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Whatever the human law may be, neither an individual nor a nation can commit the least act of injustice against the obscurest individual without having to pay the penalty for it. Henry David Thoreau

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FEDERAL LAW

Other than the Federal Indian Child Welfare Act there are currently no laws governing adoption search and reunion/reconciliation. There is a bill that has been proposed for years to create a federal reunion registry, but the time for this has long since passed, as we now know that registries do not work. More money and more control over our lives.

Federal law has made special provisions for adoptees who are of Native American descent. We are surprised at the numbers of adoptees who fall into this category who do not appear to be of Native American ancestry.

INDIAN CHILD WELFARE ACT of 1978

PUBLIC LAW 95-608

LAWS OF THE 95th CONGRESS - 2nd SESSION

SECTION 107. [aka 25 USC 1917] Upon application by an Indian individual who has reached the age of eighteen and who was the subject of an adoptive placement, the court which entered the final decree shall inform such individual of the tribal affiliation, if any, of the individual's biological parents and provide such other information as may be necessary to protect any rights from flowing from the individual's tribal relationship.

This is a little used fact in adoption laws. Federal laws over rule state laws. Some courts are ignoring this law.

The biggest problem is that many of us have an Indian heritage, but nothing in our records will indicate such, and we are not personally aware of it.

How much Indian ancestry counts? It is called blood quantum, or blood degree, and it varies according to the tribe. Some tribes have a cut-off at 1/8th, but others include less. To enroll as a Cherokee, all you have to do is trace back a direct connection to a relative who was on the 1904 roll.

In 1989 the Oregon state legislature enacted a new law to circumvent this. Oregon law now says that identifying information for purposes of tribal lineage is limited to the tribe itself, with the requirement they do not disclose identifying information to the adoptee. Direct conflict with federal law.

ICWA IMPLEMENTATION PROBLEMS ADDRESSED BY H.R. 2750

“INDIAN CHILD WELFARE ACT AMENDMENTS OF 2003”

H.R. 2750 addresses various issues that, since the Indian Child Welfare Act’s (ICWA) enactment, have affected the ability of Indian tribes, families, and children to secure the full protections of ICWA and that have complicated adoption proceedings involving Indian children. The following is a description of key problems encountered in the implementation of ICWA and provisions of H.R. 2750 that respond to these problems.

1. PROBLEM: Since enactment of ICWA, a number of courts and state legislatures have addressed the issue of whether it applies to all Indian children involved in child custody proceedings. Several of these courts have concluded that ICWA does not apply when an Indian child has not been part of an Indian family or has not maintained a social or cultural relationship with an Indian tribe. These rulings are sometimes referred to as the “existing Indian family exception” to ICWA. It is a judicially created “exception.” The effect of these rulings is to deny ICWA coverage to Indian children, families, and tribes in certain cases arising in several states while ICWA is applied to Indian children in the same types of cases arising in the majority of states. 

SOLUTION: H.R. 2750 clarifies that ICWA applies to all Indian children, regardless of whether an Indian child has been part of an Indian family or has maintained a social or cultural relationship with an Indian tribe.

1. PROBLEM: ICWA requires that in involuntary child custody proceedings active efforts are made to prevent the breakup of the Indian family prior to ordering the foster care placement of an Indian child or terminating the parental rights of a parent of an Indian child. It is not common for these active efforts to include the resources of the child’s extended family and tribe or of Indian social services agencies. As a consequence, culturally appropriate services are often not provided, and, as a consequence, the breakup of Indian families occurs in circumstances where it could have been prevented. See section 2 of the bill for this provision.

SOLUTION: H.R. 2750 requires that “active efforts” include the available resources of the Indian child’s extended family and tribe, Indian social service agencies, and Indian caregivers who have expertise in assisting Indian families in raising their children in a way that does not engender abuse or neglect. See section 7 of the bill for this provision.

• 3. PROBLEM:  Under ICWA, tribes have a right to intervene in voluntary Indian child custody proceedings.  These proceedings involve both public and private agencies and are often focused on placing an Indian child in a permanent adoptive home.  However, even though tribes have the right to intervene in these proceedings, ICWA does not require that notice of the proceeding be provided to tribes.  A few states do provide courtesy notice in voluntary proceedings, but the vast majority does not, and, in some cases, these agencies actively work to keep tribes out of the proceedings.  As a result, three things can happen: 1) tribes often do not learn of voluntary adoptive placements involving their tribal member children; 2) tribes learn about the proceedings when it is too late to change the placement; or 3) Indian children are placed in non-Indian homes with little regard for ICWA or tribal interests.  In addition, even in involuntary child custody proceedings involving Indian children, the notices provided to tribes often provide insufficient information to enable a tribe to make appropriate decisions concerning their involvement in the case or the best interest of the child.

