[Congressional Record Volume 142, Number 135 (Thursday, September 26, 1996)]
[Senate]
[Pages S11455-S11460]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              INDIAN CHILD WELFARE ACT AMENDMENTS OF 1996

  Mr. LOTT. Mr. President, I ask unanimous consent that the Senate 
proceed to the immediate consideration of calendar No. 541, S. 1962.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       A bill (S. 1962) to amend the Indian Child Welfare Act of 
     1978, and for other purposes.

  The PRESIDING OFFICER. Is there objection to the immediate 
consideration of the bill?
  There being no objection, the Senate proceeded to consider the bill.


                           Amendment No. 5405

                (Purpose: To make technical corrections)

  Mr. LOTT. Mr. President, I understand Senator McCain has a technical 
amendment at the desk, and I ask for its consideration.
  The PRESIDING OFFICER. The clerk will report.
  The legislative clerk read as follows:

       The Senator from Mississippi [Mr. Lott], for Mr. McCain, 
     proposes an amendment numbered 5405.

  The amendment is as follows:
       On page 13, line 18, insert ``if in the best interests of 
     an Indian child,'' after ``approve,''.
       On page 14, lines 15 and 16, strike the dash and all that 
     follows through the paragraph designation and adjust the 
     margin accordingly.
       On page 14, line 16, insert a dash after ``willfully''.
       On page 14, line 16, insert `` `(1)'' before ``falsifies'' 
     and adjust the margin accordingly.

  Mr. LOTT. Mr. President, I ask unanimous consent that the amendment 
be agreed to.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment (No. 5405) was agreed to.
  Mr. McCAIN. Mr. President, I wish to thank my colleagues for moving 
quickly to consideration of S. 1962, a bill to make certain compromise 
amendments to the Indian Child Welfare Act of 1978 [ICWA]. I urge its 
immediate adoption.
  S. 1962 represents broad consensus legislation that has been crafted 
with great care to resolve many of the differences between Indian 
tribes and adoption advocates.
  Let me say, first, that the issue of Indian child welfare stirs the 
deepest of emotions. Until nearly eighteen years ago, 
disproportionately high numbers of Indian children were virtually 
kidnapped from their families and tribal communities and placed in 
foster and adoptive care. Although sometimes these efforts were 
motivated by good intentions, the results were many times tragic. 
Generations of Indian children were denied their rich cultural and 
political heritage as Native Americans. The well-documented abuses from 
that dark era are horrifying. One study concluded that between 25 and 
35 percent of all Indian children were torn from their birth families 
and tribes.
  In 1978, Congressman Mo Udall and others in Congress responded to 
this crisis by enacting the Indian Child Welfare Act [ICWA] to prevent 
further abuses of Indian children. Under ICWA, adoptions of Indian 
children could still go forward, but the best interests of the Indian 
children had the additional protection of the involvement of their own 
tribe.
  In recent years, a new tragedy has emerged as ICWA has been 
implemented, this one borne by non-Indian adoptive families who in a 
handful of high-profile cases have seen their adoptions of Indian 
children disrupted months and years after they have received the child.
  In some of these controversial cases, people facilitating the 
adoptions have been accused of knowingly and willfully lying to the 
courts, the adoptive families, and the tribes, hiding the fact that 
these children were Indians covered by ICWA procedures. In other cases, 
some Indian tribes have been accused of retroactively conveying 
membership on a birth parent who wanted to revoke his or her consent 
long after the adoption placement was voluntarily established.
  Because Indian tribes typically have not been made aware of an 
adoption, in most of the controversial cases, until very late in the 
placement, the tribes have been faced with a tragic choice--either 
intervene late in the proceeding and disrupt the certainty sought by 
the adoptive family and child, or stay out of the case and lose any 
chance to be involved in the life of the Indian child. The result has 
been great uncertainty and heartache on all sides. No matter the 
outcome in each of these cases, the Indian children have been the 
losers.

