[Congressional Record Volume 142, Number 104 (Tuesday, July 16, 1996)]
[Senate]
[Pages S7900-S7905]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCAIN (for himself, Mr. Inouye, Mr. Glenn, Mr. Thomas, 
        Mr. Domenici, Mrs. Kassebaum, Mr. Cochran, Mr. Murkowski, Mr. 
        Campbell and Mr. Simon):

  S. 1962. A bill to amend the Indian Child Welfare Act of 1978, and 
for other purposes; to the Committee on Indian Affairs.


                  THE INDIAN CHILD WELFARE ACT OF 1978

  Mr. McCAIN. Mr. President, I rise today with great pleasure to 
introduce a measure which has been laboriously crafted to resolve many 
of the differences between Indian tribes and advocates of adoption. The 
voices of reason and good will have prevailed. The measure I am 
introducing today, along with Senators Inouye, Thomas, Domenici, 
Kassebaum, Cochran, Murkowski, Campbell, Glenn, and Simon, enjoys the 
support of both the Indian tribes and the adoption community.
  The bill reflects a very delicate compromise. But fragile it is not. 
Its strength lies in both the process by which it was developed and the 
substance it embodies.
  More than one year ago, several high-profile cases adoption cases 
captured national attention because they involved Indian children 
caught in protracted legal disputes under the Indian

[[Page S7901]]

Child Welfare Act of 1978 [ICWA]. Adoption advocates believed these 
cases would provide political support for amendments they had long 
sought to the act. Indian tribes felt like they were under siege, 
battling distorted news stories about what the ICWA does and does not 
do while simultaneously having to fend off overly broad amendments to 
ICWA. As more time passed, the rhetoric heightened, the stakes of the 
game rose, and positions hardened.
  It is remarkable that a few visionaries on both sides ventured away 
from these battle lines last year to begin to talk with each other 
about what common ground might exist. These talks began a long process 
of negotiation over possible compromise amendments to ICWA. Over time, 
the protagonists began to see ways in which some of each side's 
objectives could be accomplished through common agreement. Mr. 
President, I know it is perhaps an over-used phrase, but I can think of 
no more fitting example of a win-win resolution of an otherwise 
intractable problem.
  ICWA was enacted in 1978 in response to growing concern over the 
consequences to Indian children, families and tribes of the separation 
of large numbers of Indian children from their families and tribes 
through adoption or foster care placements by the State courts. Studies 
conducted by the Association of American Indian Affairs [AAIA] in the 
mid-1970s revealed that 25 to 35 percent of all Indian children had 
been separated from their families and placed into adoptive families, 
foster care, or other institutions. For example, in the State of 
Minnesota nearly one in every four Indian children under the age of 1 
year was placed for adoption between 1971 and 1972, and approximately 
90 percent of adoptive placements of Indian children at that time were 
with non-Indian families. In response, Congress protected both the best 
interest of Indian children and the interest of Indian tribes in the 
welfare of their children, by carefully crafting ICWA to make use of 
the roles traditionally played by Indian tribes and families in the 
welfare of their children through a unique jurisdictional framework, 
favorably described in the majority opinion of the United States 
Supreme Court in Mississippi Band of Choctaw Indians versus Holyfield 
as follows:

       At the heart of the ICWA are its provisions concerning 
     jurisdiction over Indian child custody proceedings. Section 
     1911 lays out a dual jurisdictional scheme. Section 1911(a) 
     establishes exclusive jurisdiction in the tribal courts for 
     proceedings concerning an Indian child 'who resides or is 
     domiciled within the reservation of such tribe,' as well as 
     for wards of tribal courts regardless of domicile. Section 
     1911(b), on the other hand, creates concurrent but 
     presumptively tribal jurisdiction in the case of children not 
     domiciled on the reservation: on petition of either parent or 
     the tribe, state-court proceedings for foster care placement 
     or termination of parental rights are to be transferred to 
     the tribal court, except in cases of 'good cause,' objection 
     by either parent, or declination of jurisdiction by the 
     tribal court. 490 U.S. 30, 36 (1989).