SOLUTION: H.R. 2750 requires detailed notice to Indian tribes in all voluntary child custody proceedings and to parents and tribes in all involuntary proceedings.  The bill also lists specific information that must be provided in the notice. See section 7 of the bill for the involuntary proceeding notice provisions and section 10 for the voluntary proceeding notice provisions. Section 18 of the bill would add a new section 114 to ICWA that specifies the content of notices in both voluntary and involuntary proceedings.

• 4. PROBLEM:  Under ICWA, even though tribes have a right to intervene at any time in voluntary child custody proceedings, they often do not learn of the proceeding until after an adoptive placement, often with a non-Indian family, has been approved for the Indian child.  Even when a tribe intervenes at this late stage, the other parties, including the court, often view the tribal intervention as an unnecessary complication to an already approved adoptive placement.  The tribe’s ability to effectively advocate for its concerns or an alternative placement is seriously compromised.  In addition, voluntary proceedings sometimes commence before the court or parties seeking the placement are able to determine if a child is an Indian child because the child’s tribe was not notified and consequently did not intervene.  When this happens, the child is usually considered non-Indian, and ICWA is not applied. 

SOLUTION: H.R. 2750 clarifies the right of Indian tribes to intervene in all voluntary state court child custody proceedings, provided that the tribe files a notice of intent to intervene or a written objection within 45 days of receiving notice of a voluntary termination of parental rights or within 100 days of receiving notice of a particular adoptive placement and certifies that a child is a member or eligible for membership at the time the tribe intervenes. This amendment will facilitate tribal participation at an early stage in voluntary Indian child custody proceedings and assure that ICWA is applied whenever an Indian child is involved. See sections 5 and 11 of H.R. 2750 for these intervention provisions.

• 5. PROBLEM: Under ICWA, extended family members are a preferred placement for Indian children who require foster care or adoptive placement. ICWA does not require that notice be provided to extended family members regarding children who may be placed in foster care or for adoption. Some states require notice, but most do not. As a result, extended family members often do not learn of child custody proceedings involving Indian children, and it is common for Indian children to be placed with others even when a suitable extended family placement may be available.

SOLUTION: H.R. 2750 requires notice to extended family members and recognizes their right to intervene in state child custody proceedings. This will allow for extended family members to protect their preferred placement rights by giving them the opportunity to advocate that a child be placed with a member of his or her extended family. See sections 5, 7 and 13 the bill for these provisions.

• 6. PROBLEM:  Whether in a voluntary or an involuntary child custody proceeding, the parents of Indian children are frequently not fully informed of their legal rights under ICWA.  As a result, the ability of parents to secure the full protections of the law is undermined. This can lead to uninformed decisions being made and unnecessary pain and suffering for both the biological parents and any prospective foster or adoptive family.

SOLUTION: H.R. 2750 requires attorneys and public and private agencies to provide detailed information to Indian parents of their rights under ICWA. See sections 8 and 12 for these provisions.

• 7. PROBLEM: Under ICWA, consent to adoption or termination of parental rights may be revoked at any time prior to the entry of a final decree of adoption or termination and the child must then be returned to the parent. However, some courts have found that once a termination of parental rights is final and the parent has consented to that termination, there is no parental right to object to an adoption even if the adoption has not become final. In states where this interpretation has been adopted, many Indian parents have either been misled regarding their rights or have wrongly understood that their right to object to the adoption remained intact until a final decree of adoption was entered. Also, even where Indian parents clearly would have the right to object to an adoption until entry of the final decree, parents frequently are uninformed regarding the progress of the adoption proceeding and, therefore, do know the time frame within which their right to object must be exercised.

SOLUTION: H.R. 2750 limits parents’ rights to withdraw consent to an adoption to 6 months after relinquishment of the child or 30 days after the filing of an adoption petition, whichever is later. If the child is not in an adoptive placement, consent can be withdrawn even after these time periods. The amendment would require parents to be notified of the exact calendar date on which the right to withdraw must be exercised. In many of the jurisdictions where a final order terminating a parent’s parental rights was found to cut off any right to object to an adoption, the amendment would lengthen the time for a parent to object. See section 9 of H.R. 2750 for these provisions.