  The measure we have under consideration today will amend ICWA to 
dramatically improve this situation. Mr. President, most of the people 
who deal on a daily basis with ICWA believe S. 1962 will make ICWA work 
much better for Indian children and for adoptive families.
  S. 1962 will dramatically increase the opportunities for greater 
certainty, speed and stability in adoptions of Indian children. S. 1962 
reflects the agreement of attorneys representing adoptive families and 
representatives of the Indian tribes. Enactment of the provisions they 
can agree upon will dramatically improve ICWA and clearly be in the 
best interests of the Indian children involved.
  S. 1962 will change ICWA so that it better serves the best interests 
of Indian children without trampling on tribal sovereignty and without 
eroding fundamental principles of Federal-Indian law. The legislation 
will 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 to intervene and the right of Indian birth 
parents to revoke their consent to an adoptive placement.
  Perhaps of most interest to the Members of the Senate is the fact 
that the provisions of S. 1962 will encourage early identification of 
the cases involving controversy, and promote settlement by making 
visitation agreements enforceable. One example of such a case is that 
of a non-Indian Ohio couple, Jim and Colette Rost, who have been trying 
to adopt twin daughters--now nearly three years old--placed with them 
at birth by an adoption attorney who failed to disclose that the 
children were Indians. The Rost's current attorney now supports quick 
enactment by the Congress of the compromise provisions that comprise S. 
1962 because they will provide authority where none exists to enforce a 
visitation agreement that will very likely settle the Rost and other 
similar cases.
  I am very pleased with the provisions of this bill for another 
reason. I have long given active support to legislative efforts that 
encourage and facilitate adoptions in all instances. It is my belief 
that it is our solemn responsibility to work to increase the 
opportunities for all children to enjoy stable and loving family 
relationships as quickly as possible. At a minimum, this means removing 
every unreasonable obstacle to adoption. Equally important for me is 
the priority I place on encouraging adoption as a positive alternative 
to

[[Page S11456]]

abortion. Because of these considerations, I was an early and 
strong supporter of the 1996 amendments to the Multi-Ethnic Placement 
Act, facilitating adoptions, we recently sent to the President for 
signature into law. Likewise, I am deeply committed to enactment of the 
consensus-based provisions of S. 1962 because they will encourage and 
facilitate adoptions of Indian children, and, arguably, discourage 
abortions, by providing greater certainty, speed and stability to 
Indian adoptions than that provided under existing law.

  Let me take a moment to clarify a related matter that has drawn some 
attention in recent days having to do with what is authorized, and what 
is not authorized, by subsection (h) of Section 8 dealing with the 
enforceability of visitation agreements after an adoption decree is 
final. First, I must stress the fact that subsection (h) addresses only 
those situations where all those involved in the voluntary adoption of 
an Indian child have voluntarily and mutually entered into an agreement 
on visitation. The parties to such an agreement may include the birth 
family, the adoptive family, and the child's Indian tribe. Subsection 
(h) could not, and should not, be construed to impose any right of 
visitation or contact not agreed to by those individuals involved in 
each case. The provision simply says that, if and only if those parties 
involved have agreed to certain terms for visitation or contact to take 
place after the adoption is final, then the agreement reached by the 
parties is enforceable against those parties in any court of law. If 
those involved have not agreed to visitation, then there is no 
agreement to enforce under the terms of subsection (h). I wish to 
emphasize that this provision does not create separate authority for 
any court or any party to impose upon another party a so-called open 
adoption; this would remain a matter for State law. The waiver of any 
individual privacy rights are exclusively within the hands of those 
individuals entering into, or refusing to enter into, such a voluntary 
agreement. Subsection (h) simply says that when the adoptive family and 
the others involved in a voluntary adoption proceeding under the Indian 
Child Welfare Act choose, of their own accord, to agree to certain 
visitation or contact privileges that can occur after the adoption is 
final, their agreement can be enforced by the courts. This authority is 
no different than the enforcement powers commonly exercised by courts 
over commercial agreements in which the parties demonstrate their good 
faith by agreeing to submit the terms of their agreement to judicial 
enforcement. I have asked as part of the Senate's consideration of this 
bill, that a minor amendment be made to subsection (h) to clarify what 
has been our intention all along, that a judge must consider what are 
the best interests of the child when the judge exercises his or her 
discretion as to whether or not to include provisions to enforce a 
voluntary visitation agreement in a final decree of adoption.
  In addition, a concern has been raised about a matter that S. 1962 
does not address in any way--that the adoptive placement preferences in 
the underlying ICWA law would lead an expectant mother seeking privacy 
to prefer abortion over adoption. Any close examination of the 1978 law 
will reveal that this concern about adoptive placement preferences is 
without reasonable foundation. Under title 25, U.S.C. section 1915(c), 
the 1978 act actually directs a State court judge to give weight to the 
placement choice of a birth parent who evidences a desire for privacy. 
The 1978 law declares that, as a matter of Federal-Indian child welfare 
policy, the best interests of Indian children are to be protected. 
Under title 25, U.S.C. section 1915 (a), a State court judge must give 
a ``preference'' to an Indian adoptive family in his or her adoptive 
placement decisions involving an Indian child, ``in the absence of good 
cause to the contrary.'' The presumption is that a placement with the 
child's Indian or non-Indian extended family, or with an Indian family, 
is in the best interest of the Indian child. These preferences are not 
mandatory quotas. They must be considered, but the State court judge 
has the discretion to prefer another placement if there is good cause. 
State court judges in many cases have found good cause for placing 
Indian children with non-Indian adoptive families for a variety of 
reasons, including the wishes of a birth parent, or the judge's 
determination that a particular non-Indian placement would be in the 
best interests of the child under the act given the particular facts of 
the case or the available placement options. Let me be clear--the bill 
before us today, S. 1962, does not in any way alter the existing law on 
adoptive placement preferences set forth in 25 U.S.C. 1915. No 
consensus could be reached on any changes to section 1915. However, 
because the preference provisions under section 1915 have been the 
subject of some misunderstandings during consideration of S. 1962, I 
thought it would be helpful at this juncture to recite what section 
1915 does and does not do in order to remove any additional concerns 
that might arise in the future.

