[Congressional Record Volume 143, Number 43 (Monday, April 14, 1997)]
[Senate]
[Pages S3120-S3123]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCAIN (for himself, Mr. Campbell, Mr. Domenici, and Mr. 
        Dorgan):
  S. 569. 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 amendments of 1997

 Mr. McCAIN. Mr. President, I am introducing today a bill to 
amend the Indian Child Welfare Act [ICWA] of 1978 to make the process 
that applies to voluntary Indian child custody and adoption proceedings 
more fair, consistent, and certain. The provisions of this legislation 
would further advance the best interests of Indian children without 
eroding tribal sovereignty and the fundamental principles of Federal-
Indian law.
  I want to thank my principal cosponsors, Senators Campbell, Domenici, 
and Dorgan, for their continued support of this much-needed 
legislation. Let me point out also that this bill is identical to 
legislation which passed the Senate by unanimous consent on September 
26, 1996. It is the result of nearly 2 years of discussions and debates 
among representatives of the adoption community, Indian tribal 
governments, and the Congress to address some of the problems with the 
implementation of ICWA since its enactment in 1978.
  Mr. President, ICWA was originally enacted to provide for procedural 
and substantive protection for Indian children and families and to 
recognize and formalize a substantial role for Indian tribes in cases 
involving involuntary and voluntary child custody proceedings, whether 
on or off the Indian reservation. Although implementation of ICWA has 
been less than perfect, in the vast majority of cases ICWA has 
effectively provided such protection. It has compelled greater efforts 
and more painstaking analysis by State and private adoption agencies 
and State courts before removing Indian children from their homes and 
communities. It has required recognition by all parties that an Indian 
child has a vital interest in retaining a connection with his or her 
Indian tribe.
  Nonetheless, particularly in the voluntary adoption context, there 
have been occasional, high-profile cases which have resulted in 
lengthy, protracted litigation causing great anguish for the children, 
their adoptive families, their birth families, and their Indian tribes. 
This bill takes a measured and limited approach, crafted by 
representatives of tribal governments and the adoption community, to 
address the problems of implementing ICWA in voluntary adoption 
proceedings.
  This legislation would achieve greater certainty and speed in the 
adoption process for Indian children by providing new guarantees of 
early and effective notice in all cases involving Indian children. The 
bill also establishes new, strict time restrictions 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. 
Finally, the bill includes a provision which would encourage early 
identification of the relatively few cases involving controversy and 
promote the settlement of cases by making visitation agreements 
enforceable.
  For a full analysis of the provisions of the bill, I respectfully 
refer my colleagues to the report accompanying the legislation as it 
was reported to the Senate on July 26, 1996, which is Senate Report No. 
104-335.
  Mr. President, nothing is more sacred and more important to our 
future than our children. The issues surrounding Indian child welfare 
stir deep emotions. I am thankful that, in formulating the compromise 
that led to the introduction of this bill in the last Congress, the 
representatives of both the adoption community and tribal governments 
were able to put aside their individual desires and focus on the best 
interests of Indian children.
  Mr. President, last year, proposals were put forth in the House which 
would have gone too far in restricting the application of ICWA. Those 
proposals, which were considered by the Senate as title III of H.R. 
3286, the Adoption Promotion and Stability Act of 1996, were deleted by 
the Indian Affairs Committee because of our concern about the breadth 
of the language and the fundamental changes the provisions would have 
made to the government-to-government relationship between the United 
States and Indian tribes.
  I believe this bill represents an appropriate and fair-minded 
compromise proposal which would enhance the best interests of Indian 
children by guaranteeing speed, certainty, and stability in the 
adoption process. At the same time, the provisions of this bill 
preserve fundamental principles of tribal government by recognizing the 
appropriate role of tribal governments in the lives of Indian children.
  Mr. President, this bill has been thoroughly analyzed and debated in 
the Senate, as well as in the adoption community and Indian tribal 
governments. I believe it is time for the Congress to act in the best 
interests of Indian children by approving these amendments to the 
voluntary adoption procedures in the 1978 ICWA.
  Mr. President, I ask unanimous consent that the full text of the 
legislation I am introducing today be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                 S. 569

       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 1997''.
       (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:

[[Page S3121]]

       ``(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--
       ``(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).

[[Page S3122]]

       ``(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, if in the best interests of an 
     Indian child, as part of an adoption decree of that 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.''.

