KCSE Annual Conference Tribal and State Jurisdiction in Enforcement and Establishment Presented by Marsha L. Harlan

Authority for Tribal IV-D Programs 45 C.F.R. Part 309 (March 30, 2004) 45 C.F.R. Part 309 (March 30, 2004) Prior to enactment of Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), authority to operate IV-D programs was vested solely with States. Prior to enactment of Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), authority to operate IV-D programs was vested solely with States.

Tribal IV-D Programs The first tribal program (Chickasaw Nation of Oklahoma) was initiated in 1996 prior to the final rule. The first tribal program (Chickasaw Nation of Oklahoma) was initiated in 1996 prior to the final rule. Tribal IV-D began with 9 tribes initiating programs prior to the final rule. Tribal IV-D began with 9 tribes initiating programs prior to the final rule. After the passage of PRWORA, 24 more tribes were funded. After the passage of PRWORA, 24 more tribes were funded. Currently more than 40 Tribes with Comprehensive Programs. Currently more than 40 Tribes with Comprehensive Programs. Approximately 10 tribes are in “Start Up” Phase. Approximately 10 tribes are in “Start Up” Phase.

Tribal vs State Jurisdiction (Generally) Exclusive Tribal jurisdiction Exclusive Tribal jurisdiction Tribes have exclusive jurisdiction over civil matters arising in Indian Country against tribal members. Tribes have exclusive jurisdiction over civil matters arising in Indian Country against tribal members. Concurrent jurisdiction Concurrent jurisdiction Matters involving Indians against non-Indians. Matters involving Indians against non-Indians. Public Law 280: States have concurrent jurisdiction of civil matters in Indian Country. Public Law 280: States have concurrent jurisdiction of civil matters in Indian Country.

“Indian” - Defined 45 C.F.R. § C.F.R. § Indian means a person who is a member of an Indian Tribe. Indian means a person who is a member of an Indian Tribe.

“Indian Tribe” and “Tribe” Defined 45 C.F.R. § C.F.R. § Indian Tribe means any Indian or Alaska Native Tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe and includes in the list of Federally-recognized Indian Tribal governments as published in the Federal Register pursuant to 25 U.S.C. 479a-1. Indian Tribe means any Indian or Alaska Native Tribe, band, nation, pueblo, village, or community that the Secretary of the Interior acknowledges to exist as an Indian Tribe and includes in the list of Federally-recognized Indian Tribal governments as published in the Federal Register pursuant to 25 U.S.C. 479a-1.

“Indian Country” -Defined 18 U.S.C. § U.S.C. §1151 Indian Country is defined as (a) all land within the limits of an Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same. Indian Country is defined as (a) all land within the limits of an Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a State, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Establishment of Paternity Establishment of Tribal Paternity is governed by 45 C.F.R. § Establishment of Tribal Paternity is governed by 45 C.F.R. § Establishment requirements for states are located at 45 C.F.R. §303.5 Establishment requirements for states are located at 45 C.F.R. §303.5

Paternity (continued…) Similarities in the regulatory requirements as to Tribes and States Similarities in the regulatory requirements as to Tribes and States Distinctions between the two federal regulations Distinctions between the two federal regulations

Jurisdiction to Establish Paternity Factors to consider: Factors to consider: Tribal member status Tribal member status Residence of the parties Residence of the parties Where conception occurred Where conception occurred Whether the State is a Public Law 280 jurisdiction Whether the State is a Public Law 280 jurisdiction

Establishment of Support Orders Establishment of Tribal Support Orders is regulated by 45 C.F.R. § Establishment of Tribal Support Orders is regulated by 45 C.F.R. § Establishment of State Support Orders is regulated by 45 C.F.R. § Establishment of State Support Orders is regulated by 45 C.F.R. §302.56

Requirements of Federal Regulations Both Federal Regulations require similar provisions; however, Tribes may accept “non-cash” payments to satisfy support obligations. Both Federal Regulations require similar provisions; however, Tribes may accept “non-cash” payments to satisfy support obligations. Caveat: “Non-cash” payments shall not satisfy assigned support obligations. Caveat: “Non-cash” payments shall not satisfy assigned support obligations.

Jurisdiction to Establish Support Orders Factors to consider: Factors to consider: Tribal membership Tribal membership Residency Residency Whether public assistance is provided by the State Whether public assistance is provided by the State Public Law 280 State Public Law 280 State

Enforcement of Support Orders Tribal Enforcement Remedies Tribal Enforcement Remedies Income Withholding Income Withholding State Enforcement Remedies State Enforcement Remedies Income Withholding Income Withholding Judgments Judgments Liens and Levy Liens and Levy Federal Tax Intercept Federal Tax Intercept State Income Tax Refund Offset State Income Tax Refund Offset Financial Institution Data Match (FIDM) Financial Institution Data Match (FIDM) License Revocation License Revocation Credit Bureau Reporting Credit Bureau Reporting Posting of Bonds Posting of Bonds

Enforcement cont… Both Tribal and State IV-D programs are required by federal regulation to address modifications in order to comply with the requirements for IV-D funding. Both Tribal and State IV-D programs are required by federal regulation to address modifications in order to comply with the requirements for IV-D funding. States are specifically required to review cases for modification every three (3) years at the request of either party, in public assistance cases, or by the State’s own procedure. States are specifically required to review cases for modification every three (3) years at the request of either party, in public assistance cases, or by the State’s own procedure. Tribes are left to determine their own review/modification procedures but are required to address the process in their IV-D plan. Tribes are left to determine their own review/modification procedures but are required to address the process in their IV-D plan.

Enforcing Intergovernmental Support Orders Intergovernmental cases are those where one party who is entitled to receive support lives in one Tribe, State, or country and the obligor resides in another. Intergovernmental cases are those where one party who is entitled to receive support lives in one Tribe, State, or country and the obligor resides in another. Modification and Enforcement of intergovernmental cases. Modification and Enforcement of intergovernmental cases.

Intergovernmental Enforcement Uniform Interstate Family Support Act - 42 U.S.C.§666(f) Uniform Interstate Family Support Act - 42 U.S.C.§666(f) Required by every State BUT Tribes are not required to adopt UIFSA Required by every State BUT Tribes are not required to adopt UIFSA Full Faith and Credit for Child Support Orders Act - 28 U.S.C. 1738B(b) Full Faith and Credit for Child Support Orders Act - 28 U.S.C. 1738B(b) Applies to ALL Tribes and States Applies to ALL Tribes and States

Federal Regulations Requiring Tribal–State Cooperation States are required to cooperate with Tribal IV-D programs pursuant to 45 C.F.R. §302.36(a)(2). States are required to cooperate with Tribal IV-D programs pursuant to 45 C.F.R. §302.36(a)(2). Tribes are required to cooperate with States pursuant to 45 C.F.R. § (a). Tribes are required to cooperate with States pursuant to 45 C.F.R. § (a).