  Finally, there is one other technical and conforming amendment that 
we have asked be made to the bill as reported, which would make clear 
that the sanctions mirror those found in title 18, section 1001, 
touching only upon willful and knowing acts or omissions. Through an 
oversight in drafting, the reported bill was not completely clear on 
this issue, and the technical change should resolve the questions that 
have been raised.
  S. 1962 places new, strict time restrictions on the right of an 
Indian tribe to intervene in a State court adoption proceeding 
involving an Indian child. Under current law, a tribe can do so at any 
point up to entry of the final decree of adoption. The bill allows 
adoptive parents to limit this period to as little as 30 days after the 
tribe receives notice of a voluntary adoption proceeding. The bill 
makes many other changes to ICWA. With proper notice, an Indian tribe's 
failure to act early in the placement proceedings is final. A tribal 
waiver of its right is binding. An Indian tribe seeking to intervene 
must accompany its motion with a certification that the child is, or is 
eligible to be, a member of the tribe and document it. Once a tribe 
notifies a party or court that a child is not an Indian, the tribe 
cannot later change its mind. Unless we pass S. 1962, none of these 
restrictions will be law.
  The bill places new, strict time restrictions on the right of birth 
parents to revoke their consent to an adoptive placement. Under current 
law, a birth parent can revoke consent at any time up to entry of the 
final decree of adoption. The bill limits revocations to the 180-day 
period following notice.
  The bill requires that early notice be given to a tribe if a child is 
reasonably known to be an Indian. Attorneys who represent adoptive 
families tell me they welcome the chance to use this notice requirement 
so they can identify the relatively few cases involving controversy 
either before or within the first weeks of an adoptive placement. This 
would provide far more speed, stability and certainty than now exists 
under ICWA.
  The bill promotes settlement of contested cases by providing judges 
with the authority, in their discretion, to enforce a settlement 
agreement voluntarily entered into by those involved in a case that 
would permit visitation or other agreed-upon contact after the adoption 
decree is final. Attorneys who represent adoptive families say this 
provision will encourage early settlements that do not disrupt 
placements and, because it offers them an opportunity to obtain 
enforceable agreements for future contact, will encourage the many 
pregnant women who seek such agreements to choose adoption over 
abortion.
  Finally, the bill applies standard criminal penalties to knowing and 
willful efforts to lie, by persons other than birth parents, in a court 
proceeding subject to ICWA, about whether a child or a parent is an 
Indian. Attorneys representing adoptive families say these sanctions 
will help deter fraudulent conduct which, under current law, risks an 
eventual disruption of adoptive placements long after they have begun.
  All of these changes are improvements to ICWA. They will make a 
pregnant woman's choice to place a child for adoption more attractive 
than it now is under current law. In turn, this should lead to fewer 
abortions.
  Mr. President, I believe adoptive families simply seek certainty, 
speed, and stability throughout the adoption process. They do not want 
surprises

