[Congressional Record Volume 143, Number 32 (Thursday, March 13, 1997)]
[Extensions of Remarks]
[Pages E462-E463]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




              INDIAN CHILD WELFARE ACT AMENDMENTS OF 1997

                                 ______
                                 

                           HON. GEORGE MILLER

                             of california

                    in the house of representatives

                        Thursday, March 13, 1997

  Mr. MILLER of California. Mr. Speaker, today, I am cosponsoring the 
Indian Child Welfare Act Amendments of 1997, a timely bill that 
reflects a carefully crafted compromise between the interests of Indian 
tribes seeking to protect their culture and heritage and the interests 
of non-Indians seeking greater clarity and security in the 
implementation of the Indian Child Welfare Act of 1978.
  This bill is virtually the same bill that I cosponsored last year 
along with the chairman of the Resources Committee, Representative Don 
Young, and the bill is the direct result of several high-profile 
adoption cases involving the adoption of Indian children. These cases, 
involving lengthy disputes under the Indian Child Welfare Act, focused 
our attention on whether the act fairly, and to the greatest degree 
possible, took into account the best interests of the children, the 
parents, and the tribes.
  In the last Congress, early attempts to rectify these problems were 
misdirected and would have amended the Indian Child Welfare Act to 
severely limit its scope and the protections it affords Indian 
children, parents, and tribes. The first proposed amendments to the act 
were drafted without any input at all by Indian tribes or by members of 
the committee of jurisdiction, the Resources Committee. The amendments 
survived a close vote on the House floor, but failed to make it out of 
committee in the Senate.
  Recognizing the need for legislation, however, we immediately 
initiated discussions with Indian tribes to lay the foundation for 
compromise legislation. The tribes in turn prepared draft legislation 
that was then shared and negotiated with adoption professionals, 
including attorneys, who ultimately endorsed the new legislation. 
Proponents of the compromise legislation now include the American 
Academy of Adoption Attorneys and Jane Gorman, the attorney who 
represented the family in the Rost case.
  This bill is intended to strengthen the act, to protect the lives and 
future of Indian children first and foremost. This bill was crafted not 
only with the input of the tribes but also with the input of the 
attorney for the Rost family, whose well-publicized case was one of the 
adoption cases that sparked this debate. We understand that to a few 
parties on either side of the debate this bill may not seem perfect. 
Few compromises are. But what this bill does is truly important. This 
bill helps Indian children by providing allowing adoptions to move 
forward quickly and with greater certainty. This bill places 
limitations on when Indian tribes and families may intervene in the 
adoption process. Yet at the same time, this bill protects the 
fundamental rights of tribal sovereignty.

[[Page E463]]

  The point is that this bill places the interests of Indian children 
above all else, first by ensuring that they will have as equal a chance 
as any other children at having a loving family and a home and second, 
by protecting their interests in their own culture and heritage.
  For the benefit of those new to this debate, I would like to provide 
a short background of the events that led to the enactment of the 
original Indian Child Welfare Act and what the new amendments that I 
and Chairman Young are proposing would do.
  The Indian Child Welfare Act [ICWA] was enacted in 1978 in response 
to the widespread removal of Indian children from Indian families and 
placement with non-Indian families or institutions. Prior to ICWA, 
House hearings yielded information which demonstrated that between 1969 
and 1974, 25 to 35 percent of all Indian children had been separated 
from their families and placed in adoptive families, foster care, or 
institutions. The Resources Committee reported in 1978 that ``[t]he 
wholesale separation of Indian children from their families is perhaps 
the most tragic and destructive aspect of American Indian life today.''
  In 1978, Chief Calvin Isaac of the Mississippi band of Choctaw 
Indians testified at hearings before the House about the cause for the 
large removal of Indian children:

       One of the most serious failings of the present system is 
     that Indian children are removed from the custody of their 
     natural parents by nontribal government authorities who have 
     no basis for intelligently evaluating the cultural and social 
     premises underlying Indian home life and childrearing. Many 
     of the individuals who decide the fate of our children are at 
     best ignorant of our cultural values, and at worst 
     contemptful of the Indian way and convinced that removal, 
     usually to a non-Indian household or institution, can only 
     benefit an Indian child.

  Removal of Indian children from Indian families led not only to 
social harm to the Indian parents and adopted children, but also to 
harm to the tribes who were essentially losing their own members. Chief 
Isaac added that--

       Culturally, the chances of Indian survival are 
     significantly reduced if our children, the only real means 
     for the transmission of the tribal heritage, are to be raised 
     in non-Indian homes and denied exposure to the ways of their 
     People. Furthermore, these practices seriously undercut the 
     tribes' ability to continue as self-government communities.

  Congress enacted ICWA to address these concerns, declaring that ``it 
is the policy of this Nation to protect the best interests of Indian 
children and to promote the stability and security of Indian tribes and 
families by the establishment of minimum Federal standards for the 
removal of Indian children from their families * * *.'' 25 U.S.C. 1902. 
Furthermore, Congress ``has assumed the responsibility for the 
protection and preservation of Indian tribes and their resources'' and 
``that there is no resource that is more vital to the continued 
existence and integrity of Indian tribes than their children.'' 25 
U.S.C. 1901 (2), (3).
  It is worth pointing out that Congress enacted ICWA in recognition of 
two equally important interests--that of the Indian child, and that of 
the Indian tribe in the child. In a landmark ruling, the Supreme Court 
in the Holyfield case highlighted the latter interest, saying:

       The protection of this tribal interest is at the core of 
     ICWA, which recognizes that the tribe has an interest in the 
     child which is distinct but on a parity with the interest of 
     the parents.