  Mr. CAMPBELL. Mr. President, as Chairman of the Committee on Indian 
Affairs, today I join Senator McCain in introducing the Indian Child 
Welfare Act Amendments of 1997. This legislation will amend the 1978 
Indian Child Welfare Act [ICWA] and will serve the best interests of 
Indian children across the United States in the process. The ICWA is a 
procedural statute and this legislation clarifies and strengthens the 
procedures contained in it. The bill strengthens the statute by 
providing certainty, stability, and finality to adoptions and other 
placements involving Indian children.
  In the 104th Congress, this legislation received the support of 
parties affected by and knowledgeable of ICWA-related adoptions: tribal 
organizations, and non-Indian adoption attorneys. The bill I am 
cosponsoring today addresses the major concerns of these parties in a 
way that strengthens the existing ICWA, and provides certainty and 
finality to non-Indian adoptive families. Most important, this bill 
serves the best interests of Indian children and enhances the integrity 
of Indian families.
  Adoption and child custody proceedings are delicate and emotional 
matters for all involved: for the Indian child; for the birth parents; 
for the Indian tribe; and for the adoptive parents. My own experience 
as a youth is helpful in providing a context for ICWA and why it was 
enacted. I grew up in California, many miles from the Northern Cheyenne 
Reservation in Montana where my tribe and relatives lived. I am lucky 
in that even though I was not raised on the reservation, I still cling 
to my tribal identity, my culture, and the spiritual traditions that 
make me a member of the Northern Cheyenne Tribe. Many Indian youth are 
not so lucky, and once removed from their Indian families, tribes and 
cultures, never regain what they have lost.
  The 1978 statute has worked well since its inception, and the reasons 
it was introduced are crucial to understanding the act and the 
legislation we introduce today. After exhaustive congressional 
testimony and many years of hard work the Indian Child Welfare Act was 
enacted in 1978. Prior to 1978 there were no available protections for 
Indian children, families, or tribes in situations involving the 
unwarranted and forced removal of Indian children from their families, 
tribes, and rich cultures. The cold fact is that prior to ICWA between 
25 percent and 35 percent of all Indian children were separated from 
their families and given to adoptive families or placed in foster care 
or in institutions.
  Through exhaustive hearings prior to enactment of the 1978 act, the 
Congress realized that at the staggering rate of Indian child removal, 
it would have been simply a matter of time before Indian families and 
tribes would literally be sapped of their futures--their precious 
children.
  The ICWA is procedural in nature and is designed to protect the best 
interests of Indian children by reinforcing the strong interests Indian 
families and tribes have in maintaining their relationships with their 
children. The act also recognizes that tribal authorities and tribal 
courts are the appropriate authorities over Indian adoptions and 
placements. Just as we in the majority often speak of maintaining 
families and traditions and of respecting the rights of local 
governments, this act is one of the few Indian statutes that actually 
does both.

  Non-Indian institutions, including State courts, do not and cannot 
completely understand the unique culture and relationships that make up 
tribal life. Because they cannot know these facts and these 
relationships, they should not be given authority to make child custody 
decisions involving Indian children. Practically, State authorities are 
not in a position to make these decisions. Legally, they should not be 
allowed to make these decisions. The right of any sovereign nation, 
including Indian nations, includes the right to determine who is and 
who is not a member or citizen. The legislation we introduce today 
preserves those most basic rights of Indian tribes: tribal self-
preservation and self-determination.
  Mr. President, I want to say a word about adoptive parents and 
families. The decision to adopt a child or children is one that is done 
out of the noblest motives, and with much love and affection. It is 
often a process fraught with many obstacles, both emotional and 
financial. I have nothing but the greatest respect and admiration for 
adoptive parents. This legislation will provide adoptive parents with 
the security they sometimes lack under current law. The bill will 
provide what many have complained of: finality and security in cases 
involving Indian children. For the past several years, there have been 
highly publicized cases involving Indian children and what some felt 
were late interventions by tribes in these proceedings.
  By strengthening the procedures of ICWA this bill will make cases 
like the ones we saw last year a thing of the past. Parties seeking 
placement of Indian children would be required to file detailed notices 
with the tribe that includes biographical information on the child, as 
well as information regarding the rights of the tribe in responding to 
the notice. With the notice in hand, the

[[Page S3123]]

tribe must decide if it wants to intervene or not, and to inform the 
party seeking placement of its intentions.
  By requiring tribes to file written notice of intervention and 
providing time limits within which tribes can intervene in proceedings, 
adoptive parents can be assured that they will not face the prospect of 
having final or near final. These procedural demands are not unduly 
burdensome and fall equally on both the parties seeking placement and 
tribal governments.
  The truth is that many of these inflammatory and well-publicized 
cases involved unethical attorneys and other adoption professionals who 
advised their Indian clients to conceal or not reveal their Indian 
heritage in an effort to expedite the adoption. Because ICWA-related 
adoptions and proceedings involve procedural requirements, some 
attorneys and professionals seek to cut corners and save time and 
money. Not only is this shortsighted, but is damaging to all parties 
involved in an adoption or custody proceeding.

  By expediting these adoptions, the attorneys interests were served. 
But what about the Indian children, Indian families, Indian tribes, and 
non-Indian adoptive families?
  As we have seen, these people have had to endure long, bitter, and 
costly court battles some of which continue to this day. The 
legislation we introduce today will provide tough civil and criminal 
penalties to any person that willfully falsifies facts regarding 
whether a child is Indian or whether a parent is Indian; makes false or 
fraudulent statements; or falsifies documents containing facts related 
to the proceeding.
  These provisions are not radical notions. They simply provide that if 
you are involved in an ICWA-related proceeding, and if you do not want 
to lose your money and your freedom, follow the law. No good adoption 
attorney worth his salt will fear these penalties if he or she follows 
the law and is forthright with the facts.
  I urge my colleagues to join in enacting this crucial legislation to 
bring stability and certainty to adoptions and other proceedings 
involving Indian children.
                                 ______