  The issue of Indian child welfare stirs the deepest emotions. Nothing 
is more sacred than children. And while developing common ground is 
always extremely difficult during a battle, it is especially difficult 
on such a deeply personal issue.
  As with all compromises, I am sure each side would prefer language 
that is better for them. I am told many Indian tribes would rather not 
have any amendments at all, and that many in the adoption community 
would rather have the House-passed amendments be the law of the land. 
But on behalf of the Indian children and their parents, both biological 
and adoptive, I want to extend my personal thanks to persons on both 
sides of this debate who have led the way to a compromise in which both 
sides, and most importantly, Indian children, are the winners.
  I am especially grateful for the position taken by the Indian tribes, 
and particularly, for the leadership of the National Congress of 
American Indians [NCAI], its President, the Honorable Ron Allen and his 
able NCAI staff, and that of Terry Cross, Jack Trope, Mike Walleri and 
other tribal leaders or representatives associated with the National 
Indian Child Welfare Association [NICWA], Tanana Chiefs Conference, and 
others. Their efforts to reach out to the adoption community, even as 
the debate was quickening, made all the difference.
  Likewise, I am indebted to the courage and foresight that led 
adoption advocates like Jane Gorman and Marc Gradstein to pursue a 
reasonable and fair-minded approach in dialogue with their tribal 
counterparts. These two practicing attorneys gave many hours to the 
task of fashioning a compromise that has now been endorsed by their 
colleagues in the American Academy of Adoption Attorneys and the 
Academy of California Adoption Attorneys.
  Finally, I want to commend the tribal delegates and representatives 
who labored for many long hours at the mid-year convention of the 
National Congress of American Indians in Tulsa, OK in early June in 
order to respond to the request I and Congressman Don Young, Chairman 
of the House Committee on Resources, made to them, asking that they 
work in good faith with adoption attorneys to finalize a minimum set of 
compromise amendment provisions that could be adopted as an alternative 
to the House-passed amendments. I am told that hundreds of delegates 
worked around the clock for several days to come up with the language 
that I am introducing today. The process makes for a remarkable story.
  And the product is even more remarkable. The bill I am introducing 
today will amend the Indian Child Welfare Act of 1978 to better serve 
the best interests of Indian children without trampling on tribal 
sovereignty and without eroding fundamental principles of Federal-
Indian law.
  The compromise bill would achieve greater certainty and speed in 
adoptions involving Indian children through new guarantees of early and 
effective notice in all cases combined with new, strict time 
restrictions placed on both the right of Indian tribes and families to 
intervene and the right of Indian birth parents to revoke their consent 
to an adoptive placement. The compromise bill would encourage early 
identification of the relatively few cases involving controversy, and 
promote settlement of cases by making visitation agreements 
enforceable.
  It would limit when and how an Indian family or tribe may intervene 
in an adoption case involving an Indian child; 25 U.S.C. 1911(c) and 
1913(e) would be substantially amended to curtail the present right of 
an Indian family or tribe to intervene at any point in the proceeding. 
Under the compromise, this right of intervention could be exercised 
only within the following periods of time: within 30 days of receipt of 
notice of a termination of parental rights proceeding, or within the 
later of 90 days of receipt of notice of an adoptive placement or 30 
days of receipt of notice of a voluntary adoption proceeding. With 
proper notice, an Indian tribe's failure to act within these timeframes 
early in the placement proceedings would be considered final. An Indian 
tribe's waiver of its right to intervene would be considered binding. 
If an Indian tribe seeks to intervene, it must accompany its motion 
with a certification that the child at issue is, or is eligible to be, 
a member of the tribe and it must provide documentation of this 
pursuant to tribal law.
  The compromise bill would limit when an Indian biological parent may 
withdraw his or her consent to adoption or termination of parental 
rights; 25 U.S.C. 1913(b) would be substantially amended to curtail the 
present right of an Indian parent to withdraw his or her consent to an 
adoption placement or termination of parental rights at any time prior 
to entry of a final decree. Under the bill, such consent could be 
withdrawn before a final decree of adoption has been entered only if 
less than 6 months has passed since the Indian child's tribe received 
the required notice, or if the adoptive placement specified by 
the parent ends, or if less than 30 days has passed since the adoption 
proceeding began. An Indian biological parent may otherwise revoke 
consent only under applicable State law. In the case of fraud or 
duress, an Indian biological parent may seek to invalidate an adoption 
up to 2 years after the adoption has been in effect, or within a longer 
period established by the applicable State law.

