
not have significant federalism effects.
The Department of the Interior has certified to the Office of
Management and Budget that these final regulations meet the applicable
standards provided in Sections 2(a) and 2(b)(2) of Executive Order
12778.
The primary author of this document is Betty B. Tippeconnie, Chief,
Branch of Child and Family Services, Division of Social Services,
Office of Tribal Services, Bureau of Indian Affairs, 1849 C Street,
NW., Mail Stop 310-SIB, Washington, DC 20240.
List of Subjects in 25 CFR Part 23
Administrative practices and procedures, Child custody proceedings,
Child Welfare, Grant programs--Indians, Grant programs--child and
family service, Grant appeals, Indians, Reporting and recordkeeping
requirements.
For the reasons set out in the preamble, part 23 of title 25,
chapter I, of the Code of Federal Regulations is revised as set forth
below.
PART 23--INDIAN CHILD WELFARE ACT
Subpart A--Purpose, Definitions, Policy
Sec. 23.1 Purpose.
Sec. 23.2 Definitions.
Sec. 23.3 Policy.
Sec. 23.4 Information collection.
Subpart B--Notice of Involuntary Child Custody Proceedings and Payment
for Appointed Counsel in State Courts
Sec. 23.11 Notice.
Sec. 23.12 Designated tribal agent for service of notice.
Sec. 23.13 Payment for appointed counsel in involuntary Indian
child custody proceedings in state courts.
Subpart C--Grants to Indian Tribes for Title II Indian Child and Family
Service Programs
Sec. 23.21 Noncompetitive tribal government grants.
Sec. 23.22 Purpose of tribal government grants.
Sec. 23.23 Tribal government application contents.
Subpart D--Grants to Off-reservation Indian Organizations for Title II
Indian Child and Family Service Programs
Sec. 23.31 Competitive off-reservation grant process.
Sec. 23.32 Purpose of off-reservation grants.
Sec. 23.33 Competitive off-reservation application contents and
application selection criteria.
Sec. 23.34 Review and decision on off-reservation applications by
Area Director.
Sec. 23.35 Deadline for Central Office action.
Subpart E--General and Uniform Grant Administration Provisions and
Requirements
Sec. 23.41 Uniform grant administration provisions, requirements
and applicability.
Sec. 23.42 Technical assistance.
Sec. 23.43 Authority for grant approval and execution.
Sec. 23.44 Grant administration and monitoring.
Sec. 23.45 Subgrants.
Sec. 23.46 Financial management, internal and external controls and
other assurances.
Sec. 23.47 Reports and availability of information to Indians.
Sec. 23.48 Matching shares and agreements.
Sec. 23.49 Fair and uniform provision of services.
Sec. 23.50 Service eligibility.
Sec. 23.51 Grant carry-over authority.
Sec. 23.52 Grant suspension.
Sec. 23.53 Cancellation.
Subpart F--Appeals
Sec. 23.61 Appeals from decision or action by Agency
Superintendent, Area Director or Grants Officer.
Sec. 23.62 Appeals from decision or action by Area Director under
subpart D.
Sec. 23.63 Appeals from inaction of official.
Subpart G--Administrative Provisions
Sec. 23.71 Recordkeeping and information availability.
Subpart H--Assistance to State Courts
Sec. 23.81 Assistance in identifying witnesses.
Sec. 23.82 Assistance in identifying language interpreters.
Sec. 23.83 Assistance in locating biological parents of Indian
child after termination of adoption.
Authority: 5 U.S.C. 301; 25 U.S.C. 2, 9, 1901-1952.
Subpart A--Purpose, Definitions, and Policy
Sec. 23.1 Purpose.
The purpose of the regulations in this part is to govern the
provision of funding for, and the administration of Indian child and
family service programs as authorized by the Indian Child Welfare Act
of 1978 (Pub. L. 95-608, 92 Stat. 3069, 25 U.S.C. 2, 9, 1901-1952).
Sec. 23.2 Definitions.
Act means the Indian Child Welfare Act (ICWA), Pub. L. 95-608, 92
Stat. 3069, 25 U.S.C. 1901 et seq.
Assistant Secretary means the Assistant Secretary--Indian Affairs,
the Department of the Interior.
Bureau of Indian Affairs (BIA) means the Bureau of Indian Affairs,
the Department of the Interior.
Child Custody Proceeding includes:
(1) Foster care placement, which shall mean any action removing an
Indian child from his or her parent or Indian custodian for temporary
placement in a foster home or institution or the home of a guardian or
conservator where the parent or Indian custodian cannot have the child
returned upon demand, but where parental rights have not been
terminated;
(2) Termination of parental rights, which shall mean any action
resulting in the termination of the parent-child relationship;
(3) Preadoptive placement, which shall mean the temporary placement
of an Indian child in a foster home or institution after the
termination of parental rights, but prior to or in lieu of adoptive
placement;
(4) Adoptive placement, which shall mean the permanent placement of
an Indian child for adoption, including any action resulting in a final
decree of adoption; and
(5) Other tribal placements made in accordance with the placement
preferences of the Act, including the temporary or permanent placement
of an Indian child in accordance with tribal children's codes and local
tribal custom or tradition;
(6) The above terms shall not include a placement based upon an act
which, if committed by an adult, would be deemed a crime in the
jurisdiction where the act occurred or upon an award, in a divorce
proceeding, of custody to one of the parents.
Consortium means an association or partnership of two or more
eligible applicants who enter into an agreement to administer a grant
program and to provide services under the grant to Indian residents in
a specific geographical area when it is administratively feasible to
provide an adequate level of services within the area.
Extended family member shall be as defined by the law or custom of
the Indian child's tribe or, in the absence of such law or custom,
shall be a person who has reached the age of 18 and who is the Indian
child's grandparent, aunt or uncle, brother or sister, brother-in-law
or sister-in-law, niece or nephew, first or second cousin, or
stepparent.
Grant means a written agreement between the BIA and the governing
body of an Indian tribe or Indian organization wherein the BIA provides
funds to the grantee to plan, conduct or administer specific programs,
services, or activities and where the administrative and programmatic
provisions are specifically delineated.
Grantee means the tribal governing body of an Indian tribe or Board
of Directors of an Indian organization responsible for grant
administration.
Grants Officer means an officially designated officer who
administers ICWA grants awarded by the Bureau of Indian Affairs, the
Department of the Interior.
Indian means any person who is a member of an Indian tribe, or who
is an Alaska Native and a member of a Regional Corporation as defined
in section 7 of the Alaska Native Claims Settlement Act, 43 U.S.C.
1606.
Indian child means any unmarried person who is under age 18 and is
either a member of an Indian tribe, or is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian
tribe.
Indian child's tribe means the Indian tribe in which an Indian
child is a member or is eligible for membership or, in the case of an
Indian child who is a member of or is eligible for membership in more
than one tribe, the Indian tribe with which the Indian child has the
more significant contacts, to be determined in accordance with the
BIA's ``Guidelines for State Courts--Indian Child Custody
Proceedings.''
Indian custodian means any Indian person who has legal custody of
an Indian child under tribal law or custom or under state law or to
whom temporary physical care, custody and control has been transferred
by the parent of such child.
Indian organization, solely for purposes of eligibility for grants
under subpart D of this part, means any legally established group,
association, partnership, corporation, or other legal entity which is
owned or controlled by Indians, or a majority (51 percent or more) of
whose members are Indians.
Indian preference means preference and opportunities for employment
and training provided to Indians in the administration of grants in
accordance with section 7 (b) of the Indian Self-Determination and
Education Assistance Act (25 U.S.C. 450).
Indian tribe means any Indian tribe, band, nation, or other
organized group or community of Indians federally recognized as
eligible for the services provided to Indians by the Secretary because
of their status as Indians, including any Alaska Native village as
defined in section 3 (c) of the Alaska Native Claims Settlement Act, 43
U.S.C. 1602 (c).
Off-reservation ICWA program means an ICWA program administered in
accordance with 25 U.S.C. 1932 by an off-reservation Indian
organization.
Parent means the biological parent or parents of an Indian child or
any Indian person who has lawfully adopted an Indian child, including
adoptions under tribal law or custom. The term does not include the
unwed father where paternity has not been acknowledged or established.
Reservation means Indian country as defined in 18 U.S.C. 1151 and
any lands not covered under such section, title to which is either held
by the United States in trust for the benefit of any Indian tribe or
individual or held by any Indian tribe or individual subject to a
restriction by the United States against alienation.