[[Page S11457]]

that threaten to take away from them a child for whom they have loved 
and cared for a substantial period of time. At the same time, Indian 
tribes simply seek early and substantive notice of proposed adoptions, 
the ability to become involved in the adoption process, and the 
continued protections of tribal sovereignty. They do not want to learn, 
many months and years after the fact, that their young tribal members 
have been placed for adoption outside of the Indian community. The 
landmark, compromise bill we have under consideration today will meet 
all of these concerns.
  I am very pleased that what seemed a few months ago to be intractable 
problems with ICWA have in large part been resolved by the good faith 
efforts of representatives of the adoption attorneys and the Indian 
tribes. As with all compromises, each side would have preferred 
language that is better for them. But on behalf of the Indian children 
and their birth and adoptive parents, I want to extend my personal 
thanks to persons on all sides of this debate who have led the way to a 
compromise in which everyone, but most importantly, the Indian 
children, are the winners.

  The national board of governors of the American Academy of Adoption 
Attorneys has endorsed the bill, as has the Academy of California 
Adoption Attorneys, the Child Welfare League of America, Catholic 
Charities USA, the U.S. Bureau of Catholic Indian Missions, the 
National Congress of American Indians, the National Indian Child 
Welfare Association, and virtually every Indian tribal government. Let 
me just stress that these all are organizations who have years of 
experience working with thousands upon thousands of Indian adoption 
cases. Catholic Charities USA, for example, is a pro-life organization 
that has 1,400 local agencies and institutions which last year provided 
adoption services for more than 42,000 people. Of perhaps equal note is 
the fact that the current attorney for the Rosts, an Ohio family trying 
to adopt twin Indian daughters who are members of a California tribe, 
helped draft the bill and has lent it strong support because its 
provisions would enable a final settlement of the Rost case controversy 
and settle or prevent many other cases like that involving the Rosts.
  Mr. President, I ask unanimous consent that a copy of letters from 
the American Academy of Adoption Attorneys, the Child Welfare League of 
America, Catholic Charities USA, the U.S. Bureau of Catholic Indian 
Missions, and the Association on American Indian Affairs be reprinted 
in the Congressional Record at the conclusion of these remarks.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  (See exhibit 1.)
  I am glad to see that Congresswoman Deborah Pryce and Congressmen Don 
Young, George Miller, and Bill Richardson have indicated their 
agreement with the approach taken in S. 1962. And S. 1962 has the 
strong support of the administration, including both the Department of 
the Interior and the Department of Justice. Because it is a delicately 
balanced compromise, I intend to urge our colleagues in the House to 
promptly adopt this bill without change so that it can be sent on to 
the President for signature into law as quickly as possible.
  The compromise that is embodied in S. 1962 is the best that can be 
obtained. The alternative is to make no change to ICWA and lose this 
chance to improve ICWA for the sake of the best interests of Indian 
children. Mr. President, it is with these children on my mind and in my 
heart that I ask the Senate to enact S. 1962.