  This legislation would require those facilitating an adoption to 
provide early and effective notice and information to Indian tribes; 25 
U.S.C. 1913 would be substantially amended to add a requirement for 
notice to be sent to the Indian child's tribe by a party seeking to 
place or to effect a voluntary termination of parental rights

[[Page S7902]]

concerning a child known to be an Indian. Under the bill, this notice 
must be sent by registered mail within 100 days following a foster care 
placement, within 5 days following a pre-adoptive or adoptive 
placement, and within 10 days of the commencement of a termination of 
parental rights proceeding or adoption proceeding. The bill would 
specify the particular information that is to be provided. In addition, 
25 U.S.C 1913(a) would be amended to require a certification by the 
State court that the attorney or public or private agency facilitating 
the voluntary termination of parental rights or adoptive placement has 
informed the biological parents of their placement options and of other 
provisions of ICWA and has certified that the natural parents will be 
notified within 10 days of any change in the adoptive placement.
  The compromise bill would authorize and encourage open adoptions and 
enforceable visitation agreements between Indians and non-Indians; 25 
U.S.C. 1913 would be amended to encourage and facilitate voluntary 
agreements between Indian families or tribes and non-Indian adoptive 
families for enforceable rights of visitation or continued contact 
after entry of an adoption decree. This provision would have the effect 
of authorizing such agreements where independent authority does not 
exist in a particular State's law. This should help encourage early 
identification and settlement of controversial cases.
  Finally, this bill would apply penalties for fraud and 
misrepresentation as a sanction against efforts to evade 
responsibilities under the act. The bill would apply criminal penalties 
to any efforts to encourage or facilitate fraudulent representations or 
omissions regarding whether a child or biological parent is an Indian 
for purposes of the act. The exclusive jurisdiction of tribal courts 
under 25 U.S.C. 1911(a) would be clarified to continue once a child is 
properly made a ward of that tribal court, regardless of the location 
of the treatment ordered by the court. And the bill would make a few 
minor changes to existing law to clarify several issues which have 
caused delays in child custody and placement proceedings.
  I view this compromise bill as a wholly appropriate and fair-minded 
alternative to the title III provisions which the Committee on Indian 
Affairs voted on June 19 to strike from H.R. 3286, the Adoption 
Promotion and Stability Act of 1996. Title III, proposed by 
Congresswoman Deborah Pryce, would substantially amend ICWA in ways I 
and many others on the committee concluded would eviscerate the act. 
Title III was passed by the House in May by a narrow margin after 
extended debate. The Senate Committee on Indian Affairs deleted that 
controversial title because of our serious concern about the breadth of 
its language and the fundamental changes it would make to the 
government-to-government relations between the United States and Indian 
tribes. Title III was strenuously opposed by virtually every tribal 
government in the Nation and by the Justice and Interior Departments.

  At the same time, I told Congresswoman Pryce that I and many others 
believed that some of the problems identified by her and other 
proponents of title III were legitimate. It seemed to me that adoptive 
families seek certainty, speed, and stability throughout the adoption 
process. They do not want surprises that threaten to take away from 
them a child they have loved and cared for after they have followed the 
law. At the same time, Indian tribes have long sought early and 
substantive notice of proposed adoptions and the continued protections 
of tribal sovereignty. They do not want to learn that their young 
tribal members have been placed for adoption outside of the Indian 
community many months or years after the fact.
  I was pleased to see that the negotiators of the compromise bill 
responded to these concerns. And I am extremely pleased to say that 
Congresswoman Pryce has indicated to me she will now lend her support 
to prompt enactment of this landmark, compromise legislation. Because 
it is a delicately balanced package, I am strongly committed to moving 
this compromise language without substantial change as quickly as 
possible through the Senate and the House in the remaining weeks before 
the close of this Congress. Mr. President, I ask my colleagues to join 
me in this effort.
  There is no doubt in my mind that in the case of an Indian child 
there are special interests that must be taken into account during an 
adoption placement process. But these interests, as provided for in 
ICWA, must serve the best interests of the Indian child. And those best 
interests are best served by certainty, speed, and stability in making 
adoptive placements with the participation of Indian tribes. This is 
the key, these concerns can be addressed in ways that preserve 
fundamental principles of tribal sovereignty by recognizing and 
preserving the appropriate role of tribal governments in the lives of 
Indian children.
  Mr. President, I urge my colleagues to support the compromise bill so 
that the agreement reached by the parties can be realized.
  Mr. President, I ask unanimous consent that additional material be 
printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                S. 1962

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE; REFERENCES.