Secretary means the Secretary of the Interior.
Service areas solely for newly recognized or restored Indian tribes
without established reservations means those service areas
congressionally established by Federal law to be the equivalent of a
reservation for the purpose of determining the eligibility of a newly
recognized or restored Indian tribe and its members for all Federal
services and benefits.
State court means any agent or agency of a state, including the
District of Columbia or any territory or possession of the United
States, or any political subdivision empowered by law to terminate
parental rights or to make foster care placements, preadoptive
placements, or adoptive placements.
Subgrant means a secondary grant that undertakes part of the
obligations of the primary grant, and assumes the legal and financial
responsibility for the funds awarded and for the performance of the
grant-supported activity.
Technical assistance means the provision of oral, written, or other
relevant information and assistance to prospective grant applicants in
the development of their grant proposals. Technical assistance may
include a preliminary review of an application to assist the applicant
in identifying the strengths and weaknesses of the proposal, ongoing
program planning, design and evaluation, and such other program-
specific assistance as is necessary for ongoing grant administration
and management.
Title II means Title II of Public Law 95-608, the Indian Child
Welfare Act of 1978, which authorizes the Secretary to make grants to
Indian tribes and off-reservation Indian organizations for the
establishment and operation of Indian child and family service
programs.
Tribal Court means a court with jurisdiction over child custody
proceedings and which is either a Court of Indian Offenses, a court
established and operated under the code or custom of an Indian tribe,
or any other administrative body of a tribe which is vested with
authority over child custody proceedings.
Tribal government means the federally recognized governing body of
an Indian tribe.
Value means face, par, or market value, or cost price, either
wholesale or retail, whichever is greater.
Sec. 23.3 Policy.
In enacting the Indian Child Welfare Act of 1978, Pub. L. 95-608,
the Congress has declared that it is the policy of this Nation to
protect the best interests of Indian children and to promote the
stability and security of Indian tribes and Indian families by the
establishment of minimum Federal standards to prevent the arbitrary
removal of Indian children from their families and tribes and to ensure
that measures which prevent the breakup of Indian families are followed
in child custody proceedings (25 U.S.C. 1902). Indian child and family
service programs receiving Title II funds and operated by federally
recognized Indian tribes and off-reservation Indian organizations shall
reflect the unique values of Indian culture and promote the stability
and security of Indian children, Indian families and Indian
communities. It is the policy of the Bureau of Indian Affairs to
emphasize and facilitate the comprehensive design, development and
implementation of Indian child and family service programs in
coordination with other Federal, state, local, and tribal programs
which strengthen and preserve Indian families and Indian tribes.
Sec. 23.4 Information collection.
(a) The information collection requirements contained in Sec. 23.13
of this part have been approved by the Office of Management and Budget
(OMB) under 44 U.S.C. 3501 et seq., and assigned clearance number 1076-
0111.
(1) This information will be used to determine eligibility for
payment of legal fees for indigent Indian parents and Indian
custodians, involved in involuntary Indian child custody proceedings in
state courts, who are not eligible for legal services through other
mechanisms. Response to this request is required to obtain a benefit.
(2) Public reporting for this information collection is estimated
to average 10 hours per response, including the time for reviewing
instructions, gathering and maintaining data, and completing and
reviewing the information collection. Direct comments regarding the
burden estimate or any aspect of this information collection should be
mailed or hand-delivered to the Bureau of Indian Affairs, Information
Collection Clearance Officer, Room 336-SIB, 1849 C street, NW.,
Washington, DC 20240; and the Office of Information and Regulatory
Affairs Paperwork Reduction Project--1076-0111, Office of Management
and Budget, Washington, DC 20503.
(b) The information collection requirements contained in
Secs. 23.21; 23.31; 23.46; 23.47, and 23.71 have been approved by the
Office of Management and Budget under 44 U.S.C. 3501 et seq. and
assigned clearance number 1076-0131. The information collection
requirements under Secs. 23.21 and 23.31 are collected in the form of
ICWA grant applications from Indian tribes and off-reservation Indian
organizations. A response to this request is required to obtain grant
funds. The information collection requirements under 23.46 are
collected in compliance with applicable OMB circulars on financial
management, internal and external controls and other fiscal assurances
in accordance with existing Federal grant administration and reporting
requirements. The grantee information collection requirements under
Sec. 23.47 are collected in the form of quarterly and annual program
performance narrative reports and statistical data as required by the
grant award document. Pursuant to 25 U.S.C. 1951, the information
collection requirement under Sec. 23.71 is collected from state courts
entering final adoption decrees for any Indian child and is provided to
and maintained by the Secretary.
(1) Public reporting for the information collection at Secs. 23.21
and 23.31 is estimated to average 32 hours per response, including the
time for reviewing the grant application instructions, gathering the
necessary information and data, and completing the grant application.
Public reporting for the information collection at Secs. 23.46 and
23.47 is estimated to average a combined total of 16 annual hours per
grantee, including the time for gathering the necessary information and
data, and completing the required forms and reports. Public reporting
for the information collection at Sec. 23.71 is estimated to average 4
hours per response, including the time for obtaining and preparing the
final adoption decree for transmittal to the Secretary.
(2) Direct comments regarding any of these burden estimates or any
aspect of these information collection requirements should be mailed or
hand-delivered to the Bureau of Indian Affairs, Information Collection
Clearance Officer, room 336-SIB, 1849 C Street, NW., Washington, DC,
20240; and the Office of Information and Regulatory Affairs Paperwork
Reduction Project--1076-0131, Office of Management and Budget,
Washington, DC 20503.
Subpart B--Notice of Involuntary Child Custody Proceedings and
Payment for Appointed Counsel in State Courts
Sec. 23.11 Notice.
(a) In any involuntary proceeding in a state court where the court
knows or has reason to know that an Indian child is involved, and where
the identity and location of the child's Indian parents or custodians
or tribe is known, the party seeking the foster care placement of, or
termination of parental rights to, an Indian child shall directly
notify the Indian parents, Indian custodians, and the child's tribe by
certified mail with return receipt requested, of the pending
proceedings and of their right of intervention. Notice shall include
requisite information identified at paragraphs (d)(1) through (4) and
(e)(1) through (6) of this section, consistent with the confidentiality
requirement in paragraph (e)(7) of this section. Copies of these
notices shall be sent to the Secretary and the appropriate Area
Director listed in paragraphs (c)(1) through (12) of this section.
(b) If the identity or location of the Indian parents, Indian
custodians or the child's tribe cannot be determined, notice of the
pendency of any involuntary child custody proceeding involving an
Indian child in a state court shall be sent by certified mail with
return receipt requested to the appropriate Area Director listed in
paragraphs (c)(1) through (12) of this section. In order to establish
tribal identity, it is necessary to provide as much information as is
known on the Indian child's direct lineal ancestors including, but not
limited to, the information delineated at paragraph (d)(1) through (4)
of this section.
(c)(1) For proceedings in Alabama, Connecticut, Delaware, District
of Columbia, Florida, Georgia, Kentucky, Louisiana, Maine, Maryland,
Massachusetts, Mississippi, New Hampshire, New Jersey, New York, North
Carolina, Pennsylvania, Rhode Island, South Carolina, Tennessee,
Vermont, Virginia, West Virginia or any territory or possession of the
United States, notices shall be sent to the following address: Eastern
Area Director, Bureau of Indian Affairs, 3701 N. Fairfax Drive, Suite
260, Arlington, Virginia 22201.
(2) For proceedings in Illinois, Indiana, Iowa, Michigan,
Minnesota, Ohio, or Wisconsin, notices shall be sent to the following
address: Minneapolis Area Director, Bureau of Indian Affairs, 331
Second Avenue South, Minneapolis, Minnesota 55401-2241.
(3) For proceedings in Nebraska, North Dakota, or South Dakota,
notices shall be sent to the following address: Aberdeen Area Director,
Bureau of Indian Affairs, 115 Fourth Avenue, SE, Aberdeen, South Dakota
57401.
(4) For proceedings in Kansas, Texas (except for notices to the
Ysleta del Sur Pueblo of El Paso County, Texas), and the western
Oklahoma counties of Alfalfa, Beaver, Beckman, Blaine, Caddo, Canadian,
Cimarron, Cleveland, Comanche, Cotton, Custer, Dewey, Ellis, Garfield,
Grant, Greer, Harmon, Harper, Jackson, Kay, Kingfisher, Kiowa, Lincoln,
Logan, Major, Noble, Oklahoma, Pawnee, Payne, Pottawatomie, Roger
Mills, Texas, Tillman, Washita, Woods and Woodward, notices shall be
sent to the following address: Anadarko Area Director, Bureau of Indian
Affairs, P.O. Box 368, Anadarko, Oklahoma 73005. Notices to the Ysleta
del Sur Pueblo of El Paso County, Texas shall be sent to the
Albuquerque Area Director at the address listed in paragraph (c)(6) of
this section.