• 8. PROBLEM: Almost all Indian tribes in Alaska are not situated on reservations. The jurisdictional provisions of ICWA apply to Indian children who are domiciled or reside on an Indian reservation. With respect to off-reservation Indian children, ICWA permits a state court proceeding to be transferred to tribal jurisdiction. In addition, Alaska is a P.L. 83-280 state. All of these circumstances have caused confusion and litigation concerning the jurisdiction of Alaska tribes over Indian child custody proceedings

SOLUTION: H.R. 2750 clarifies tribal jurisdiction in Alaska over Indian child custody proceedings by recognizing that the State of Alaska and the tribes in Alaska have concurrent jurisdiction over child custody proceedings involving Indian children who reside in or are domiciled in Alaska, including proceedings involving these children that may arise outside of the State of Alaska. See section 3 of H.R. 2750 for these provisions.

• 9. PROBLEM: ICWA restricts tribal exclusive jurisdiction to tribes with reservations and tribes exercising jurisdiction over child custody proceedings after a transfer of jurisdiction from a state court. The communities of many tribes are located in areas that are not technically a “reservation” but that are cohesive in other ways. Yet, these tribes are not able to effectively protect their children, and the children are commonly the subject of state court child custody proceedings where tribal and Indian family concerns are often not appropriately considered.

SOLUTION: H.R. 2750 facilitates the ability of tribes without reservations, including tribes in Alaska and Oklahoma, to assume jurisdiction over child custody proceedings. See section 16 of H.R. 2750 for these provisions.

• 10. PROBLEM: ICWA permits a state court with legitimate jurisdiction over an Indian child custody proceeding to deny a request that the proceeding be transferred to the jurisdiction of the Indian child’s tribe for “good cause” or based on parental objection. The failure of ICWA to define “good cause” or to limit parental objections to those that are consistent with ICWA purposes has led to the denial of transfer to tribal courts in numerous cases for reasons that go far beyond original congressional intent. 

SOLUTION: H.R. 2750 narrows the grounds upon which state courts can refuse to transfer cases to tribal courts, limiting these grounds to jurisdictional and inconvenient forum considerations and limiting parental objections to those that are consistent with ICWA purposes. See section 4 of H.R. 2750 for these provisions.

• 11. PROBLEM: ICWA provides that Indian children who are tribal court wards remain within exclusive tribal court jurisdiction even if their residence or domicile changes. In some cases, state courts have applied this provision to deny tribal exclusive jurisdiction over children who became subject to tribal jurisdiction following a transfer of jurisdiction from a state court but who happen to be domiciled or resident outside of the tribe’s territorial jurisdiction.

SOLUTION: H.R. 2750 clarifies tribal court authority to exercise exclusive jurisdiction over Indian children subject to tribal jurisdiction, following transfer by a state court, regardless of the child’s residence or domicile. See section 3 of H.R. 2750 for these provisions.

• 12. PROBLEM: ICWA provides for certain alleged ICWA violations to be reviewed by “any court of competent jurisdiction.” Generally, federal courts have used jurisprudential and other reasons for not exercising jurisdiction to review alleged ICWA violations. The federal district court in Alaska is one notable exception. This has left most review to state appellate courts with the consequence that in a number of jurisdictions, ICWA provisions, when construed in ways that limit their force and effect, cannot be enforced in federal court. A related problem is the failure of ICWA to provide for federal agency review of state compliance with ICWA requirements. Perhaps the most prominent area of state non-compliance with these requirements is the widespread failure to place Indian children, when necessary, in accordance with ICWA placement preferences.  State agencies continue to place most Indian children in non-Indian homes despite the fact that ICWA intended to limit this practice.

SOLUTION: H.R. 2750 provides for federal court review of specified ICWA violations, defining the circumstances under which this review may occur during a pending state court proceeding and when it may occur after a final judgment in a state court proceeding. H.R. 2750 also provides for federal agency review of state ICWA compliance and a mechanism for enforcing state compliance with ICWA requirements in the event non-compliance is determined. The compliance provisions place special emphasis on securing State compliance with ICWA placement preference requirements. See section 14 of the bill for the federal court review provisions. Section 18 of the bill would add a new section 118 to ICWA providing for federal agency review of State ICWA compliance.

• 13. PROBLEM: In a number of cases, child custody proceedings involving Indian children have been held in circumstances where the court was not informed that the child was Indian despite knowledge of that fact by persons involved in the proceeding. As a result and as intended by those withholding this information, ICWA was not applied in the proceeding.