       (a) Short Title.--This Act may be cited as the ``Indian 
     Child Welfare Act Amendments of 1996''.
       (b) References.--Whenever in this Act an amendment or 
     repeal is expressed in terms of an amendment to or repeal of 
     a section or other provision, the reference shall be 
     considered to be made to a section or other provision of the 
     Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.).

     SEC. 2. EXCLUSIVE JURISDICTION.

       Section 101(a) (25 U.S.C. 1911(a)) is amended--
       (1) by inserting ``(1)'' after ``(a)''; and
       (2) by striking the last sentence and inserting the 
     following:
       ``(2) An Indian tribe shall retain exclusive jurisdiction 
     over any child custody proceeding that involves an Indian 
     child, notwithstanding any subsequent change in the residence 
     or domicile of the Indian child, in any case in which the 
     Indian child--
       ``(A) resides or is domiciled within the reservation of the 
     Indian tribe and is made a ward of a tribal court of that 
     Indian tribe; or
       ``(B) after a transfer of jurisdiction is carried out under 
     subsection (b), becomes a ward of a tribal court of that 
     Indian tribe.''.

     SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.

       Section 101(c) (25 U.S.C. 1911(c)) is amended by striking 
     ``In any State court proceeding'' and inserting ``Except as 
     provided in section 103(e), in any State court proceeding''.

     SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.

       Section 103(a) (25 U.S.C. 1913(a)) is amended--
       (1) by inserting ``(1)'' before ``Where'';
       (2) by striking ``foster care placement'' and inserting 
     ``foster care or preadoptive or adoptive placement'';
       (3) by striking ``judge's certificate that the terms'' and 
     inserting the following: ``judge's certificate that--
       ``(A) the terms'';
       (4) by striking ``or Indian custodian.'' and inserting ``or 
     Indian custodian; and'' ;
       (5) by inserting after subparagraph (A), as designated by 
     paragraph (3) of this subsection, the following new 
     subparagraph:
       ``(B) any attorney or public or private agency that 
     facilitates the voluntary termination of parental rights or 
     preadoptive or adoptive placement has informed the natural 
     parents of the placement options with respect to the child 
     involved, has informed those parents of the applicable 
     provisions of this Act, and has certified that the natural 
     parents will be notified within 10 days of any change in the 
     adoptive placement.'';
       (6) by striking ``The court shall also certify'' and 
     inserting the following:
       ``(2) The court shall also certify'';
       (7) by striking ``Any consent given prior to,'' and 
     inserting the following:
       ``(3) Any consent given prior to,''; and
       (8) by adding at the end the following new paragraph:
       ``(4) An Indian custodian who has the legal authority to 
     consent to an adoptive placement shall be treated as a parent 
     for the purposes of the notice and consent to adoption 
     provisions of this Act.''.

     SEC. 5. WITHDRAWAL OF CONSENT.

       Section 103(b) (25 U.S.C. 1913(b)) is amended--
       (1) by inserting ``(1)'' before ``Any''; and
       (2) by adding at the end the following new paragraphs:
       ``(2) Except as provided in paragraph (4), a consent to 
     adoption of an Indian child or voluntary termination of 
     parental rights to an Indian child may be revoked, only if--
       ``(A) no final decree of adoption has been entered; and
       ``(B)(i) the adoptive placement specified by the parent 
     terminates; or
       ``(ii) the revocation occurs before the later of the end 
     of--

[[Page S7903]]

       ``(I) the 180-day period beginning on the date on which the 
     Indian child's tribe receives written notice of the adoptive 
     placement provided in accordance with the requirements of 
     subsections (c) and (d); or
       ``(II) the 30-day period beginning on the date on which the 
     parent who revokes consent receives notice of the 
     commencement of the adoption proceeding that includes an 
     explanation of the revocation period specified in this 
     subclause.
       ``(3) The Indian child with respect to whom a revocation 
     under paragraph (2) is made shall be returned to the parent 
     who revokes consent immediately upon an effective revocation 
     under that paragraph.
       ``(4) Subject to paragraph (6), if, by the end of the 
     applicable period determined under subclause (I) or (II) of 
     paragraph (2)(B)(ii), a consent to adoption or voluntary 
     termination of parental rights has not been revoked, 
     beginning after that date, a parent may revoke such a consent 
     only--
       ``(A) pursuant to applicable State law; or
       ``(B) if the parent of the Indian child involved petitions 
     a court of competent jurisdiction, and the court finds that 
     the consent to adoption or voluntary termination of parental 
     rights was obtained through fraud or duress.
       ``(5)(A) Subject to paragraph (6), if a consent to adoption 
     or voluntary termination of parental rights is revoked under 
     paragraph (4)(B), with respect to the Indian child involved--
       ``(i) in a manner consistent with paragraph (3), the child 
     shall be returned immediately to the parent who revokes 
     consent; and
       ``(ii) if a final decree of adoption has been entered, that 
     final decree shall be vacated.
       ``(6) Except as otherwise provided under applicable State 
     law, no adoption that has been in effect for a period longer 
     than or equal to 2 years may be invalidated under this 
     subsection.''.