(5) For proceedings in Wyoming or Montana (except for notices to
the Confederated Salish & Kootenai Tribes of the Flathead Reservation,
Montana), notices shall be sent to the following address: Billings Area
Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings,
Montana 59101. Notices to the Confederated Salish & Kootenai Tribes of
the Flathead Reservation, Montana, shall be sent to the Portland Area
Director at the address listed in paragraph (c)(11) of this section.
(6) For proceedings in the Texas counties of El Paso and Hudspeth
and proceedings in Colorado or New Mexico (exclusive of notices to the
Navajo Tribe from the New Mexico counties listed in paragraph (c)(9) of
this section), notices shall be sent to the following address:
Albuquerque Area Director, Bureau of Indian Affairs, 615 First Street,
P.O. Box 26567, Albuquerque, New Mexico 87125. Notices to the Navajo
Tribe shall be sent to the Navajo Area Director at the address listed
in paragraph (c)(9) of this section.
(7) For proceedings in Alaska (except for notices to the Metlakatla
Indian Community, Alaska), notices shall be sent to the following
address: Juneau Area Director, Bureau of Indian Affairs, 709 West 9th
Street, Juneau, Alaska 99802-1219. Notices to the Metlakatla Indian
Community of the Annette Islands Reserve, Alaska, shall be sent to the
Portland Area Director at the address listed in paragraph (c)(11) of
this section.
(8) For proceedings in Arkansas, Missouri, and the eastern Oklahoma
counties of Adair, Atoka, Bryan, Carter, Cherokee, Craig, Creek,
Choctaw, Coal, Delaware, Garvin, Grady, Haskell, Hughes, Jefferson,
Johnson, Latimer, LeFlore, Love, Mayes, McCurtain, McClain, McIntosh,
Murray, Muskogee, Nowata, Okfuskee, Okmulgee, Osage, Ottawa, Pittsburg,
Pontotoc, Pushmataha, Marshall, Rogers, Seminole, Sequoyah, Wagoner,
Washington, Stephens, and Tulsa, notices shall be sent to the following
address: Muskogee Area Director, Bureau of Indian Affairs, 101 North
Fifth Street, Muskogee, Oklahoma 74401.
(9) For proceedings in the Arizona counties of Apache, Coconino
(except for notices to the Hopi and San Juan Paiute Tribes) and Navajo
(except for notices to the Hopi Tribe); the New Mexico counties of
McKinley (except for notices to the Zuni Tribe), San Juan, and Socorro;
and the Utah county of San Juan, notices shall be sent to the following
address: Navajo Area Director, Bureau of Indian Affairs, P.O. Box 1060,
Gallup, New Mexico 87301. Notices to the Hopi and San Juan Paiute
Tribes shall be sent to the Phoenix Area Director at the address listed
in paragraph (c)(10) of this section. Notices to the Zuni Tribe shall
be sent to the Albuquerque Area Director at the address listed in
paragraph (c)(6) of this section.
(10) For proceedings in Arizona (exclusive of notices to the Navajo
Tribe from those counties listed in paragraph (c)(9) of this section),
Nevada or Utah (exclusive of San Juan county), notices shall be sent to
the following address: Phoenix Area Director, Bureau of Indian Affairs,
1 North First Street, P.O. Box 10, Phoenix, Arizona 85001.
(11) For proceedings in Idaho, Oregon or Washington, notices shall
be sent to the following address: Portland Area Director, Bureau of
Indian Affairs, 911 NE 11th Avenue, Portland, Oregon 97232. All notices
to the Confederated Salish & Kootenai Tribes of the Flathead
Reservation, located in the Montana counties of Flathead, Lake,
Missoula, and Sanders, shall also be sent to the Portland Area
Director.
(12) For proceedings in California or Hawaii, notices shall be sent
to the following address: Sacramento Area Director, Bureau of Indian
Affairs, Federal Office Building, 2800 Cottage Way, Sacramento,
California 95825.
(d) Notice to the appropriate Area Director pursuant to paragraph
(b) of this section may be sent by certified mail with return receipt
requested or by personal service and shall include the following
information, if known:
(1) Name of the Indian child, the child's birthdate and birthplace.
(2) Name of Indian tribe(s) in which the child is enrolled or may
be eligible for enrollment.
(3) All names known, and current and former addresses of the Indian
child's biological mother, biological father, maternal and paternal
grandparents and great grandparents or Indian custodians, including
maiden, married and former names or aliases; birthdates; places of
birth and death; tribal enrollment numbers, and/or other identifying
information.
(4) A copy of the petition, complaint or other document by which
the proceeding was initiated.
(e) In addition, notice provided to the appropriate Area Director
pursuant to paragraph (b) of this section shall include the following:
(1) A statement of the absolute right of the biological Indian
parents, the child's Indian custodians and the child's tribe to
intervene in the proceedings.
(2) A statement that if the Indian parent(s) or Indian custodian(s)
is (are) unable to afford counsel, and where a state court determines
indigency, counsel will be appointed to represent the Indian parent or
Indian custodian where authorized by state law.
(3) A statement of the right of the Indian parents, Indian
custodians and child's tribe to be granted, upon request, up to 20
additional days to prepare for the proceedings.
(4) The location, mailing address, and telephone number of the
court and all parties notified pursuant to this section.
(5) A statement of the right of the Indian parents, Indian
custodians and the child's tribe to petition the court for transfer of
the proceeding to the child's tribal court pursuant to 25 U.S.C. 1911,
absent objection by either parent: Provided, that such transfer shall
be subject to declination by the tribal court of said tribe.
(6) A statement of the potential legal consequences of the
proceedings on the future custodial and parental rights of the Indian
parents or Indian custodians.
(7) A statement that, since child custody proceedings are conducted
on a confidential basis, all parties notified shall keep confidential
the information contained in the notice concerning the particular
proceeding. The notices shall not be handled by anyone not needing the
information contained in the notices in order to exercise the tribe's
rights under the Act.
(f) Upon receipt of the notice, the Secretary or his/her designee
shall make reasonable documented efforts to locate and notify the
child's tribe and the child's Indian parents or Indian custodians. The
Secretary or his/her designee shall have 15 days, after receipt of the
notice from the persons initiating the proceedings, to notify the
child's tribe and Indian parents or Indian custodians and send a copy
of the notice to the court. If within the 15-day time period the
Secretary or his/her designee is unable to verify that the child meets
the criteria of an Indian child as defined in 25 U.S.C. 1903, or is
unable to locate the Indian parents or Indian custodians, the Secretary
or his/her designee shall so inform the court prior to initiation of
the proceedings and state how much more time, if any, will be needed to
complete the search. The Secretary or his/her designee shall complete
all research efforts, even if those efforts cannot be completed before
the child custody proceeding begins.
(g) Upon request from a party to an Indian child custody
proceeding, the Secretary or his/her designee shall make a reasonable
attempt to identify and locate the child's tribe, Indian parents or
Indian custodians to assist the party seeking the information.
Sec. 23.12 Designated tribal agent for service of notice.
Any Indian tribe entitled to notice pursuant to 25 U.S.C. 1912 may
designate by resolution, or by such other form as the tribe's
constitution or current practice requires, an agent for service of
notice other than the tribal chairman and send a copy of the
designation to the Secretary or his/her designee. The Secretary or his/
her designee shall update and publish as necessary the names and
addresses of the designated agents in the Federal Register. A current
listing of such agents shall be available through the area offices.
Sec. 23.13 Payment for appointed counsel in involuntary Indian child
custody proceedings in state courts.
(a) When a state court appoints counsel for an indigent Indian
party in an involuntary Indian child custody proceeding for which the
appointment of counsel is not authorized under state law, the court
shall send written notice of the appointment to the BIA Area Director
designated for that state in Sec. 23.11. The notice shall include the
following:
(1) Name, address, and telephone number of attorney who has been
appointed.
(2) Name and address of client for whom counsel is appointed.
(3) Relationship of client to child.
(4) Name of Indian child's tribe.
(5) Copy of the petition or complaint.
(6) Certification by the court that state law makes no provision
for appointment of counsel in such proceedings.
