KCSE AnnualKCSE AnnualConferenceConference

Tribal and State Tribal and State Jurisdiction in Jurisdiction in

Enforcement and Enforcement and EstablishmentEstablishment

Presented byPresented by

Marsha L. HarlanMarsha L. Harlan

Authority for Tribal IV-D Authority for Tribal IV-D ProgramsPrograms

45 C.F.R. Part 309 (March 30, 2004)45 C.F.R. Part 309 (March 30, 2004) Prior to enactment of Personal Prior to enactment of Personal

Responsibility and Work Opportunity Responsibility and Work Opportunity Reconciliation Act (PRWORA), Reconciliation Act (PRWORA), authority to operate IV-D programs authority to operate IV-D programs was vested solely with States.was vested solely with States.

Tribal IV-D ProgramsTribal IV-D Programs The first tribal program (Chickasaw Nation The first tribal program (Chickasaw Nation

of Oklahoma) was initiated in 1996 prior to of Oklahoma) was initiated in 1996 prior to the final rule.the final rule.

Tribal IV-D began with 9 tribes initiating Tribal IV-D began with 9 tribes initiating programs prior to the final rule.programs prior to the final rule.

After the passage of PRWORA, 24 more After the passage of PRWORA, 24 more tribes were funded.tribes were funded.

Currently more than 40 Tribes with Currently more than 40 Tribes with Comprehensive Programs.Comprehensive Programs.

Approximately 10 tribes are in “Start Up” Approximately 10 tribes are in “Start Up” Phase.Phase.

Tribal vs State JurisdictionTribal vs State Jurisdiction(Generally)(Generally)

Exclusive Tribal jurisdictionExclusive Tribal jurisdiction Tribes have exclusive jurisdiction over Tribes have exclusive jurisdiction over

civil matters arising in Indian Country civil matters arising in Indian Country against tribal members.against tribal members.

Concurrent jurisdictionConcurrent jurisdiction Matters involving Indians against non-Matters involving Indians against non-

Indians.Indians. Public Law 280: States have concurrent Public Law 280: States have concurrent

jurisdiction of civil matters in Indian jurisdiction of civil matters in Indian Country.Country.

““Indian” - DefinedIndian” - Defined

45 C.F.R. §309.0545 C.F.R. §309.05 Indian means a person who is a Indian means a person who is a

member of an Indian Tribe.member of an Indian Tribe.

““Indian Tribe” and “Tribe” Indian Tribe” and “Tribe” DefinedDefined

45 C.F.R. §309.0545 C.F.R. §309.05 Indian Tribe means any Indian or Alaska Indian Tribe means any Indian or Alaska

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

““Indian Country” -DefinedIndian Country” -Defined 18 U.S.C. §115118 U.S.C. §1151

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

Establishment of Establishment of PaternityPaternity

Establishment of Tribal Paternity is Establishment of Tribal Paternity is governed by 45 C.F.R. §309.100governed by 45 C.F.R. §309.100

Establishment requirements for Establishment requirements for states are located at 45 C.F.R. §303.5states are located at 45 C.F.R. §303.5

Paternity (continued…)Paternity (continued…)

Similarities in the regulatory Similarities in the regulatory requirements as to Tribes and requirements as to Tribes and StatesStates

Distinctions between the two Distinctions between the two federal regulationsfederal regulations

Jurisdiction to Jurisdiction to Establish PaternityEstablish Paternity

Factors to consider:Factors to consider: Tribal member statusTribal member status Residence of the partiesResidence of the parties Where conception occurredWhere conception occurred Whether the State is a Public Law 280 Whether the State is a Public Law 280

jurisdictionjurisdiction

Establishment of Establishment of Support OrdersSupport Orders

Establishment of Tribal Support Establishment of Tribal Support Orders is regulated by 45 C.F.R. Orders is regulated by 45 C.F.R. §309.105§309.105

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

Requirements of Federal Requirements of Federal RegulationsRegulations

Both Federal Regulations require Both Federal Regulations require similar provisions; however, Tribes similar provisions; however, Tribes may accept “non-cash” payments to may accept “non-cash” payments to satisfy support obligations.satisfy support obligations.

Caveat: “Non-cash” payments shall Caveat: “Non-cash” payments shall not satisfy assigned support not satisfy assigned support obligations.obligations.

Jurisdiction to Establish Jurisdiction to Establish Support OrdersSupport Orders

Factors to consider:Factors to consider: Tribal membershipTribal membership ResidencyResidency Whether public assistance is provided by Whether public assistance is provided by

the Statethe State Public Law 280 StatePublic Law 280 State

Enforcement of Support Enforcement of Support OrdersOrders

Tribal Enforcement RemediesTribal Enforcement Remedies Income WithholdingIncome Withholding

State Enforcement Remedies State Enforcement Remedies Income WithholdingIncome Withholding JudgmentsJudgments Liens and LevyLiens and Levy Federal Tax InterceptFederal Tax Intercept State Income Tax Refund OffsetState Income Tax Refund Offset Financial Institution Data Match (FIDM)Financial Institution Data Match (FIDM) License RevocationLicense Revocation Credit Bureau ReportingCredit Bureau Reporting Posting of BondsPosting of Bonds

Enforcement cont…Enforcement cont…

Both Tribal and State IV-D programs are Both Tribal and State IV-D programs are required by federal regulation to address required by federal regulation to address modifications in order to comply with the modifications in order to comply with the requirements for IV-D funding.requirements for IV-D funding. States are specifically required to review cases States are specifically required to review cases

for modification every three (3) years at the for modification every three (3) years at the request of either party, in public assistance request of either party, in public assistance cases, or by the State’s own procedure.cases, or by the State’s own procedure.

Tribes are left to determine their own Tribes are left to determine their own review/modification procedures but are review/modification procedures but are required to address the process in their IV-D required to address the process in their IV-D plan.plan.

Enforcing Enforcing Intergovernmental Support Intergovernmental Support

OrdersOrders Intergovernmental cases are those Intergovernmental cases are those

where one party who is entitled to where one party who is entitled to receive support lives in one Tribe, receive support lives in one Tribe, State, or country and the obligor State, or country and the obligor resides in another.resides in another.

Modification and Enforcement of Modification and Enforcement of intergovernmental cases.intergovernmental cases.

Intergovernmental Intergovernmental EnforcementEnforcement

Uniform Interstate Family Support Act Uniform Interstate Family Support Act - 42 U.S.C.§666(f) - 42 U.S.C.§666(f) Required by every State BUT Tribes are Required by every State BUT Tribes are

not required to adopt UIFSAnot required to adopt UIFSA Full Faith and Credit for Child Support Full Faith and Credit for Child Support

Orders Act - 28 U.S.C. 1738B(b)Orders Act - 28 U.S.C. 1738B(b) Applies to ALL Tribes and StatesApplies to ALL Tribes and States

Federal Regulations Requiring Federal Regulations Requiring Tribal–State CooperationTribal–State Cooperation

States are required to cooperate with States are required to cooperate with Tribal IV-D programs pursuant to 45 Tribal IV-D programs pursuant to 45 C.F.R. §302.36(a)(2).C.F.R. §302.36(a)(2).

Tribes are required to cooperate with Tribes are required to cooperate with States pursuant to 45 C.F.R. States pursuant to 45 C.F.R. §309.120(a).§309.120(a).