SOLUTION: H.R. 2750 provides for criminal sanctions for anyone who assists a person to lie about their Indian ancestry for the purposes of applying ICWA. See section 18 of the bill which would add a new section 115 to ICWA providing for these sanctions.

• 14. PROBLEM: In many states, post-adoption contact between adopted children and their natural families is not recognized. In a number of instances where Indian families and tribes were prepared to consent to the adoption of an Indian child by a non-Indian family, the adoption was either thwarted or rendered more difficult because of the legal impediment to post-adoption contact by the natural family.

SOLUTION: H.R. 2750 allows state courts to enter enforceable orders providing for visitation or contact between tribes, natural parents, extended family, and an adopted child. Section 18 of the bill would add a new section 116 to ICWA providing for such visitation or contact.

• 15. PROBLEM: ICWA is limited to covering children who are members of or eligible for membership in federally recognized tribes. Children who are members of tribes only recognized by a state and children who are not eligible for tribal membership but who have a parent who is a tribal member are not covered. As a consequence, tribal communities and Indian families and children who face the same types of problems motivating the enactment of ICWA are without ICWA protection. In addition, children who are members of tribes in Canada are also not covered by ICWA when they are in the United States. Yet, these children and their families have often been subject to the same kinds of State child welfare practices that caused the enactment of ICWA. The tribes of these children have also had their integrity threatened or impaired by these practices in the same way experienced by tribes in the United States prior to the enactment of ICWA.

SOLUTION: H.R. 2750 extends ICWA to cover children of state-recognized and Canadian Indian tribes (in some cases), and children who reside in or are domiciled on a reservation and are the children of a tribal member, but who are not themselves eligible for tribal membership. Section 18 of the bill would add a new section 119 to ICWA extending the coverage of specified ICWA provisions to the children of State-recognized and Canadian Indian tribes. Section 19 of the bill would amend the definition of “Indian child” to cover children not eligible for membership in a tribe under the conditions described in the paragraph.

• 16. PROBLEM: Under ICWA, Indian adoptees have a right to access state adoption records for the purpose of securing rights associated with their tribal relationship. In some jurisdictions, both procedural and substantive obstacles have curtailed this right.

SOLUTION: H.R. 2750 makes it easier for adoptees to gain access to their birth and adoption records. See section 15 of H.R. 2750 for this provision.

• 17. PROBLEM: Under ICWA, a tribally approved foster or adoptive home is equivalent to a state approved home for purposes of federal financial assistance.  This facilitates the use of tribal foster or adoptive homes by states and, therefore, state compliance with placement requirements for Indian children under ICWA.  However, conflicts and gaps in federal law have made it more confusing and difficult for states to use tribal foster care and adoptive homes. In addition, Indian families are often disqualified as placement resources for Indian children because of confusion regarding the background investigations that must be made before these families can be approved.

             SOLUTION: H.R. 2750 provides that a tribally approved foster or adoptive home shall be considered equivalent to a state approved home, regardless of conflicts in state or federal law. In addition, the bill would amend the Indian Child Protection and Family Violence Prevention Act (“ICPFVPA”) to provide that background investigations conducted under the ICPFVPA would satisfy the           foster or adoptive home background investigation requirements of any other Federal law. This amendment would also clarify that the foster or adoptive home licensing standards required under any Federal law are satisfied if a tribe licenses or approves a foster or adoptive home under standards that comply with the ICPFVPA. See sections 20 and 21 of the bill for these provisions.

For further information on this topic, please contact Chey Clifford-Stoltenberg at (503) 222-4044 or chey@nicwa.org or David Simmons at (503) 222-4044 or desimmons@nicwa.org. You may also visit our website at www.nicwa.org and click on the policy and research section.

Also, this from a tribal court in Oregon:

"Public Law 96-272 was amended in 1998 by the Adoption and Safe Families Act (hereafter ASFA). This federal law provides Tribes with matching funds for children in foster care. While the Tribe, as a sovereign nation, is free to ignore the federal law, to do so prevents
the Tribe from receiving considerable money from the federal government. To receive those funds, the Tribal Indian Child Welfare Program (hereafter ICW Program) must follow the requirements of the Act."

They're following ASFA, not because it is good for children, but so that they can receive federal funds. Otherwise, they are "free to ignore the federal law."

LEGISLATIVE HISTORY of H.R. 3286

H.R. 3286 was introduced by Representative Molinari on April 23, 1996 in the House of Representatives and was referred to the Committee on Ways and Means, the Committee on Resources, and the Committee on Economic and Educational Opportunities. The bill was favorably reported by the Committee on Resources with an amendment on April 30, 1996. On April 30, 1996, the Committee on Economic and Educational Opportunities was discharged of the bill and on May 3, 1996, the Committee on Ways and Means favorably reported the bill with an amendment. H.R. 3286 was passed by the House of Representatives on May 10, 1996.