     SEC. 6. NOTICE TO INDIAN TRIBES.

       Section 103(c) (25 U.S.C. 1913(c)) is amended to read as 
     follows:
       ``(c)(1) A party that seeks the voluntary placement of an 
     Indian child or the voluntary termination of the parental 
     rights of a parent of an Indian child shall provide written 
     notice of the placement or proceeding to the Indian child's 
     tribe. A notice under this subsection shall be sent by 
     registered mail (return receipt requested) to the Indian 
     child's tribe, not later than the applicable date specified 
     in paragraph (2) or (3).
       ``(2)(A) Except as provided in paragraph (3), notice shall 
     be provided under paragraph (1) in each of the following 
     cases:
       ``(i) Not later than 100 days after any foster care 
     placement of an Indian child occurs.
       ``(ii) Not later than 5 days after any preadoptive or 
     adoptive placement of an Indian child.
       ``(iii) Not later than 10 days after the commencement of 
     any proceeding for a termination of parental rights to an 
     Indian child.
       ``(iv) Not later than 10 days after the commencement of any 
     adoption proceeding concerning an Indian child.
       ``(B) A notice described in subparagraph (A)(ii) may be 
     provided before the birth of an Indian child if a party 
     referred to in paragraph (1) contemplates a specific adoptive 
     or preadoptive placement.
       ``(3) If, after the expiration of the applicable period 
     specified in paragraph (2), a party referred to in paragraph 
     (1) discovers that the child involved may be an Indian 
     child--
       ``(A) the party shall provide notice under paragraph (1) 
     not later than 10 days after the discovery; and
       ``(B) any applicable time limit specified in subsection (e) 
     shall apply to the notice provided under subparagraph (A) 
     only if the party referred to in paragraph (1) has, on or 
     before commencement of the placement made reasonable inquiry 
     concerning whether the child involved may be an Indian 
     child.''.

     SEC. 7. CONTENT OF NOTICE.

       Section 103(d) (25 U.S.C. 1913(d)) is amended to read as 
     follows:
       ``(d) Each written notice provided under subsection (c) 
     shall contain the following:
       ``(1) The name of the Indian child involved, and the actual 
     or anticipated date and place of birth of the Indian child.
       ``(2) A list containing the name, address, date of birth, 
     and (if applicable) the maiden name of each Indian parent and 
     grandparent of the Indian child, if--
       ``(A) known after inquiry of--
       ``(i) the birth parent placing the child or relinquishing 
     parental rights; and
       ``(ii) the other birth parent (if available); or
       ``(B) otherwise ascertainable through other reasonable 
     inquiry.
       ``(3) A list containing the name and address of each known 
     extended family member (if any), that has priority in 
     placement under section 105.
       ``(4) A statement of the reasons why the child involved may 
     be an Indian child.
       ``(5) The names and addresses of the parties involved in 
     any applicable proceeding in a State court.
       ``(6)(A) The name and address of the State court in which a 
     proceeding referred to in paragraph (5) is pending, or will 
     be filed; and
       ``(B) the date and time of any related court proceeding 
     that is scheduled as of the date on which the notice is 
     provided under this subsection.
       ``(7) If any, the tribal affiliation of the prospective 
     adoptive parents.
       ``(8) The name and address of any public or private social 
     service agency or adoption agency involved.
       ``(9) An identification of any Indian tribe with respect to 
     which the Indian child or parent may be a member.
       ``(10) A statement that each Indian tribe identified under 
     paragraph (9) may have the right to intervene in the 
     proceeding referred to in paragraph (5).
       ``(11) An inquiry concerning whether the Indian tribe that 
     receives notice under subsection (c) intends to intervene 
     under subsection (e) or waive any such right to intervention.
       ``(12) A statement that, if the Indian tribe that receives 
     notice under subsection (c) fails to respond in accordance 
     with subsection (e) by the applicable date specified in that 
     subsection, the right of that Indian tribe to intervene in 
     the proceeding involved shall be considered to have been 
     waived by that Indian tribe.''.

