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KCSE Annual Conference Tribal and State Jurisdiction in Enforcement and Establishment

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)

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KCSE Annual Conference Tribal and State Jurisdiction in Enforcement and Establishment

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  1. KCSE AnnualConferenceTribal and State Jurisdiction in Enforcement and Establishment • Presented by • Marsha L. Harlan

  2. Authority for Tribal IV-D Programs • 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.

  3. Tribal IV-D Programs • 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. • After the passage of PRWORA, 24 more tribes were funded. • Currently more than 40 Tribes with Comprehensive Programs. • Approximately 10 tribes are in “Start Up” Phase.

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

  5. “Indian” - Defined • 45 C.F.R. §309.05 • Indian means a person who is a member of an Indian Tribe.

  6. “Indian Tribe” and “Tribe” Defined • 45 C.F.R. §309.05 • 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.

  7. “Indian Country” -Defined • 18 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.

  8. Establishment of Paternity • Establishment of Tribal Paternity is governed by 45 C.F.R. §309.100 • Establishment requirements for states are located at 45 C.F.R. §303.5

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

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

  11. Establishment of Support Orders • Establishment of Tribal Support Orders is regulated by 45 C.F.R. §309.105 • Establishment of State Support Orders is regulated by 45 C.F.R. §302.56

  12. Requirements of Federal Regulations • 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.

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

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

  15. 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. • 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.

  16. 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. • Modification and Enforcement of intergovernmental cases.

  17. Intergovernmental Enforcement • Uniform Interstate Family Support Act - 42 U.S.C.§666(f) • 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) • Applies to ALL Tribes and States

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

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