In the Senate, the bill was referred to the Committee on Finance on May 13, 1996. On May 23, 1996 pursuant to a unanimous consent agreement, Titles I, II and IV of H.R. 3286 were referred to the Committee on Finance and Title III of H.R. 3286 was referred to the Committee on Indian Affairs for a period of ten (10) days of session after the Committee on Finance has reported the bill. On June 12, 1996, the Committee on Finance favorably reported H.R. 3286, with amendments to Titles, I, II, and IV. On June 19, 1996, the Committee on Indian Affairs, by a vote of 14 for, and 1 against, favorably reported H.R. 3286 with an amendment.

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COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business session on June 19, 1996, the Committee on Indian Affairs, by a vote of 14 for, and 1 against, ordered the bill reported with an amendment, with the recommendation that the Senate pass the bill as reported.

SECTION BY SECTION ANALYSIS

The Committee on Indian Affairs struck all of the provisions in Title III of H.R. 3286.

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COST AND BUDGETARY CONSIDERATIONS

The cost estimate for Title III of H.R. 3286 as amended, as calculated by the Congressional Budget Office is set forth below:

U.S. Congress,

Congressional Budget Office,

Washington, DC, June 20, 1996.

Hon. JOHN MCCAIN,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: The Congressional Budget Office has prepared a cost estimate for Title III of H.R. 3286, the Adoption Promotion and Stability Act of 1996, as ordered reported by the Senate Committee on Indian Affairs on June 19, 1996.

The committee adopted an amendment that would strike Title III of H.R. 3286. Therefore CBO estimates that Title III of H.R. 3286, as ordered reported by the Committee on Indian Affairs, would have no federal budgetary effects.

Since enactment would not affect direct spending or receipts, pay-as-you-go procedures would not apply to this title of the bill. Title III of H.R. 3286, as ordered reported, contains no mandates as defined in Public Law 104-4 and would impose no direct costs on state, local or tribal governments, or the private sector.

If you wish further details on this estimate, we will be pleased to provide them.

Sincerely,

James L. Blum,

(For June E. O'Neill, Director).

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REGULATORY IMPACT STATEMENT

Paragraph 11(b) of rule XXVI of the Standing Rules of the Senate requires each report accompanying a bill to evaluate the regulatory and paperwork impact that would be incurred in carrying out the bill. the Committee believes that striking Title III of H.R. 3286 will create no regulatory or paperwork impacts.

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EXECUTIVE COMMUNICATIONS

The Committee received the following executive communications from the Honorable Bruce Babbitt, Secretary of the Interior, U.S. Department of the Interior, and Mr. Andrew Fois, Assistant Attorney General, U.S. Department of Justice regarding Title III or H.R. 3286:

The Secretary of the nterior,

Washington, June 18, 1996.

Hon. JOHN MCCAIN,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.

DEAR MR. CHAIRMAN: In a letter to the Speaker, the President has stated his strong support for H.R. 3286 and its purpose of encouraging the adoption of children. However, in our role as trustee for Indians and Indian tribal governments, we would have serious concerns if an amendment were offered to H.R. 3286 for the purpose of amending the Indian Child Welfare Act of 1978 (Public Law 95-608). These concerns are addressed below.

The United States has a government-to-government relationship with Indian tribal governments. Protection of their sovereign status, including preservation of tribal identity and the determination of Indian tribal membership, is fundamental to this relationship. The Congress, after ten years of study, passed the Indian Child Welfare Act (ICWA) of 1978 (P.L. 95-608) as a means to remedy the many years of widespread separation of Indian children and families. The ICWA established a successful dual system that establishes exclusive tribal jurisdiction over Indian Child Welfare cases arising in Indian country, and presumes tribal jurisdiction in other cases involving Indian children, yet allows concurrent state jurisdiction in Indian child adoption and custody proceedings where good cause exists. This system, which authorizes tribal involvement and referral to tribal courts, has been successful in protecting the interests of Indian tribal governments, Indian children, and Indian families.

The ICWA amendments proposed in Title III of H.R. 3286, as introduced, would effectively dismantle this carefully crafted system by allowing state courts, instead of tribal courts with their specialized expertise, to make final judgments on behalf of tribal members. Such decisions would adversely affect tribal sovereignty over tribal members as envisioned by the ICWA and successfully implemented for the past 18 years.