     SEC. 8. INTERVENTION BY INDIAN TRIBE.

       Section 103 (25 U.S.C. 1913) is amended by adding at the 
     end the following new subsections:
       ``(e)(1) The Indian child's tribe shall have the right to 
     intervene at any time in a voluntary child custody proceeding 
     in a State court only if--
       ``(A) in the case of a voluntary proceeding to terminate 
     parental rights, the Indian tribe filed a notice of intent to 
     intervene or a written objection to the termination, not 
     later than 30 days after receiving notice that was provided 
     in accordance with the requirements of subsections (c) and 
     (d); or
       ``(B) in the case of a voluntary adoption proceeding, the 
     Indian tribe filed a notice of intent to intervene or a 
     written objection to the adoptive placement, not later than 
     the later of--
       ``(i) 90 days after receiving notice of the adoptive 
     placement that was provided in accordance with the 
     requirements of subsections (c) and (d); or
       ``(ii) 30 days after receiving a notice of the voluntary 
     adoption proceeding that was provided in accordance with the 
     requirements of subsections (c) and (d).
       ``(2)(A) Except as provided in subparagraph (B), the Indian 
     child's tribe shall have the right to intervene at any time 
     in a voluntary child custody proceeding in a State court in 
     any case in which the Indian tribe did not receive written 
     notice provided in accordance with the requirements of 
     subsections (c) and (d).
       ``(B) An Indian tribe may not intervene in any voluntary 
     child custody proceeding in a State court if the Indian tribe 
     gives written notice to the State court or any party involved 
     of--
       ``(i) the intent of the Indian tribe not to intervene in 
     the proceeding; or
       ``(ii) the determination by the Indian tribe that--
       ``(I) the child involved is not a member of, or is not 
     eligible for membership in, the Indian tribe; or
       ``(II) neither parent of the child is a member of the 
     Indian tribe.
       ``(3) If an Indian tribe files a motion for intervention in 
     a State court under this subsection, the Indian tribe shall 
     submit to the court, at the same time as the Indian tribe 
     files that motion, a certification that includes a statement 
     that documents, with respect to the Indian child involved, 
     the membership or eligibility for membership of that Indian 
     child in the Indian tribe under applicable tribal law.
       ``(f) Any act or failure to act of an Indian tribe under 
     subsection (e) shall not--
       ``(1) affect any placement preference or other right of any 
     individual under this Act;
       ``(2) preclude the Indian tribe of the Indian child that is 
     the subject of an action taken by the Indian tribe under 
     subsection (e) from intervening in a proceeding concerning 
     that Indian child if a proposed adoptive placement of that 
     Indian child is changed after that action is taken; or
       ``(3) except as specifically provided in subsection (e), 
     affect the applicability of this Act.
       ``(g) Notwithstanding any other provision of law, no 
     proceeding for a voluntary termination of parental rights or 
     adoption of an Indian child may be conducted under applicable 
     State law before the date that is 30 days after the Indian 
     child's tribe receives notice of that proceeding that was 
     provided in accordance with the requirements of subsections 
     (c) and (d).
       ``(h) Notwithstanding any other provision of law (including 
     any State law)--
       ``(1) a court may approve, as part of an adoption decree of 
     an Indian child, an agreement that states that a birth 
     parent, an extended family member, or the Indian child's 
     tribe shall have an enforceable right of visitation or 
     continued contact with the Indian child after the entry of a 
     final decree of adoption; and
       ``(2) the failure to comply with any provision of a court 
     order concerning the continued visitation or contact referred 
     to in paragraph (1) shall not be considered to be grounds for 
     setting aside a final decree of adoption.''.

     SEC. 9. FRAUDULENT REPRESENTATION.

       Title I of the Indian Child Welfare Act of 1978 is amended 
     by adding at the end the following new section:

     ``SEC. 114. FRAUDULENT REPRESENTATION.