(7) Certification by the court that the Indian client is indigent.
(b) The Area Director shall certify that the client is eligible to
have his or her appointed counsel compensated by the BIA unless:
(1) The litigation does not involve a child custody proceeding as
defined in 25 U.S.C. 1903 (1);
(2) The child who is the subject of the litigation is not an Indian
child as defined in 25 U.S.C. 1903 (4);
(3) The client is neither the Indian child who is the subject of
the litigation, the Indian child's parent as defined in 25 U.S.C. 1903
(9), nor the child's Indian custodian as defined in 25 U.S.C. 1903 (6);
(4) State law provides for appointment of counsel in such
proceedings;
(5) The notice to the Area Director of appointment of counsel is
incomplete; or
(6) Funds are not available for the particular fiscal year.
(c) No later than 10 days after receipt of the notice of
appointment of counsel, the Area Director shall notify the court, the
client, and the attorney in writing whether the client has been
certified as eligible to have his or her attorney fees and expenses
paid by the BIA. If certification is denied, the notice shall include
written reasons for that decision, together with a statement that
complies with 25 CFR 2.7 and that informs the applicant that the
decision may be appealed to the Assistant Secretary. The Assistant
Secretary shall consider appeals under this subsection in accordance
with 25 CFR 2.20 (c) through (e). Appeal procedures shall be as set out
in part 2 of this chapter.
(d) When determining attorney fees and expenses, the court shall:
(1) Determine the amount of payment due appointed counsel by the
same procedures and criteria it uses in determining the fees and
expenses to be paid appointed counsel in state juvenile delinquency
proceedings; and
(2) Submit approved vouchers to the Area Director who certified
eligibility for BIA payment, together with the court's certification
that the amount requested is reasonable under the state standards
considering the work actually performed in light of criteria that apply
in determining fees and expenses for appointed counsel in state
juvenile delinquency proceedings.
(e) The Area Director shall authorize the payment of attorney fees
and expenses in the amount requested in the voucher approved by the
court unless:
(1) The amount of payment due the state-appointed counsel is
inconsistent with the fees and expenses specified in Sec. 23.13 (d)(1);
or
(2) The client has not been certified previously as eligible under
paragraph (c) of this section; or
(3) The voucher is submitted later than 90 days after completion of
the legal action involving a client certified as eligible for payment
of legal fees under paragraph (b) of this section.
(f) No later than 15 days after receipt of a payment voucher, the
Area Director shall send written notice to the court, the client, and
the attorney stating the amount of payment, if any, that has been
authorized. If the payment has been denied, or the amount authorized is
less than the amount requested in the voucher approved by the court,
the notice shall include a written statement of the reasons for the
decision together with a statement that complies with 25 CFR 2.7 and
that informs the client that the decision may be appealed to the
Interior Board of Indian Appeals in accordance with 25 CFR 2.4 (e); 43
CFR 4.310 through 4.318 and 43 CFR 4.330 through 4.340.
(g) Failure of the Area Director to meet the deadline specified in
paragraphs (c) and (f) of this section may be treated as a denial for
purposes of appeal under paragraph (f) of this section.
(h) Payment for appointed counsel does not extend to Indian tribes
involved in state court child custody proceedings or to Indian families
involved in Indian child custody proceedings in tribal courts.
Subpart C--Grants to Indian Tribes for Title II Indian Child and
Family Service Programs
Sec. 23.21 Noncompetitive tribal government grants.
(a) Grant application information and technical assistance.
Information on grant application procedures and related information may
be obtained from the appropriate Agency Superintendent or Area
Director. Pre-award and ongoing technical assistance to tribal
governments shall be provided in accordance with Sec. 23.42 of this
part.
(b) Eligibility requirements for tribal governments. The tribal
government(s) of any Indian tribe or consortium of tribes may submit a
properly documented application for a grant to the appropriate Agency
Superintendent or Area Director. A tribe may neither submit more than
one application for a grant nor be the beneficiary of more than one
grant under this subpart.
(1) Through the publication of a Federal Register announcement at
the outset of the implementation of the noncompetitive grant award
process during which tribal applications will be solicited, the
Assistant Secretary will notify eligible tribal applicants under this
subpart of the amount of core funds available for their ICWA program.
The funding levels will be based on the service area population to be
served. Upon the receipt of this notice from the Agency Superintendent
or appropriate Area Director, tribal applicants shall submit a
completed ICWA application no later than 60 days after the receipt of
this notice.
(2) A grant to be awarded under this subpart shall be limited to
the tribal governing body(ies) of the tribe(s) to be served by the
grant.
(3) For purposes of eligibility for newly recognized or restored
Indian tribes without established reservations, such tribes shall be
deemed eligible to apply for grants under this subpart to provide ICWA
services within those service areas legislatively identified for such
tribes.
(4) A grantee under this subpart may make a subgrant to another
Indian tribe or an Indian organization subject to the provisions of
Sec. 23.45.
(c) Revision or amendment of grants. A grantee under this subpart
may submit a written request and justification for a post-award grant
modification covering material changes to the terms and conditions of
the grant, subject to the approval of the grants officer. The request
shall include a narrative description of any significant additions,
deletions, or changes to the approved program activities or budget in
the form of a grant amendment proposal.
(d) Continued annual funding of an ICWA grant under this subpart
shall be contingent upon the fulfillment of the requirements delineated
at Sec. 23.23(c).
(e) Monitoring and program reporting requirements for grantees
under this subpart are delineated at Secs. 23.44 and 23.47.
Sec. 23.22 Purpose of tribal government grants.
(a) Grants awarded under this subpart are for the establishment and
operation of tribally designed Indian child and family service
programs. The objective of every Indian child and family service
program shall be to prevent the breakup of Indian families and to
ensure that the permanent removal of an Indian child from the custody
of his or her Indian parent or Indian custodian shall be a last resort.
Such child and family service programs may include, but need not be
limited to:
(1) A system for licensing or otherwise regulating Indian foster
and adoptive homes, such as establishing tribal standards for approval
of on-reservation foster or adoptive homes;
(2) The operation and maintenance of facilities for counseling and
treatment of Indian families and for the temporary custody of Indian
children with the goal of strengthening Indian families and preventing
parent-child separations;
(3) Family assistance, including homemaker and home counselors,
protective day care and afterschool care, recreational activities,
respite care, and employment support services with the goal of
strengthening Indian families and contributing to family stability;
(4) Home improvement programs with the primary emphasis on
preventing the removal of children due to unsafe home environments by
making homes safer, but not to make extensive structural home
improvements;
(5) The employment of professional and other trained personnel to
assist the tribal court in the disposition of domestic relations and
child welfare matters, but not to establish tribal court systems;
(6) Education and training of Indians, including tribal court
judges and staff, in skills relating to child and family assistance and
service programs;
(7) A subsidy program under which Indian adoptive children not
eligible for state or BIA subsidy programs may be provided support
comparable to that for which they could be eligible as foster children,
taking into account the appropriate state standards of support for
maintenance and medical needs;
(8) Guidance, legal representation and advice to Indian families
involved in tribal, state, or Federal child custody proceedings; and
(9) Other programs designed to meet the intent and purposes of the
Act.
(b) Grants may be provided to tribes in the preparation and
implementation of child welfare codes within their jurisdiction or
pursuant to a tribal-state agreement.
(c) Grantees under this subpart may enhance their capabilities by
utilizing ICWA funds as non-Federal matching shares in connection with
funds provided under titles IV-B, IV-E and XX of the Social Security
Act or other Federal programs which contribute to and promote the
intent and purposes of the Act through the provision of comprehensive
child and family services in coordination with other tribal, Federal,
state, and local resources available for the same purpose.
(d) Program income resulting from the operation of programs under
this subpart, such as day care operations, may be retained and used for
purposes similar to those for which the grant was awarded.
Sec. 23.23 Tribal government application contents.
(a) The appropriate Area Director shall, subject to the tribe's
fulfillment of the mandatory application requirements and the
availability of appropriated funds, make a grant to the tribal
governing body of a tribe or consortium of tribes eligible to apply for
a grant under this subpart.
(b) The following mandatory tribal application requirements must be
submitted to the appropriate Agency Superintendent or Area Director in
accordance with the timeframe established in Sec. 23.21 (b) of this
subpart:
(1) A current tribal resolution requesting a grant by the Indian
tribe(s) to be served by the grant. If an applicant is applying for a
grant benefiting more than one tribe (consortium), an authorizing
resolution from each tribal government to be served must be included.