We therefore urge the committee to disallow the reintroduction of Title III into this bill.

The Office of Management and Budget has advised that there is no objection to the presentation of this report from the standpoint of the Administration's program.

Sincerely,

BRUCE BABBITT.

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U.S. Department of Justice,

Office of Legislative Affairs,

Washington, DC, June 18, 1996.

Hon. JOHN MCCAIN,
Chairman, Senate Committee on Indian Affairs,
Washington, DC.

DEAR MR. CHAIRMAN: This letter presents the views of the Justice Department on H.R. 3286, the `Adoption Promotion and Stability Act of 1996.' We strongly support H.R. 3286 without the inclusion of title III. We also recommend that title II be modified to addressed the concerns below.

Title II

Section 201(a) of H.R. 3286 would allow any person denied the opportunity to be an adoptive or foster parent on the basis of race, color or national origin by a State, or any person aggrieved by a State's discrimination in making a placement decision in violation of the Act to sue the State in Federal court. To ensure that the immunity from suit granted States by the Eleventh Amendment does not prevent individuals from vindicating this right, we suggest that the bill include a provision clarifying that section 201 is enacted pursuant both to Congress' authority under section 5 of the Fourteenth Amendment and to its spending power under article I of the Constitution. Alternatively section 201 could be modified to expressly require a State to waive its Eleventh Amendment immunity from suits brought pursuant to H.R. 3286, as a condition of receiving Federal payments for foster care and adoption assistance.

Title III

A. Detrimental impact on tribal sovereignty

The proposed amendments interfere with tribal sovereignty and the right of tribal self-government. Among the attributes of Indian tribal sovereignty recognized by the Supreme Court, is the right to determine tribal membership. Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). Section 302 of H.R. 3286 provides that membership in a tribe is effective from the actual date of admission and that it shall not be given retroactive effect. For persons over 18 years of age, section 302 requires written consent for tribal membership. Many tribes do not regard tribal enrollment as coterminous with membership and the Department of Interior, in its guidelines on Indian child custody proceedings, has recognized that `[e]nrollment is the common evidentiary means of establishing Indian status, but is not the only means nor is it necessarily determinative.' 1

[Footnote] Through its membership restrictions, H.R. 3286 may force some tribal governments to alter enrollment and membership practices in order to preserve the application of the Indian Child Welfare Act (ICWA), 25 U.S.C. 1901 et seq., to their members.

[Footnote 1: Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,586 (Nov. 6, 1979).]

B. Detrimental impact on tribal court jurisdiction

H.R. 3286 would amend the ICWA to require a factural determination of whether an Indian parent maintains the requisite `significant social, cultural, or political affiliation' with a tribe to warrant the application of the Act. Title III fails to indicate which courts would have jurisdiction to conduct a factual determination into tribal affiliation. To the extent that State courts would make these determinations, H.R. 3286 would undercut tribal court jurisdiction, and essential aspect of tribal sovereignty. See Iowa Mutual Ins. Co. v. La Plante, 480 U.S. 9, 18 (1987). Reducing tribal court jurisdiction over Indian Child Welfare Act proceedings would conflict directly with the objectives of the ICWA and with prevailing law and policy regarding tribal courts.

The President, in his Memorandum on Government-to-Government Relations with Native American Tribal Governments (April 29, 1994), directed that tribal sovereignty be respected and tribal governments consulted to the greatest extent possible. Congress has found that `tribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health and safety and the political integrity of tribal governments, `See Indian Tribal Justice Act, 25 U.S.C. 3601(5). Retaining ICWA's regime of presumptive tribal jurisdiction crucial to maintaining harmonious relations with tribal governments, to ensuring that the tribes retain essential features of sovereignty and to guarding against the dangers that Congress identified when it enacted ICWA in 1978.

Thank you for the opportunity to comment on this matter. If we may be of additional assistance, please do not hesitate to call upon us. The Office of Management and Budget has advised that there is no objection to the submission of this letter from the standpoint of the Administration's program.

Sincerely,

Ann M. Harkiss,

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LEGISLATIVE HISTORY of S. 1962 (104th) and S. 569 (105th)

In the 104th Congress, the Committee held a hearing on June 26, 1996, on a draft discussion bill which served as the basis of S. 1962. S. 1962 was introduced on July 16, 1996 and referred to the Committee on Indian Affairs. On July 24, 1996, the Committee on Indian Affairs, by a vote of 13 for, 0 against, and I abstention, ordered the bill reported with the recommendation that the Senate pass the bill as reported. On September 26, 1996, S. 1962 passed the Senate by unanimous consent. No action was taken in the House on S. 1962 in the 104th Congress.

