NOTE: As provided in LFC policy, this report is intended for use by the standing finance committees of the legislature.  The Legislative Finance Committee does not assume responsibility for the accuracy of the information in this report when used in any other situation.

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(Parenthesis ( ) Indicate Expenditure Decreases)

Relates to Indian Child Welfare Act

SOURCES OF INFORMATION

Children, Youth and Families Department (CYFD)

Department of Health (DOH)

Office of Indian Affairs (OIA)

SUMMARY

Synopsis of HJC Amendment

House Judiciary Committee amendment number one makes services to Indian children "pursuant to intergovernmental agreements"; amendment number two provides that services will be provided to Indian children "utilizing tribal, state and federal funds and pursuant to intergovernmental agreements."

Synopsis of Bill

House Bill 232, introduced for the Courts, Corrections and Criminal Justice Committee and the Indian Affairs Committee, clarifies that Indian children have the same right to services that are available to other children in the state. The bill also amends a section of the NMSA 1978 requiring that state courts and CYFD recognize tribal court orders related to delinquent offenses committed by Native American youth, regardless of whether the delinquent offense is committed on an Indian reservation, or if the tribal court order conforms to the requirements of the Delinquency Article of the Children's Code.

Significant Issues

The Children, Youth and Families Department currently has many Indian children in its custody, both abused and neglected, as well as being delinquents. These children receive the same services as other children in the state. At issue would be balancing the needs of children who are in tribal custody or under the jurisdiction of the tribal court.

CYFD analysis is concerned that the bill does not follow the principles governing full, faith and credit concerning court orders between separate sovereigns. If another state desires to have a court order enforced in a New Mexico state court, then a process must be followed to make sure that the foreign state's court order conforms to New Mexico law and public policy. House Bill 232 does not allow this process.

In delinquency cases, the court orders from tribal courts must conform to procedures, public policy and law as reflected in the Children's Code. This bill does not require a court order issued from a tribal court to conform to the requirements of the Children's Code and may violate the principles of comity between sovereigns and would violate the due process protections set up for juvenile offenders who are court ordered to participate in the services CYFD provides. The bill does not consider that delinquent acts committed on the Indian reservation are federal crimes. The Children's Code only lists those offenses which are violations of state law and CYFD's responsibility to provide services. It is also important to note that even though tribal court orders placing a child are recognized, the facility retains complete control to discharge the child.

The services provided to children under the Children's Code are provided by state employees who do not have the right or authority to provide services on Indian country. Tribes would have to consent and details would have to be negotiated to allow a state employee's interface with tribal members on tribal lands, without violating tribal rights.

House Bill 232 would eliminate the provision that Indian children subject to the Children's Mental Health and Developmental Disabilities Code would be exempted from the provision that tribal orders shall be recognized and enforced. The Department of Health's concern regarding this provision is the state's guarantee against inappropriate detention in a mental health facility. There is also a great concern of children being ordered by tribal courts into expensive placements without a provision indicating how the provider will be paid. The bill places the responsibility for payment on the state without the state having the authority to comply with federal requirements to access federal funds.

FISCAL IMPLICATIONS

CYFD feels there would be a tremendous potential fiscal impact on their department. The Navajo Tribe estimated that 230 children in New Mexico who are under tribal jurisdiction due to abuse or neglect could be eligible for state services. The number of children in tribal custody in other tribes is unknown, however, the numbers would be a significant increase in foster care payments, care and support payments, and social worker time. If a funding requirement is not tied to an intergovernmental agreement, federal funds and tribal resources would not offset the cost and could cause a significant impact on the general fund. Any additional cost of services to Indian children not presently receiving services would have to be absorbed within existing budgets.

It is recommended that intergovernmental agreements must be in place before tribal courts can issue orders obligating state payment of services. The agreements would eliminate the potential for inconsistency, loss of federal funds and violation of tribal sovereignty.

ADMINISTRATIVE IMPLICATIONS

Depending on the number of cases that would be generated by House Bill 232, such as a need for additional caseworkers, there could be an administrative impact on the CYFD. It is also possible that tribal courts, children's court attorneys, agency attorneys, and possibly district attorneys, may have to bring and prosecute actions in Tribal courts at greater efforts due to the shift of jurisdiction.

POSSIBLE QUESTIONS

• •Tribes receive independent federal funds to administer child welfare services or have services provided directly by the Bureau of Indian Affairs. Will those resources be taken into account in the provision of services to children in tribal custody?

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