The request must be in the form of a current tribal resolution by the
tribal governing body and shall include the following information:
(i) The official name of tribe(s) applying for the grant and who
will directly benefit from or receive services from the grant;
(ii) The proposed beginning and ending dates of the grant;
(iii) A provision stating that the resolution will remain in effect
for the duration of the program or until the resolution expires or is
rescinded; and
(iv) The signature of the authorized representative of the tribal
government and the date thereof.
(2) A completed Application for Federal Assistance form, SF-424.
(3) A narrative needs assessment of the social problems or issues
affecting the resident Indian population to be served; the geographic
area(s) to be served; and estimated number of resident Indian families
and/or persons to receive benefits or services from the program.
(4) A comprehensive developmental multi-year plan in narrative form
describing what specific services and/or activities will be provided
each program year and addressing the above-identified social problems
or issues. At a minimum, the plan must include:
(i) The program goals and objectives, stated in measurable terms,
to be achieved through the grant;
(ii) A narrative description of how Indian families and communities
will benefit from the program; and
(iii) The methodology, including culturally defined approaches, and
procedures by which the tribe(s) will accomplish the identified goals
and objectives.
(5) An internal monitoring system to measure progress and
accomplishments, and to assure that the quality and quantity of actual
performance conforms to the requirements of the grant.
(6) A staffing plan that is consistent with the implementation of
the above-described program plan of operation and the procedures
necessary for the successful delivery of services.
(i) The plan must include proposed key personnel; their
qualifications, training or experience relevant to the services to be
provided; responsibilities; Indian preference criteria for employment;
and position descriptions.
(ii) In accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630),
title IV, the Indian Child Protection and Family Violence Prevention
Act, grantees shall conduct character and background investigations of
those personnel identified in that statute. Grantees must initiate
character and background investigations of said personnel prior to
their actual employment, and complete the investigations in a timely
manner.
(7) A program budget and budget narrative justification submitted
on an annual basis for the amount of the award and supported by the
proposed plan, appropriate program services and activities for the
applicable grant year.
(8) Identification of any consultants and/or subgrantees the
applicant proposes to employ; a description of the consultant and/or
subgrantee services to be rendered; the qualifications and experience
in performing the identified services; and the basis for the cost and
amount to be paid for such services.
(9) A certification by a licensed accountant that the bookkeeping
and accounting procedures which the tribe(s) uses or intends to use
meet existing Federal standards for grant management and administration
specified at Sec. 23.46.
(10) A system for managing property and recordkeeping which
complies with subpart D of 43 CFR part 2 implementing the Privacy Act
(5 U.S.C. 552a) and with existing Federal requirements for grants at 25
CFR 276.5 and 276.11, including the maintenance and safeguarding of
direct service case records on families and/or individuals served by
the grant.
(11) A listing of equipment, facilities, and buildings necessary to
carry out the grant program. Liability insurance coverage for buildings
and their contents is recommended for grantees under this subpart.
(12) Pursuant to the Drug-Free Workplace Act of 1988, tribal
programs shall comply with the mandatory Drug-Free Workplace
Certification, a regulatory requirement for Federal grant recipients.
(c) Continued annual funding of an ICWA program under this subpart
shall be contingent upon the existing grant program receiving a
satisfactory program evaluation from the area social services office
for the previous year of operation. A copy of this evaluation must be
submitted together with an annual budget and budget narrative
justification in accordance with paragraph (b)(7) of this section.
Minimum standards for receiving a satisfactory evaluation shall
include:
(1) The timely submission of all fiscal and programmatic reports;
(2) A narrative program report indicating work accomplished in
accordance with the applicant's approved multi-year plan and, if
applicable, a description of any modification in programs or activities
to be funded in the next fiscal year; and
(3) The implementation of mutually determined corrective action
measures, if applicable.
Subpart D--Grants to Off-Reservation Indian Organizations for Title
II Indian Child and Family Service Programs
Sec. 23.31 Competitive off-reservation grant process.
(a) Grant application procedures and related information may be
obtained from the Area Director designated at Sec. 23.11 for processing
ICWA notices for the state in which the applicant is located. Pre-award
and ongoing technical assistance of off-reservation Indian organization
grantees shall be provided in accordance with Sec. 23.42.
(b) Prior to the beginning of or during the applicable year(s) in
which grants for off-reservation programs will be awarded
competitively, the Assistant Secretary--Indian Affairs shall publish in
the Federal Register an announcement of the grant application process
for the year(s), including program priorities or special considerations
(if any), applicant eligibility criteria, the required application
contents, the amount of available funding and evaluation criteria for
off-reservation programs.
(c) Based on the announcement described in paragraph (b) of this
section, an off-reservation applicant shall prepare a multi-year
developmental application in accordance with Sec. 23.33 of this
subpart. To be considered in the area competitive review and scoring
process, a complete application must be received by the deadline
announced in the Federal Register by the Area Director designated at
Sec. 23.11 for processing ICWA notices for the state in which the
applicant is located.
(d) Eligibility requirements for off-reservation Indian
organizations. The Secretary or his/her designee shall, contingent upon
the availability of funds, make a multi-year grant under this subpart
for an off-reservation program when officially requested by a
resolution of the board of directors of the Indian organization
applicant, upon the applicant's fulfillment of the mandatory
application requirements and upon the applicant's successful
competition pursuant to Sec. 23.33 of this subpart.
(e) A grant under this subpart for an off-reservation Indian
organization shall be limited to the board of directors of the Indian
organization which will administer the grant.
(f) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon
the grantee's fulfillment of the requirements delineated at Sec. 23.33
(e).
(g) Monitoring and program reporting requirements for grants
awarded to off-reservation Indian organizations under this subpart are
delineated at Secs. 23.44 and 23.47.
Sec. 23.32 Purpose of off-reservation grants.
The Secretary or his/her designee is authorized to make grants to
off-reservation Indian organizations to establish and operate off-
reservation Indian child and family service programs for the purpose of
stabilizing Indian families and tribes, preventing the breakup of
Indian families and, in particular, to ensure that the permanent
removal of an Indian child from the custody of his/her Indian parent or
Indian custodian shall be a last resort. Child and family service
programs may include, but are not limited to:
(a) A system for regulating, maintaining, and supporting Indian
foster and adoptive homes, including a subsidy program under which
Indian adoptive children may be provided support comparable to that for
which they would be eligible as Indian foster children, taking into
account the appropriate state standards of support for maintenance and
medical needs;
(b) The operation and maintenance of facilities and services for
counseling and treatment of Indian families and Indian foster and
adoptive children with the goal of strengthening and stabilizing Indian
families;
(c) Family assistance (including homemaker and home counselors),
protective day care and afterschool care, employment support services,
recreational activities, and respite care with the goal of
strengthening Indian families and contributing toward family stability;
and
(d) Guidance, legal representation and advice to Indian families
involved in state child custody proceedings.
Sec. 23.33 Competitive off-reservation application contents and
application selection criteria.
(a) An application for a competitive multi-year grant under this
subpart shall be submitted to the appropriate Area Director prior to or
on the announced deadline date published in the Federal Register. The
Area Director shall certify the application contents pursuant to
Sec. 23.34 and forward the application within five working days to the
area review committee, composed of members designated by the Area
Director, for competitive review and action. Modifications and/or
information received after the close of the application period, as
announced in the Federal Register, shall not be reviewed or considered
by the area review committee in the competitive process.
(b) Mandatory application requirements for Indian organization
applicants shall include:
(1) An official request for an ICWA grant program from the
organization's board of directors covering the duration of the proposed
program;
(2) A completed Application for Federal Assistance form, SF 424;
(3) Written assurances that the organization meets the definition
of Indian organization at Sec. 23.2;
(4) A copy of the organization's current Articles of Incorporation
for the applicable grant years;
(5) Proof of the organization's nonprofit status;
(6) A copy of the organization's IRS tax exemption certificate and
IRS employer identification number;
(7) Proof of liability insurance for the applicable grant years;
and
(8) Current written assurances that the requirements of Circular A-
128 for fiscal management, accounting, and recordkeeping are met.
(9) Pursuant to the Drug-Free Workplace Act of 1988, all grantees
under this subpart shall comply with the mandatory Drug-Free Workplace
Certification, a regulatory requirement for Federal grant recipients.
(c) Competitive application selection criteria. The Area Director
or his/her designated representative shall select those proposals which
will in his/her judgment best promote the proposes of the Act.