In the 105th Congress, S. 569 was introduced on April 14, 1997. S. 569 largely tracks S. 1962. On June 18, 1997, the Committee held a hearing on S. 569 as introduced. Based upon testimony presented at the hearing, an amendment in the nature of a substitute was prepared by the Chairman of the Committee, Senator Campbell.

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COMMITTEE RECOMMENDATION AND TABULATION OF VOTE

In an open business session on July 30, 1996, the Committee on Indian Affairs, by voice vote, adopted the amendment in the nature of a substitute offered by Senator Campbell and ordered the bill reported to the Senate, with the recommendation that the Senate pass S. 569 as reported.

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SECTION-BY-SECTION ANALYSIS

Section 1. Short title; references

Section 1 cites the short title of the bill as the `Indian Child Welfare Act Amendments of 1997' and clarifies that references in the bill to amendment or repeal relate to the Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.).

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Section 2. Exclusive jurisdiction

Section 2 adds a provision to 25 U.S.C. 1911(a) to clarify that an Indian tribe retains the exclusive jurisdiction it has lawfully acquired over any child otherwise made a ward of the tribal court when the child subsequently changes residence or domicile for treatment or other purposes.

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Section 3. Intervention in State court proceedings

Section 3 make a conforming technical amendment conditioning an Indian tribe's existing right of intervention under 25 U.S.C. 1911(c) to the time limitations added by section 8 of the bill.

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Section 4. Voluntary termination of parental rights

Section 4 amends 25 U.S.C. 1913(a) to clarify that the Act applies to voluntary consents in adoptive, preadoptive and foster care placements. In addition, section 4 adds a requirement that the presiding judge certify that any attorney or public or private agency facilitating the voluntary termination of parental rights or adoptive placement has informed the birth parents of the placement options available and of the applicable provisions of the Indian Child Welfare Act, and has certified that the birth parents will be notified within 10 days of any change in the adoptive placement. An Indian custodian vested with legal authority to consent to an adoptive placement is to be treated as a parent for purposes of these amendments, including the requirements governing notice provided or received and consent given or revoked.

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Section 5. Withdrawal of consent

Section 5 amends the Act by adding several new paragraphs to 25 U.S.C. 1913(b). The additional paragraphs would set limits on when an Indian birth parent may withdraw his or her consent to an adoption. Paragraph (2) would permit revocation of parental consent in only two instances before a final decree of adoption is entered except as proved in paragraph (4). First, a birth parent could revoke his or her consent if the original placement specified by the birth parent terminates before a final decree of adoption has been entered. Second, a birth parent could revoke his or her consent if the revocation is made before the end of a 30 day period that begins on the day that parent received notice of the commencement of the adoption proceeding or before the end of a 180 day period that begins on the day the Indian tribe has received notice of the adoptive placement, whichever period ends first. Paragraph (3) provides that upon the effective revocation of consent by a birth parent under the terms of paragraph (2), the child shall be returned to that birth parent. Paragraph (4) requires that if a birth parent has not revoked his or her consent within the time frames set forth in paragraph (2), thereafter he or she may revoke consent only pursuant to applicable State law or upon a finding by a court of competent jurisdiction that the consent was obtained through fraud or duress. Paragraph (5) provides that upon the effective revocation of consent by a birth parent under the terms of paragraph (4)(B), the child shall be returned to that birth parent and the decree vacated. Paragraph (6) provides that no adoption that has been in effect for a period of longer than or equal to two years can be invalidated under any of the conditions set forth in this section, including those related to a finding of duress or fraud.

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Section 6. Notice to Indian tribes

Section 6 requires notice to be provided to the Indian tribe by any person seeking to secure the voluntary placement of an Indian child or the voluntary termination of the parental rights of a parent of an Indian child. The notice must be provided no later than 100 days after a foster care placement occurs, no later than five days after a preadoptive or adoptive placement occurs, no later than ten days after the commencement of a proceeding for the termination of parental rights, and no later than ten days after the commencement of an adoption proceeding. Notice may be given prior to the birth of an Indian child if a particular placement is contemplated. If an Indian birth parent is discovered after the applicable notice periods have otherwise expired, despite a reasonable inquiry having been made on or before the commencement of the placement about whether the child may be an Indian child, the time limitations placed by section 8 upon the rights of an Indian tribe to intervene apply only if the party discovering the Indian birth parent provides notice to the Indian tribe under this section not later than ten days after making the discovery.