  One result of the passage ICWA has been the development and 
implementation of tribal juvenile codes, juvenile courts tribal 
standards, and child welfare services. Today, almost every Indian tribe 
provides child welfare services to their own children.
  Recent studies indicate that ICWA has had a positive effect in 
redressing the wrongs caused by the removal of Indian children from 
their families. In 1978, Congress found evidence that state courts and 
child welfare workers placed over ninety percent of adopted American 
Indian children in non-Indian homes. Sixteen years later, studies 
indicate that less than 60 percent are adopted by non-Indians. Note, 
When Judicial Flexibility Becomes Abuse of Discretion: Eliminating the 
Good Cause Exception in Indian Child Welfare Act Adoptive Placements, 
79 Minn. L. Rev. 1167, 1167-68 (1995). A 1987 report revealed an 
overall reduction in foster care placement in the early 1980's after 
enactment of the Act. See Note, The Best Interests of Indian Children 
in Minnesota, 17 American Indian L. Rev. 237, 246-47 (1992). A 1988 
report indicated that ICWA had motivated courts and agencies to place 
greater numbers of Indian children into Indian homes. Id.
  In other words, ICWA is starting to work well. Indian children have 
been placed in loving homes and the removal of children from their 
culture has diminished. Unlike other minority cases, there is no 
shortage of families willing to adopt Indian children. Less than one-
half of one-tenth of all Indian adoption cases since passage of ICWA 
have caused problems.
  Although ICWA gives tribes the right to play a role in all cases 
involving their own children, unfortunately, the law does not always 
require that parents, their attorneys, or adoption agencies notify the 
courts or the tribes when such a case is pending. The problem is that 
some in the adoption profession fear that by notifying the courts that 
an Indian child is involved in an adoption proceeding, they either will 
bog down the proceedings or scare off potential adoptive parents. 
Often, the tribes are given no notification while parties to the 
adoption are encouraged to conceal the child's Indian identity, causing 
the number of cases where the intent of the law has been skirted to 
multiply rapidly. The consequences of this noncompliance can lead to 
emotionally troubling results for everyone involved.
  The bill that I am cosponsoring corrects these problems.
  Here's exactly what the bill does. The Indian Child Welfare Act 
Amendments of 1997 would provide Indian tribes with notice of voluntary 
adoption proceedings. Currently, the Act requires that tribes receive 
notice of involuntary proceedings but not voluntary proceedings. The 
bill would also limit when and how Indian tribes and families can 
intervene in Indian adoption cases. Tribes would only be permitted to 
intervene, first, within 30 days of notification of a termination of 
parental rights proceeding, second, within 90 days of notification of 
an adoptive placement, or third, within 30 days of notification of an 
adoptive proceeding. A tribal waiver of its right to intervene will be 
considered final. Furthermore, a tribe seeking to intervene must 
provide a certification that the Indian child is, or is eligible to 
become, a member of the tribe. The bill would also limit the period of 
time within which Indian birth parents can withdraw their consent to 
adoption or termination of parental rights. A birth parent can only 
withdraw consent to adoption up to 30 days after commencement of 
adoption proceedings, up to 6 months after notification to the tribe if 
no proceedings have begun, or up to the entry of a final adoption 
order, whichever comes first. The bill also encourages tribes and 
adoptive families to enter into voluntary open adoptions and visitation 
arrangements and authorizes such arrangements in States that prohibit 
such arrangements. Finally, the bill applies penalties for fraud and 
misrepresentation by applying criminal sanctions to persons, other than 
birth parents, who attempt to hide the fact that an Indian child is the 
subject of a child custody proceeding or that one of the child's 
parents is an Indian.
  I believe that these provisions are fair and will encourage, not 
prevent, the placement of Indians in caring homes and families.
  Some have tried to blame the few but well-publicized failures on the 
Indians, some have concluded that rolling back the ICWA is necessary to 
prevent future miscarriages of justice, and some have even asserted 
that they are doing it with the best interests of the Indian at heart. 
But Indian people have heard claims like these all too many times 
before. We understand how hard it must be for them to live with this 
rhetoric, especially when the stakes are so high. We must all bear in 
mind that from an Indian perspective, it is the very future of their 
people and their culture that is at stake.
  It is time for non-Indians to understand that Indian families are not 
necessarily opposed to other people raising their children and giving 
them loving homes. But it is even more critical that they understand 
that Indian people must have a voice in these adoptions and that their 
voices be heard for the good of everyone.
  Although we in Congress are often the first to prescribe what is best 
for American Indians, we usually fail in our attempts to deliver on our 
promises, largely due to our unwillingness to listen to the very people 
we're trying to help. I have listened to the tribes, and to the 
families this time and I believe that the Indian Child Welfare Act 
Amendments of 1997 is a fair and balanced approach that can bring 
peoples and cultures together, not divide them apart.

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