Selection shall be made through the area review committee process in
which each application will be scored individually and ranked according
to score, taking into consideration the mandatory requirements as
specified above and the following selection criteria:
(1) The degree to which the application reflects an understanding
of the social problems or issues affecting the resident Indian client
population which the applicant proposes to serve;
(2) Whether the applicant presents a narrative needs assessment,
quantitative data and demographics of the client Indian population to
be served;
(3) Estimates of the number of Indian people to receive benefits or
services from the program based on available data;
(4) Program goals and objectives to be achieved through the grant;
(5) A comprehensive developmental multi-year narrative plan
describing what specific services and/or activities will be provided
each program year and addressing the above-identified social problems
or issues. At a minimum, the plan must include a narrative description
of the program; the program goals and objectives, stated in measurable
terms, to be achieved through the grant; and the methodology, including
culturally defined approaches, and procedures by which the grantee will
accomplish the identified goals and objectives;
(6) An internal monitoring system the grantee will use to measure
progress and accomplishments, and to ensure that the quality and
quantity of actual performance conforms to the requirements of the
grant;
(7) Documentation of the relative accessibility which the Indian
population to be served under a specific proposal already has to
existing child and family service programs emphasizing the prevention
of Indian family breakups, such as mandatory state services. Factors to
be considered in determining accessibility include:
(i) Cultural barriers;
(ii) Discrimination against Indians;
(iii) Inability of potential Indian clientele to pay for services;
(iv) Technical barriers created by existing public or private
programs;
(v) Availability of transportation to existing programs;
(vi) Distance between the Indian community to be served under the
proposal and the nearest existing programs;
(vii) Quality of services provided to Indian clientele; and
(viii) Relevance of services provided to specific needs of the
Indian clientele.
(8) If the proposed program duplicates existing Federal, state, or
local child and family service programs emphasizing the prevention of
Indian family breakups, proper and current documented evidence that
repeated attempts to obtain services have been unsuccessful;
(9) Evidence of substantial support from the Indian community or
communities to be served, including but not limited to:
(i) Tribal support evidenced by a tribal resolution or cooperative
service agreements between the administrative bodies of the affected
tribe(s) and the applicant for the duration of the grant period, or
(ii) Letters of support from social services organizations familiar
with the applicant's past work experience;
(10) A staffing plan that is consistent with the implementation of
the above-described program plan of operation and the procedures
necessary for the successful delivery of services. The plan must
include proposed key personnel, their qualifications, training or
experience relevant to the services to be provided, responsibilities,
Indian preference criteria for employment and position descriptions. In
accordance with 25 U.S.C. 3201 et seq. (Pub. L. 101-630), Title IV, the
Indian Child Protection and Family Violence Prevention Act, grantees
shall conduct character and background investigations of those
personnel identified in that statute prior to their actual employment;
(11) The reasonableness and relevance of the estimated overall
costs of the proposed program or services and their overall relation to
the organization's funding base, activities, and mission;
(12) The degree to which the detailed annual budget and
justification for the requested funds are consistent with, and clearly
supported by, the proposed plan and by appropriate program services and
activities for the applicable grant year;
(13) The applicant's identification of any consultants and/or
subgrantees it proposes to employ; description of the services to be
rendered; the qualifications and experience of said personnel,
reflecting the requirements for performing the identified services; and
the basis for the cost and the amount to be paid for such services;
(14) Certification by a licensed accountant that the bookkeeping
and accounting procedures that the applicant uses or intends to use
meet existing Federal standards for grant administration and management
specified at Sec. 23.46;
(15) The compliance of property management and recordkeeping
systems with subpart D of 43 CFR part 2 (the Privacy Act, 5 U.S.C.
552a), and with existing Federal requirements for grants at 25 CFR
276.5 and 276.11, including the maintenance and safeguarding of direct
service case records on families and/or individuals served by the
grant;
(16) A description of the proposed facilities, equipment, and
buildings necessary to carry out the grant activities; and
(17) Proof of liability insurance coverage for the applicable grant
year(s).
(d) Two or more applications receiving the same competitive score
will be prioritized in accordance with announcements made in the
Federal Register pursuant to Sec. 23.31 (b) for the applicable year(s).
(e) Continued annual funding of a multi-year grant award to an off-
reservation ICWA program under this subpart shall be contingent upon
the availability of appropriated funds and upon the existing grant
program receiving a satisfactory program evaluation from the area
social services office for the previous year of operation. A copy of
this evaluation shall be submitted together with an annual budget and
budget narrative justification in accordance with paragraph (c) (10) of
this section. Minimum standards for receiving a satisfactory evaluation
shall include the timely submission of all fiscal and programmatic
reports; a narrative program report indicating work accomplished in
accordance with the initial approved multi-year plan; and the
implementation of mutually determined corrective action measures, if
applicable.
Sec. 23.34 Review and decision on off-reservation applications by Area
Director.
(a) Area office certification. Upon receipt of an application for a
grant by an off-reservation Indian organization at the area office, the
Area Director shall:
(1) Complete and sign the area office certification form. In
completing the area certification form, the Area Director shall assess
and certify whether applications contain and meet all the application
requirements specified at Sec. 23.33. Area Directors shall be
responsible for the completion of the area office certification forms
for all applications submitted by off-reservation Indian organizations.
(2) Acknowledge receipt of the application to the applicant and
advise the applicant of the disposition of the application within 10
days of receipt; and
(3) Transmit all applications within five working days of receipt
to the area review committee for competitive review and subsequent
approval or disapproval of the applications.
(b) Area office competitive review and decision for off-reservation
applications. Upon receipt of an application for an off-reservation
grant under this part requiring the approval of the Area Director, the
Area Director shall:
(1) Establish and convene an area review committee, chaired by a
person qualified by knowledge, training and experience in the delivery
of Indian child and family services.
(2) Review the area office certification form required in paragraph
(a) of this section.
(3) Review the application in accordance with the competitive
review procedures prescribed in Sec. 23.33. An application shall not
receive approval for funding under the area competitive review and
scoring process unless a review of the application determines that it:
(i) Contains all the information required in Sec. 23.33 which must
be received by the close of the application period. Modifications of
the grant application received after the close of the application
period shall not be considered in the competitive review process.
(ii) Receives at least the established minimum score in an area
competitive review, using the application selection criteria and
scoring process set out in Sec. 23.33. The minimum score shall be
established by the Central Office prior to each application period and
announced in the Federal Register for the applicable grants year(s).
(4) Approve or disapprove the application and promptly notify the
applicant in writing of the approval or disapproval of the application.
If the application is disapproved, the Area Director shall include in
the written notice the specific reasons therefore.
(c) The actual funding amounts for the initial grant year shall be
subject to appropriations available nationwide and the continued
funding of an approved off-reservation grant application under subpart
D of this part shall be subject to available funds received by the
respective area office for the applicable grant year. Initial funding
decisions and subsequent decisions with respect to funding level
amounts for all approved grant applications under this part shall be
made by the Area Director.
Sec. 23.35 Deadline for Central Office action.
Within 30 days of the receipt of grant reporting forms from the
Area Directors identifying approved and disapproved applications
pursuant to subpart D of this part and recommended funding levels for
approved applications, the Secretary or his/her designee shall process
the Area Directors' funding requests.
Subpart E--General and Uniform Grant Administration Provisions and
Requirements
Sec. 23.41 Uniform grant administration provisions, requirements and
applicability.
The general and uniform grant administration provisions and
requirements specified at 25 CFR part 276 and under this subpart are
applicable to all grants awarded to tribal governments and off-
reservation Indian organizations under this part, except to the extent
inconsistent with an applicable Federal statute, regulation or OMB
circular.
Sec. 23.42 Technical assistance.
(a) Pre-award and ongoing technical assistance may be requested by
an Indian tribe or off-reservation Indian organization from the
appropriate agency or area office to which the tribe or organization
will be submitting an application for funds under subparts C and D of
this part. A request for pre-award technical assistance by an off-
reservation Indian organization must be received by the Area Director
designated at Sec. 23.11 for the state in which the applicant is
located no later than 10 days prior to the application deadline to
assure sufficient time for area response.
(b) Pre-award and ongoing technical assistance may be provided by
the appropriate BIA agency or area office for purposes of program
planning and design, assistance in establishing internal program
monitoring and evaluation criteria for ongoing grant administration and
management, and for other appropriate assistance requested.