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Section 7. Content of notice

Section 7 requires that the notice provided under section 6 include the name of the Indian child involved and the actual or anticipated date and place of birth of the child, along with an identification, if known after reasonable inquiry, of the Indian parent, grandparent, and extended family members of the Indian child. The notice must also provide information on the parties and court proceedings pending in State court. The notice must inform the identified Indian tribe that it may have the right to intervene in the court proceeding, and must inquire whether the Indian tribe intends to intervene or waive its right to intervene. Finally, the notice must state that if the Indian tribe fails to respond by the statutory deadline, the right of that Indian tribe to intervene will be considered to have been waived.

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Section 8. Intervention by Indian tribe

Section 8 adds four new subsections to 25 U.S.C. 1913, which would limit the right of an Indian tribe to intervene in a court proceeding involving foster care placement, voluntary adoption, or termination of parental rights and which would authorize voluntary agreements for enforceable rights of visitation.

Under subsection (e), an Indian tribe could intervene in a voluntary proceeding to terminate parental rights only if it has filed a notice of intent to intervene or a written objection not later than 30 days after receiving the notice required by sections 6 and 7. An Indian tribe could intervene in a voluntary adoption proceeding only if it has filed a notice of intent to intervene or a written objection not later than the later of 90 days after receiving notice of the adoptive placement or 30 days after receiving notice of the adoption proceeding pursuant to sections 6 and 7. If these notice requirements are not complied with, the Indian tribe could intervene at any time. However, an Indian tribe may no longer intervene in a proceeding after it has provided written notice to a State court of its intention not to intervene or of its determination that neither the child nor any birth parent is a member of that Indian tribe. Finally, subsection (e) would require that an Indian tribe accompany a motion for intervention with a certification that documents the tribal membership or eligibility for membership of the Indian child under applicable tribal law.

Subsection (f) would clarify that the act or failure to act of an Indian tribe to intervene or not intervene under subsection (e) shall not affect any placement preferences or other rights accorded to individuals under the Act, nor may this preclude an Indian tribe from intervening in a case in which a proposed adoptive placement is changed.

Subsection (g) would prohibit any court proceeding involving the voluntary termination of parental rights or adoption of an Indian child from being conducted before the date that is 30 days after the Indian tribe has received notice under sections 6 and 7.

Subsection (h) would authorize courts to approve, as part of the adoption decree of an Indian child, a voluntary agreement made by an adoptive family that a birth parent, a member of the extended family, or the Indian tribe will have an enforceable right of visitation or continued contact after entry of the adoption decree. However, failure to comply with the terms of such agreement may not be considered grounds for setting aside the adoption decree.

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Section 9. Fraudulent representation

Section 9 would add a new section 114 to the Indian Child Welfare Act that would apply criminal sanctions to any person other than a birth parent who--(1) knowingly and willfully falsifies, conceals, or covers up a material fact concerning whether, for purposes of the Act, a child is an Indian child or a parent is an Indian; or (2) makes any false or fraudulent statement, omission, or representation, or falsifies a written document knowing that the document contains a false or fraudulent statement or entry relating to a material fact described in (1). Assisting in the removal of a child from the United States in order to thwart the application of the Act is also prohibited. Upon conviction of an initial violation, a person shall be subjected to the fine prescribed in 18 U.S.C. 3571 for a Class A misdemeanor (not more than $100,000), imprisonment for not more than 1 year, or both. Upon conviction of any subsequent violation, a person shall be subjected to the fine prescribed in 18 U.S.C. 3751 for a felony (not more than $250,000), imprisonment for not more than 5 years, or both.

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Section 10. Placement of Indian children

Section 10 clarifies Congress' intent with respect to placement preferences expressed by birth parents. The amendment makes clear that the views of the birth parent may be part of a court's determination that `good cause' exists to deviate from the Act's preferences. Because courts are only to be guided by the birth parent's preferences after they finding (or determining) that it is appropriate to do so, it is imperative that courts review the circumstances surrounding this decision to ensure that it is the product of an informed, rational choice.

1990

Indian Child Protection and Family Violence Prevention Act

Congress refers to “the historical and special relationship of the Federal Government with Indian

people,” and (like the Indian Child Welfare Act, (like 25 U.S.C. 1901), finds that “the United States has

a direct interest, as trustee, in protecting Indian children” (25 U.S.C. 3201(1)(F)).

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