                               Exhibit 1

                                               American Academy of


                                           Adoption Attorneys,

                                  Washington, DC, August 21, 1996.
     U.S. Senate, Committee on Indian Affairs, Washington, DC.
       Dear Senator McCain and the Honorable Members of the Senate 
     Committee on Indian Affairs: This letter is to reaffirm our 
     support of S. 1962 notwithstanding the recent letter of 
     Douglas Johnson (dated August 1, 1996) to Senator Lott asking 
     that the bill be halted. Mr. Johnson does not explain in his 
     letter how the bill might impact abortion, but instead quotes 
     National Council for Adoption for the proposition that ``it 
     would be the end of voluntary adoptions of children with any 
     hint of Indian ancestry.'' Presumably, NCFA bases this 
     assertion on the theory that agencies and attorneys would be 
     so fearful of the criminal provisions of the amendments that 
     they would refuse to work with birthparents of Indian 
     ancestry. NCFA believes that the resultant projected 
     inability of such birthparents to find professionals willing 
     to help them place their children for adoption, would lead to 
     more abortions. Though this reasoning is not spelled out it 
     is the only connection to abortion we can possibly infer.
       Our continued support of the bill is not based on a desire 
     to see more abortions. Rather, we seriously question the 
     basic premise of Mr. Johnson's letter that S. 1962 would have 
     any impact on abortion.
       The bill is intended to encourage the adoption of children 
     of Indian ancestry by making such adoption safer for adoptive 
     parents. The one or two percent of the children of Indian 
     ancestry who are ``Indian children,'' as defined by the 
     I.C.W.A., would be identified early in the process (likewise, 
     the remaining 90% would be promptly identified as not subject 
     to the I.C.W.A.).
       Within a short time (compared to the present situation) 
     tribes would be required to give adoptive parents notice of a 
     potential problem and their failure to do so would eliminate 
     the possibility of a problem. Because the bill would make 
     adoption safer for adoptive parents, we support it.
       The criminal sanctions contained in the bill deal with 
     fraudulent efforts to avoid the law. Reputable agencies and 
     attorneys do not commit fraud and have nothing to fear. The 
     fact that adoption attorneys and agencies willing to comply 
     with the I.C.W.A. support this bill, refutes the entire 
     thrust of NRLC and NCFA's position.
       Adoption attorneys and agencies should be more willing to 
     work with birthparents of Indian ancestry if S. 1962 passes, 
     than under present law. Pregnant women exploring adoption 
     will find that more families will be desirous of adopting 
     their children than they are today, and thus, they will have 
     more alternatives to abortion.
       Please do what you can to make S. 1962 the law immediately 
     and count on our continued support.
           Yours truly,
                                            Samuel C. Totaro, Jr.,
     President.
                                                                    ____

                                           Child Welfare League of


                                                America, Inc.,

                               Washington, DC, September 10, 1996.
     Hon. John McCain,
     Chairman, Committee on Indian Affairs, U.S. Senate, Hart 
         Senate Office Building, Washington, DC.
       Dear Senator McCain: I am writing in support of the 
     amendments to the Indian Child Welfare Act outlined in both 
     S. 1962 and H.R. 3828 as an alternative to earlier amendments 
     outlined in H.R. 3286.
       As you know the Child Welfare League of America is a 
     national organization that is committed to preserving, 
     protecting, and promoting the well-being of children and 
     families. As such we believe that the principles outlined in 
     the Indian Child Welfare Act provide an appropriate and 
     necessary framework for addressing the permanency and child 
     welfare needs of Indian children. We likewise believe that 
     the ICWA amendments proposed in S. 1962 and H.R. 3828 support 
     reasonable and effective improvements that will strengthen 
     the implementation of ICWA in voluntary adoptions involving 
     Indian children. First, they will help to strengthen the 
     responsibility of agencies and individuals to conduct timely 
     and time-limited notification to tribes and family members 
     thereby promoting speedy movement toward adoption. Second, we 
     believe that the amendments will discourage the dissolution 
     of existing adoptions and provide greater security for Indian 
     children and for their adoptive families.
       We are encouraged that the process for developing these 
     amendments has involved representatives from Indian Country 
     and private adoption attorneys and that the proposed changes 
     balance the needs of prospective adoptive parents and tribes 
     while maintaining a focus on the permanency needs of Indian 
     children. CWLA is optimistic that this bill will promote 
     successful adoptions for Indian children who are in need of 
     permanent families.
           Sincerely,
                                                  David Liederman,
     Executive Director.
                                                                    ____



                                       Catholic Charities USA,

                               Alexandria, VA, September 24, 1996.
     Hon. John McCain,
     Chair, Committee on Indian Affairs, Hart Senate Office 
         Building, Washington, DC.
       Dear Chairman McCain: On behalf of Catholic Charities USA's 
     1,400 local agencies and institutions, I am writing to 
     commend you for your efforts to reform problems in the 
     current system of adoption of Native American children. Last 
     year, our agencies provided adoption services for 42,134 
     people.
       After consultation with our agencies in ``Indian Country,'' 
     we have concluded that your bill to amend the Indian Child 
     Welfare Act of 1978 (S. 1962) would improve the current rules 
     for adoption of Native American children.
       As you know, Catholic Charities USA's member agencies have 
     a strong and unwavering commitment to the sanctity of every 
     human life. Catholic Charities USA would not support any bill 
     that we believe has potential for increasing abortions. We 
     are convinced that your bill will make adoption a more 
     attractive option than abortion to the women and families 
     affected.