(c) The area social services staff shall provide technical
assistance to grantees upon receipt of an authorized request from the
grantee or when review of the grantee's quarterly performance reports
shows that:
(1) An ICWA program is yielding results that are or will be
detrimental to the welfare of the intended Indian beneficiaries of the
program;
(2) A program has substantially failed to implement its goals and
objectives;
(3) There are serious irregularities in the fiscal management of
the grant; or
(4) The grantee is otherwise deficient in its program performance.
(5) Upon receiving an authorized request from the grantee, the area
social services staff and/or grants officer shall provide the necessary
technical assistance to arrive at mutually determined corrective action
measures and their actual implementation, if necessary, and the
timeframes within which said corrective actions will be implemented.
Sec. 23.43 Authority for grant approval and execution.
(a) Tribal government programs. The appropriate Agency
Superintendent or Area Director may approve a grant application and its
subsequent execution under subpart C when the intent, purpose and scope
of the application pertains solely to reservations located within the
service area jurisdiction of the agency or area office.
(b) Off-reservation programs. The appropriate Area Director may
approve a grant application and its subsequent execution under subpart
D when the intent, purpose and scope of the grant proposal pertains to
off-reservation Indian service populations or programs.
Sec. 23.44 Grant administration and monitoring.
All grantees under this part shall be responsible for managing day-
to-day program operations to ensure that program performance goals are
being achieved and to ensure compliance with the provisions of the
grant award document and other applicable Federal requirements. Unless
delegated to the Agency Superintendent, appropriate area office
personnel designated by the Area Director shall be responsible for all
grant program and fiscal monitoring responsibilities.
Sec. 23.45 Subgrants.
A tribal government grantee may make a subgrant under subpart C of
this part, provided that such subgrants are for the purpose for which
the grant was made and that the grantee retains administrative and
financial responsibility over the activity and the funds.
Sec. 23.46 Financial management, internal and external controls and
other assurances.
Grantee financial management systems shall comply with the
following standards for accurate, current and complete disclosure of
financial activities.
(a) OMB Circular A-87 (Cost principles for state and local
governments and federally recognized Indian tribal governments).
(b) OMB Circular A-102 (Common rule 43 CFR part 12).
(c) OMB Circular A-128 (Single Audit Act).
(d) OMB Circular A-110 or 122 (Cost principles for non-profit
organizations and tribal organizations, where applicable).
(e) Internal control. Effective control and accountability must be
maintained for all grants. Grantees must adequately safeguard any
property and must ensure that it is used solely for authorized
purposes.
(f) Budget control. Actual expenditures must be compared with
budgeted amounts for the grant. Financial information must be related
to program performance requirements.
(g) Source documentation. Accounting records must be supported by
such source documentation as cancelled checks, paid bills, payrolls,
time and attendance records, grant documents, or other information
required by the grantee's financial management system. The Secretary or
his/her designee may review the adequacy of the financial management
system of an Indian tribe(s) or off-reservation Indian organization
applying for a grant under this part.
(h) Pursuant to 18 U.S.C. 641, whoever embezzles, steals, purloins,
or knowingly converts to his or her use or the use of another, or
without authority, sells, conveys or disposes of any record, voucher,
money, or thing of value of the United States or of any department or
agency thereof, or any property made or being made under contract for
the United States or any department or agency thereof; or whoever
receives, conceals, or retains the same with intent to convert it to
his or her use or gain, knowing it to have been embezzled, stolen,
purloined, or converted shall be fined not more than $10,000 or
imprisoned not more than 10 years, or both; but if the value of such
property does not exceed the sum of $100, he or she shall be fined not
more than $1,000 or imprisoned not more than one year, or both.
Sec. 23.47 Reports and availability of information to Indians.
(a) Any tribal government or off-reservation Indian organization
receiving a grant under this part shall make general programmatic
information and reports concerning that grant available to the Indian
people it serves or represents. Access to this information may be
requested in writing and shall be made available within 10 days of
receipt of the request. Except as required by title IV of Pub. L. 101-
630, the Indian Child Protection and Family Violence Prevention Act,
grantees shall hold confidential all information obtained from persons
receiving services from the program, and shall not release such
information without the individual's written consent. Information may
be disclosed in a manner which does not identify or lead to the
identification of particular individuals.
(b) Grantees shall submit Standard Form 269 or 269A on a quarterly
and an annual basis to report their status of funds by the dates
specified in the grant award document.
(c) Grantees shall furnish and submit the following written
quarterly and annual program reports by the dates specified in the
award document:
(1) Quarterly and annual statistical and narrative program
performance reports which shall include, but need not be limited to,
the following;
(i) A summary of actual accomplishments and significant activities
as related to program objectives established for the grant period;
(ii) The grantee's evaluation of program performance using the
internal monitoring system submitted in their application;
(iii) Reports on all significant ICWA direct service grant
activities including but not limited to the following information:
(A) Significant title II activities;
(B) Data reflecting numbers of individuals referred for out-of-home
placements, number of individuals benefiting from title II services and
types of services provided, and
(C) Information and referral activities.
(iv) Child abuse and neglect statistical reports and related
information as required by 25 U.S.C. 2434, Pub. L. 99-570, the Indian
Alcohol and Substance Abuse Prevention and Treatment Act of 1986;
(v) A summary of problems encountered or reasons for not meeting
established objectives;
(vi) Any deliverable or product required in the grant; and
(vii) Additional pertinent information when appropriate.
(2) The BIA may negotiate for the provision of other grant-related
reports not previously identified.
(d) Events may occur between scheduled performance reporting dates
which have significant impact on the grant-supported activity. In such
cases, the grantee must inform the awarding agency as soon as problems,
delays, adverse conditions, or serious incidents giving rise to
liability become known and which will materially impair its ability to
meet the objectives of the grant.
Sec. 23.48 Matching shares and agreements.
(a) Grant funds provided to Indian tribes under subpart C of this
part may be used as non-Federal matching shares in connection with
funds provided under titles IV-B, IV-E and XX of the Social Security
Act or such other Federal programs which contribute to and promote the
purposes of the Act as specified in Secs. 23.3 and 23.22 (25 U.S.C.
1931).
(b) Pursuant to 25 U.S.C. 1933, in furtherance of the
establishment, operation, and funding of programs funded under subparts
C and D of this part, the Secretary may enter into agreements with the
Secretary of Health and Human Services. The latter Secretary is
authorized by the Act to use funds appropriated for the Department of
Health and Human Services for programs similar to those funded under
subparts C and D of this part (25 U.S.C. 1931 and 1932), provided that
authority to make payment pursuant to such agreements shall be
effective only to the extent and in such amounts as may be provided in
advance by appropriation Acts.
Sec. 23.49 Fair and uniform provision of services.
(a) Grants awarded under this part shall include provisions
assuring compliance with the Indian Civil Rights Act; prohibiting
discriminatory distinctions among eligible Indian beneficiaries; and
assuring the fair and uniform provision by the grantees of the services
and assistance they provide to eligible Indian beneficiaries under such
grants. Such procedures must include criteria by which eligible Indian
beneficiaries will receive services, recordkeeping mechanisms adequate
to verify the fairness and uniformity of services in cases of formal
complaints, and an explanation of what rights will be afforded an
individual pending the resolution of a complaint.
(b) Indian beneficiaries of the services to be rendered under a
grant shall be afforded access to administrative or judicial bodies
empowered to adjudicate complaints, claims, or grievances brought by
such Indian beneficiaries against the grantee arising out of the
performance of the grant.
Sec. 23.50 Service eligibility.
(a) Tribal government Indian child and family service programs. Any
person meeting the definition of Indian, Indian child, Indian
custodian, or Indian parent of any unmarried person under the age of 18
as defined in Sec. 23.2 is eligible for services provided under 25
U.S.C. 1931 of the Act. Tribal membership status shall be determined by
tribal law, ordinance, or custom. The tribe may, under subpart C,
extend services to nontribal family members related by marriage to
tribal members, provided such services promote the intent and purposes
of the Act. A tribe may also, within available resources, extend
services under this part to individuals who are members of, or are
eligible for membership in other Indian tribes, and who reside within
the tribe's designated service area.
(b) Off-reservation Indian child and family service programs and
agreements with the Secretary of Health and Human Services pursuant to
25 U.S.C. 1933. For purposes of eligibility for services provided under
25 U.S.C. 1932 and 1933 of the Act, any person meeting the definition
of Indian, Indian child, Indian custodian, or Indian parent of any
unmarried person under the age of 18 as defined in Sec. 23.2, or the
definition of Indian as defined in 25 U.S.C. 1603(c), shall be eligible
for services. Tribal membership status shall be determined by tribal
law, ordinance, or custom.