       ``(a) In General.--With respect to any proceeding subject 
     to this Act involving an Indian child or a child who may be 
     considered to be an Indian child for purposes of this Act, a 
     person, other than a birth parent of the child, shall, upon 
     conviction, be subject to a criminal sanction under 
     subsection (b) if that person--

[[Page S7904]]

       ``(1) knowingly and willfully falsifies, conceals, or 
     covers up by any trick, scheme, or device, a material fact 
     concerning whether, for purposes of this Act--
       ``(A) a child is an Indian child; or
       ``(B) a parent is an Indian; or
       ``(2)(A) makes any false, fictitious, or fraudulent 
     statement, omission, or representation; or
       ``(B) falsifies a written document knowing that the 
     document contains a false, fictitious, or fraudulent 
     statement or entry relating to a material fact described in 
     paragraph (1).
       ``(b) Criminal Sanctions.--The criminal sanctions for a 
     violation referred to in subsection (a) are as follows:
       ``(1) For an initial violation, a person shall be fined in 
     accordance with section 3571 of title 18, United States Code, 
     or imprisoned not more than 1 year, or both.
       ``(2) For any subsequent violation, a person shall be fined 
     in accordance with section 3571 of title 18, United States 
     Code, or imprisoned not more than 5 years, or both.''.
                                                                    ____


  Section-by-Section Analysis--Indian Child Welfare Act Amendments of 
                                  1996


                   section 1. short title; references

       Section 1 cites the short title of the bill as the ``Indian 
     Child Welfare Act Amendments of 1996'' 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.).


                   section 2. exclusive jurisdiction

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


           section 3. intervention in state court proceedings

       Section 3 makes 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.


          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.


                    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 provided 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.


                   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.


                      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 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.


                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 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.


                  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). 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.
                                                                    ____

                                                    July 16, 1996.
     Hon. John McCain,
     Chairman, Senate Indian Affairs Committee, Washington, DC
       Dear Chairman McCain: Thank you for your swift attention 
     and hard work on the issue of the Indian Child Welfare Act 
     (ICWA) as it relates to adoption.
       I have reviewed a draft of the legislation you plan to 
     introduce to amend the ICWA and, after careful consideration, 
     have decided that I can lend the bill my qualified support. 
     As you know, your legislation offers

[[Page S7905]]

     a much different approach to reform of the ICWA than what I 
     prefer and what was passed by the House, your changes being 
     procedural and mine substantive. I believe, however, the 
     procedural reforms will help to facilitate compliance with 
     the ICWA and prevent some of the adoption tragedies that have 
     occurred under the current Act.
       Further, I appreciate your willingness to address some of 
     my concerns by incorporating protections for adoptive parents 
     in cases where there is no disclosure or knowledge of a 
     child's Native American heritage. These provisions are 
     necessary in situations like that of the Rost family of 
     Columbus, Ohio. The Rosts were unaware of the Native American 
     ancestry of their twin adoptive daughters because that 
     information was withheld by the birth parents.
       While I believe the reforms in your bill are useful, I 
     still feel that additional reforms are necessary to address 
     the underlying and fundamental problems with the ICWA as it 
     relates to adoption. The definition and jurisdiction problems 
     involved in the application of the ICWA remain unsolved, as 
     it is still unclear to whom this Act should apply. More and 
     more frequently, the courts are deciding that application of 
     the ICWA based on race alone is unconstitutional. I believe 
     it would be desirable for your committee to address this 
     issue at some point, or the legitimate purpose of the ICWA--
     to preserve the Indian family and culture--may be lost with 
     the Act's eventual demise.
       However, at this point, I support your legislation, 
     recognizing that it has the support of Native Americans, 
     adoption attorneys, and the Rost family. In my view, this 
     legislation represents a step toward ICWA reform that will 
     provide stability and security to the adoption process and 
     more importantly decrease the likelihood of adoption 
     tragedies.
       Thank you for your consideration of my views and for your 
     hard work to develop a solution to some of the problems that 
     the ICWA poses as currently applied. I look forward to 
     continuing to work with you on this issue as we monitor the 
     implementation of the changes purposed by your legislation.
           Very truly yours,
                                                    Deborah Pryce,
                                               Member of Congress.