[[Page S11458]]

       Please let us know how we can be helpful in assuring 
     passage of your bill in this Congress.
           Sincerely,
                                             Rev. Fred Kammer, SJ,
     President.
                                                                    ____

                                                Bureau of Catholic


                                              Indian Missions,

                                Washington, DC, September 4, 1996.
     Senator Trent Lott,
     Majority Leader, U.S. Senate, U.S. Congress, Washington, DC.
       Dear Senator Lott: I am writing in support of the 
     amendment, S. 1962, to keep in effect the basic provisions of 
     the Indian Child Welfare Act of 1978. Those who are opposed 
     to that act for fear that Indian women will be driven to seek 
     abortions, I believe, are without grounds. It was not the 
     attitude of Indians to seek abortions. Indians welcomed 
     infants. As tribal people they see infants as the promise of 
     the future.
       As this legislation stands, it provides the efficiency, 
     speed and certainly of adoption. Delays and prolonging of the 
     process are excluded now that the time limits are reduced. 
     The birth-mother does not have the uncertainty that the old 
     law mandated. It is efficient and speedy. For mothers, 
     unfortunately forced by circumstances to give up their 
     children for adoption, this present bill provides the surest 
     means for adoption.
       Thank you!
           Sincerely yours,
                                          Theodore F. Zuern, S.J.,
     Legislative Director.
                                                                    ____


               [From the New York Times, August 17, 1996]

                 Indian Adoptions Aren't Blocked by Law

       To the Editor: Assertions by Representative Pete Geren that 
     the Indian Child Welfare Act applies to anyone with the 
     remotest ancestry and supplies tribes with veto power over 
     off-reservations adoptions are wrong (letter, July 26).
       Ancestry alone does not trigger the provisions of the law. 
     The law applies only when a child is a member of an Indian 
     tribe or is the child of a member and eligible for 
     membership. The notion that a person whose family has had no 
     contact with an Indian tribe for generations would suddenly 
     become subject to the law is not reality.
       Even if a child is covered by the law, a tribe cannot veto 
     a placement sought by a birth parent. If the law applies, the 
     tribe may intervene in the state court proceeding. It may 
     seek to transfer the case to tribal court, but an objection 
     by either birth parent would prevent that.
       Even where a parent does not object, a state court may deny 
     transfer for good cause. If the case remains in state court, 
     the tribe may seek to apply the placement preferences in the 
     law (extended family, tribal members and other Indian 
     families, in that order), but the state court may place a 
     child outside the preferences if it finds good cause to do 
     so.
       The Indian Child Welfare Act was enacted in response to a 
     tragedy. Studies revealed that 25 percent to 30 percent of 
     Indian children had been separated from their families and 
     communities, usually without just cause, and placed mostly 
     with non-Indian families. The act formalized the authority of 
     tribes in the child welfare process in order to protect 
     Indian children and provided procedural protections to 
     families to prevent arbitrary removals and placements of 
     Indian children.
       The law is based upon a conclusion, supported by clinical 
     evidence, that it is usually in an Indian child's best 
     interest to retain a connection with his or her tribe and 
     heritage.

  Mr. GLENN. Mr. President, I am pleased to support passage 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.
  This bill 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 hardship the Rosts have experienced, I appreciated the effort 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 protection 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. 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, and I am pleased that the bill we are 
passing today reflects that concern.
  Mr. LOTT. Mr. President, I ask unanimous consent that the bill be 
considered read a third time and passed, as amended, the motion to 
reconsider be laid upon the table and that any statements relating to 
the bill be placed at the appropriate place in the Record.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The bill (S. 1962), as amended, was passed 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.''.

[[Page S11459]]

     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--
       ``(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) 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--
       ``(A) in a manner consistent with paragraph (3), the child 
     shall be returned immediately to the parent who revokes 
     consent; and
       ``(B) 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

[[Page S11460]]

       ``(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, if in the best interests of an 
     Indian child, 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 knowingly and willfully--
       ``(1) 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.''.

                          ____________________