Sec. 23.51 Grant carry-over authority.
Unless restricted by appropriation, and contingent upon
satisfactory program evaluations from the appropriate area or agency
office for an existing program, grantees are authorized to carry over
unliquidated grant funds which remain at the end of a budget period.
Such funds may be carried over for a maximum period of two years beyond
the initial grant funding period and must be utilized only for the
intent, purpose and scope of the original grant. These carry-over grant
funds shall not be reprogrammed into other appropriation activities or
subactivities. Funds carried over into another fiscal year will be
added to the grantee's new fiscal year funding amount.
Sec. 23.52 Grant suspension.
(a) When a grantee has materially failed to comply and remains out
of compliance with the terms and conditions of the grant, the grants
officer may, after reasonable notice to the grantee and the provision
of requested technical assistance, suspend the grant. The notice
preceding the suspension shall include the effective date of the
suspension, the corrective measures necessary for reinstatement of the
grant and, if there is no immediate threat to safety, a reasonable
timeframe for corrective action prior to actual suspension.
(b) No obligation incurred by the grantee during the period of
suspension shall be allowable under the suspended grant, except that
the grants officer may at his/her discretion allow necessary and proper
costs which the grantee could not reasonably avoid during the period of
suspension if such costs would otherwise be allowable under the
applicable cost principles.
(c) Appropriate adjustments to the payments under the suspended
grant will be made either by withholding the payments or by not
allowing the grantee credit for disbursements which the grantee may
make in liquidation of unauthorized obligations the grantee incurs
during the period of suspension.
(d) Suspension shall remain in effect until the grantee has taken
corrective action to the satisfaction of the grants officer, or given
assurances satisfactory to the grants officer that corrective action
will be taken, or until the grants officer cancels the grant.
Sec. 23.53 Cancellation.
(a) The grants officer may cancel any grant, in whole or in part,
at any time before the date of completion whenever it is determined
that the grantee has:
(1) Materially failed to comply with the terms and conditions of
the grant;
(2) Violated the rights as specified in Sec. 23.49 or endangered
the health, safety, or welfare of any person; or
(3) Been grossly negligent in, or has mismanaged the handling or
use of funds provided under the grant.
(b) When it appears that cancellation of the grant will become
necessary, the grants officer shall promptly notify the grantee in
writing of this possibility. This written notice shall advise the
grantee of the reason for the possible cancellation and the corrective
action necessary to avoid cancellation. The grants officer shall also
offer, and shall provide, if requested by the grantee, any technical
assistance which may be required to effect the corrective action. The
grantee shall have 60 days in which to effect this corrective action
before the grants officer provides notice of intent to cancel the grant
as provided for in paragraph (c) of this section.
(c) Upon deciding to cancel for cause, the grants officer shall
promptly notify the grantee in writing of that decision, the reason for
the cancellation, and the effective date. The Area Director or his/her
designated official shall also provide a hearing for the grantee before
cancellation. However, the grants officer may immediately cancel the
grant, upon notice to the grantee, if the grants officer determines
that continuance of the grant poses an immediate threat to safety. In
this event, the Area Director or his/her designated official shall
provide a hearing for the grantee within 10 days of the cancellation.
(d) The hearing referred to in paragraph (c) of this section shall
be conducted as follows:
(1) The grantee affected shall be notified, in writing, at least 10
days before the hearing. The notice should give the date, time, place,
and purpose of the hearing.
(2) A written record of the hearing shall be made. The record shall
include written statements submitted at the hearing or within five days
following the hearing.
Subpart F--Appeals
Sec. 23.61 Appeals from decision or action by Agency Superintendent,
Area Director or Grants Officer.
A grantee or prospective applicant may appeal any decision made or
action taken by the Agency Superintendent, Area Director, or grants
officer under subparts C or E of this part. Such an appeal shall be
made to the Assistant Secretary who shall consider the appeal in
accordance with 25 CFR 2.20 (c) through (e). Appeal procedures shall be
as set out in part 2 of this chapter.
Sec. 23.62 Appeals from decision or action by Area Director under
subpart D.
A grantee or applicant may appeal any decision made or action taken
by the Area Director under subpart D that is alleged to be in violation
of the U.S. Constitution, Federal statutes, or the regulations of this
part. These appeals shall be filed with the Interior Board of Indian
Appeals in accordance with 25 CFR 2.4 (e); 43 CFR 4.310 through 4.318
and 43 CFR 4.330 through 4.340. However, an applicant may not appeal a
score assigned to its application or the amount of grant funds awarded.
Sec. 23.63 Appeals from inaction of official.
A person or persons whose interests are adversely affected, or
whose ability to protect such interests is impeded by the failure of an
official to act on a request to the official, may make the official's
inaction the subject of an appeal under part 2 of this chapter.
Subpart G--Administrative Provisions
Sec. 23.71 Recordkeeping and information availability.
(a) (1) Any state court entering a final decree or adoptive order
for any Indian child shall provide the Secretary or his/her designee
within 30 days a copy of said decree or order, together with any
information necessary to show:
(i) The Indian child's name, birthdate and tribal affiliation,
pursuant to 25 U.S.C. 1951;
(ii) Names and addresses of the biological parents and the adoptive
parents; and
(iii) Identity of any agency having relevant information relating
to said adoptive placement.
(2) To assure and maintain confidentiality where the biological
parent(s) have by affidavit requested that their identity remain
confidential, a copy of such affidavit shall be provided to the
Secretary or his/her designee. Information provided pursuant to 25
U.S.C. 1951(a) is not subject to the Freedom of Information Act (5
U.S.C. 552), as amended. The Secretary or his/her designee shall ensure
that the confidentiality of such information is maintained. The address
for transmittal of information required by 25 U.S.C. 1951(a) is: Chief,
Division of Social Services, Bureau of Indian Affairs, 1849 C Street,
NW., Mail Stop 310-SIB, Washington, DC 20240. The envelope containing
all such information should be marked ``Confidential.'' This address
shall be sent to the highest court of appeal, the Attorney General and
the Governor of each state. In some states, a state agency has been
designated to be repository for all state court adoption information.
Where such a system is operative, that agency may assume reporting
responsibilities for the purposes of the Act.
(b) The Division of Social Services, Bureau of Indian Affairs, is
authorized to receive all information and to maintain a central file on
all state Indian adoptions. This file shall be confidential and only
designated persons shall have access to it. Upon the request of an
adopted Indian individual over the age of 18, the adoptive or foster
parents of an Indian child, or an Indian tribe, the Division of Social
Services shall disclose such information as may be necessary for
purposes of tribal enrollment or determining any rights or benefits
associated with tribal membership, except the names of the biological
parents where an affidavit of confidentiality has been filed, to those
persons eligible under the Act to request such information. The chief
tribal enrollment officer of the BIA is authorized to disclose
enrollment information relating to an adopted Indian child where the
biological parents have by affidavit requested anonymity. In such
cases, the chief tribal enrollment officer shall certify the child's
tribe, and, where the information warrants, that the child's parentage
and other circumstances entitle the child to enrollment consideration
under the criteria established by the tribe.
Subpart H--Assistance to State Courts
Sec. 23.81 Assistance in identifying witnesses.
Upon the request of a party in an involuntary Indian child custody
proceeding or of a court, the Secretary or his/her designee shall
assist in identifying qualified expert witnesses. Such requests for
assistance shall be sent to the Area Director designated
inSec. 23.11(c). The BIA is not obligated to pay for the services of
such expert witnesses.
Sec. 23.82 Assistance in identifying language interpreters.
Upon the request of a party in an Indian child custody proceeding
or of a court, the Secretary or his/her designee shall assist in
identifying language interpreters. Such requests for assistance should
be sent to the Area Director designated in Sec. 23.11(c). The BIA is
not obligated to pay for the services of such language interpreters.
Sec. 23.83 Assistance in locating biological parents of Indian child
after termination of adoption.
Upon the request of a child placement agency, the court or an
Indian tribe, the Secretary or his/her designee shall assist in
locating the biological parents or prior Indian custodians of an
adopted Indian child whose adoption has been terminated pursuant to 25
U.S.C. 1914. Such requests for assistance should be sent to the Area
Director designated in Sec. 23.11(c).
Marshall M. Cutsforth,
Acting Assistant Secretary--Indian Affairs.
[FR Doc. 94-570 Filed 1-12-94; 8:45 am]
BILLING CODE 4310-02-P