  Mr. INOUYE. Mr. President, the Indian Child Welfare Act was enacted 
by the Congress in 1978 to secure long overdue protection for Indian 
children. In enacting the Indian Child Welfare Act, the Congress was 
concerned not only with the removal of Indian children from their 
families, but also their removal from their Indian heritage, culture, 
and identity.
  For the past 18 years, the Indian Child Welfare Act has served as a 
ray of hope and promise to Indian people striving to protect their 
children and the security and integrity of their families and tribal 
communities.
  While there is much debate about whether or not amendments are needed 
to the Indian Child Welfare Act, I have great respect for the leaders 
of the tribal governments who have come together to address the 
concerns of others notwithstanding the fact that these amendments will 
affect their most precious resource--the children of the native people 
of America.
  I wish to take this opportunity to make it clear to my colleagues 
that the amendments contained in this bill are intended to and will 
apply to all child custody proceedings affecting Indian children and 
their families.
  Mr. GLENN. Mr. President, I am pleased to join Senator McCain as an 
original cosponsor of this legislation to amend the Indian Child 
Welfare Act [ICWA]. By clarifying and improving a number of provisions 
of ICWA, this legislation brings more stability and certainty to Indian 
child adoptions while preserving the underlying policies and objectives 
of ICWA. This bill embodies the consensus agreement reached when Indian 
tribes from around the Nation met in Tulsa, OK, to address questions 
regarding ICWA's application. Mr. President, I believe that the 
overriding goal of this agreement, which I support, is to serve the 
best interests of children.
  The bill being introduced today deals with several issues critical to 
the application of ICWA to child custody proceedings including notice 
to Indian tribes for voluntary adoptions, time lines for tribal 
intervention in voluntary cases, criminal sanctions to discourage 
fraudulent practices in Indian adoptions and a mandate that attorneys 
and adoption agencies must inform Indian parents under ICWA. I believe 
that the formal notice requirements to the potentially affected tribe 
as well as the time limits for tribal intervention after the tribe has 
been notified are significant improvements in providing needed 
certainty in placement proceedings.
  Mr. President, I am also pleased that this legislation contains 
provisions addressing my specific concern: the retroactive application 
of ICWA in child custody proceedings. ICWA currently allows biological 
parents to withdraw their consent to an adoption for up to 2 years 
until the adoption is finalized. With the proposed changes, the time 
that the biological parents may withdraw their consent under ICWA is 
substantially reduced. I believe that a shorter deadline provides 
greater certainty for the potential adoptive family, the Indian family, 
the tribe, and the extended family. This certainty is vital for the 
preservation of the interest of the child.
  Mr. President, my concern with this issue and my insistence on the 
need to address the problem of retroactive application of ICWA was a 
direct response to a situation with a family in Columbus, OH. The Rost 
family of Columbus received custody of twin baby girls in the State of 
California in November 1993, following the relinquishment of parental 
rights by both birth parents. The biological father did not disclose 
his native American heritage in response to a specific question on the 
relinquishment document. In February 1994, the birth father informed 
his mother of the pending adoption of the twins. Two months later, in 
April 1994, the birth father's mother enrolled herself, the birth 
father, and the twins with the Pomo Indian tribe in California. The 
adoption agency was then notified that the adoption could not be 
finalized without a determination of the applicability of ICWA.
  The Rost situation made me aware of the harmful impact that 
retroactive application of ICWA could have on children. While I would 
have preferred tighter restrictions to preclude other families enduring 
the hardships the Rosts have experienced, I appreciated the efforts of 
Senator McCain, other members of the Committee and the Indian tribes to 
address these concerns. I believe that the combination of measures 
contained in this bill will significantly lessen the possibility of 
future Rost cases. Taken together the imposition of criminal sanctions 
for attorneys and adoption agencies that knowingly violate ICWA, the 
imposition of formal notice requirements and the imposition of 
deadlines for tribal intervention, provide new protections in law for 
children and families involved in child custody proceedings.
  Mr. President, I have reviewed the Rost case to reiterate that my 
interest in reforming ICWA has been limited to the issue of retroactive 
application. I have no intention to weaken ICWA protection, to narrow 
the designation of individuals as members of an Indian tribe, or to 
change any tribes' ability to determine its membership or what 
constitutes that membership. Once a voluntary legal agreement has been 
entered into, I do not believe that it is in the best interest of the 
child for this proceeding to be disrupted because of the retroactive 
application of ICWA. To allow this to happen could have a harmful 
impact on the child. I know that my colleagues share my overriding 
concern in assuring the best interest of children.
  Mr. President, I look forward to continued efforts to reform ICWA in 
ways that protect the best interest of children. I appreciate the work 
of Senator McCain and others to accommodate my concerns in this 
legislation and am pleased to cosponsor the bill.

                          ____________________