Cherokee Nation among plaintiffs challenging AFCARS reporting

BY D. SEAN ROWLEY
Senior Reporter
09/15/2020 12:30 PM
SAN FRANCISCO – Claiming that the Trump administration has illegally removed requirements that allow relevant agencies to identify tribal and LGBT youths in foster care, a coalition that includes the Cherokee Nation has filed suit against the U.S. Department of Health and Human Services and the Administration for Children and Families. 

The coalition of plaintiffs is represented in the suit by Democracy Forward, Lambda Legal and the Michigan State University College of Law’s Indian Law Clinic.

“Cherokee Nation is the largest tribe in the country with Cherokee children involved in foster care cases in every state,” said Principal Chief Chuck Hoskin Jr. “Requiring states to report their (Indian Child Welfare Act) compliance ensures that our Cherokee children are protected by ICWA in state court systems. We were disappointed when the ICWA reporting elements were removed from the regulation and are hopeful that they will be restored through this case. The Cherokee Nation will continue to lead the way when it comes to defending ICWA in order to protect our children.”

Plaintiffs said they are responding to a breach of law announced by administration officials in May regarding requirements to report data on Native and LGBT teens and children in foster care. A Democracy Forward release claims the ACF broke the law and “undid more than a decade of hard work.”

The group said the ACF: “Ignored the lost benefits that collecting the data would offer foster children, youth, and families; abandoned its prior conclusions, analysis, and long-standing positions on the benefits of demographic data without sufficient reason or explanation; failed to consider HHS’s core statutory requirement to collect ‘comprehensive national information’ about the ‘demographics,’ ‘status,’ and ‘characteristics’ of foster children and youth; refused to consider arguments and alternatives other than its favored ones.”

Plaintiffs cited an overrepresentation of American Indian and LGBT youths in foster care.

“These vulnerable populations have unique needs, yet suffer negative treatment and outcomes – including separation from their culture, homelessness, abuse, sex trafficking, involvement in the criminal justice system and more – at a far higher rate than other children and youth in foster care,” Democracy Forward said. The ICWA requires that American Indian foster children be placed with relatives or tribal citizens when possible. Despite this requirement, child welfare agencies too often remove American Indian children from their tribal communities and ignore the roles and rights of tribes to participate in the foster care process.”

The Adoption and Foster Care Analysis and Reporting System collects data and tracks long-term outcomes of those in foster care. ACF placed new AFCARS requirements in 2016 applying to Indian tribes, Native children and LGBT in foster care. The adjustments mandated reporting of how agencies monitor American Indian children and gather ICWA-related data. It also required reporting of voluntary disclosures of the sexual orientation of foster teens ages 14 and older, and of their foster or legal guardians. 

Such data “would help direct resources more effectively, and would help reduce the frequency of bad outcomes for children and youth,” Democracy Forward said. 

“Without the data, the entities that assist these at-risk populations are left guessing on matters of critical importance,” the group said. “Organizations providing services to LGBTQ+ youth cannot, for example, determine whether they are reaching the full population of LGBTQ+ youth in the child welfare system, address their over-representation in foster care, determine if they face increased risk of trafficking, or track outcomes by race. And tribes don’t know, for example, if their tribal citizen children are placed in foster care or whether ICWA requirements are being applied. 

A group of Democratic federal lawmakers, including House Ways and Means Committee Chairman Richard Neal of Massachusetts; Oversight Subcommittee Chairman John Lewis of Georgia, Worker and Family Support Subcommittee Chairman Danny K. Davis of Illinois; and Senate Finance Committee Ranking Member Ron Wyden of Oregon, released a statement shortly after the change was announced.

“The Trump Administration rule issued today throws out important data points established in an Obama-era rule to modernize AFCARS data standards,” the statement read. “The Trump rule specifically eliminates data collection related to LGBTQ+ foster and adoptive families in the child welfare system – data that is essential to gauge recruitment and retention of diverse foster and adoptive families. The Trump rule also makes data reporting changes that undermine the intent of the Indian Child Welfare Act to keep tribal families together and to respect the unique needs of tribal communities.” 

Plaintiffs include the CN, California Tribal Families Coalition, Yurok Tribe, Facing Foster Care in Alaska, Ark of Freedom Alliance, Ruth Ellis Center and True Colors Inc.

Click here to view the court documents.
About the Author
Sean Rowley was hired by the Cherokee Phoenix at the beginning of 2019. Sean was born a long time ago in Tulsa, where he grew up and attended Booker T. Washington High School as a freshman before moving to Pawnee County and graduating from Cleveland High School in 1987. 

He graduated sans honors from Northeastern State University in 1992 with a bachelor of arts in mass communication with emphases in advertising and public relati ...
david-rowley@cherokee.org • 918-453-5560
Sean Rowley was hired by the Cherokee Phoenix at the beginning of 2019. Sean was born a long time ago in Tulsa, where he grew up and attended Booker T. Washington High School as a freshman before moving to Pawnee County and graduating from Cleveland High School in 1987. He graduated sans honors from Northeastern State University in 1992 with a bachelor of arts in mass communication with emphases in advertising and public relati ...

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