[House Report 104-542]
[From the U.S. Government Publishing Office]
104th Congress Rept. 104-542
HOUSE OF REPRESENTATIVES
2d Session Part 1
_______________________________________________________________________
ADOPTION PROMOTION AND STABILITY ACT OF 1996
_______
April 30, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. Young of Alaska, from the Committee on Resources, submitted the
following
R E P O R T
together with
SUPPLEMENTAL VIEWS
[To accompany H.R. 3286]
[Including cost estimate of the Congressional Budget Office]
The Committee on Resources, to whom was referred the bill
(H.R. 3286) to help families defray adoption costs, and to
promote the adoption of minority children, having considered
the same, report favorably thereon with an amendment and
recommend that the bill as amended do pass.
The amendment is as follows:
Beginning on page 13, strike title III and amend the table
of contents accordingly.
purpose of the bill
The purpose of H.R. 3286 is to help families defray
adoption costs, and to promote the adoption of minority
children.
background and need for legislation
The Adoption Promotion and Stability Act of 1996, H.R.
3286, contains three titles. The Committee on Resources only
has jurisdiction over title III, which deals with amendments to
the 1978 Indian Child Welfare Act (ICWA). For that reason this
report concerns only title III of H.R. 3286.
ICWA was enacted in 1978 in response to an appalling
situation which existed in the 1970's where massive numbers of
Indian children (in some States 25-35 percent of all Indian
children born) were being put up for adoption. Unethical
attorneys were locating children and arranging many adoptions
without due process of law. Of great concern was a failure to
recognize the cultural and social standards of Indian families
and their communities. ICWA was based upon the premise that an
Indian child's tribe has primary authority, shared with his or
her parents, over that child's relationship with his or her
tribe.
Congress found it in the best interests of all Indian
children to establish minimum Federal standards for the removal
of Indian children from their families and their placement in
foster or adoptive homes which reflect the unique values of
Indian culture. The most important component in its solution to
the problems of Indian child adoption was to give tribal
courts, instead of State courts, exclusive jurisdiction over
Indian child custody proceedings. Congress also imposed certain
standards on these proceedings.
Title III of H.R. 3286 would amend the Indian Child Welfare
Act to exempt from its coverage Indian child custody
proceedings involving Indian children whose parents do not
maintain significant social, cultural, or political affiliation
with the tribe of which the parents are members. This proposal
represents a major change to ICWA. In particular, title III of
H.R. 3286 provides that ICWA does not apply to any child
custody proceeding involving a child who does not reside on or
is not domiciled within a reservation, unless:
at least one biological parent is of Indian descent;
and
at least one biological parent maintains
``significant social, cultural, or political
affiliation'' with the parent's tribe.
In effect, this proposal would create a gigantic loophole
in ICWA by allowing a State court, instead of a tribal court,
to decide that an Indian child's parents have not maintained
``significant social, cultural, or political affiliation'' with
a tribe.
Aside from the removal of the proceeding to a State court
from a tribal court, this bill contains no legal definitions of
the words ``significant'', ``social'', ``cultural'',
``political'', or ``affiliation''. These determinations would
no doubt be subject to massive litigation.
Title III of H.R. 3286 also adds a new, universal
requirement to each tribe's existing requirements for
membership by requiring that ``a person who attains the age of
18 years before becoming a member of an Indian tribe may become
a member of an Indian tribe only upon the person's written
consent.'' It is unclear what this language has to do with the
adoption of Indian children or with ICWA. Whatever its intent,
this provision implies that State courts, rather than tribal
courts, will have jurisdiction over the question of whether
certain individuals are or are not members of a tribe.
In sum, title III of H.R. 3286 would make massive changes
in ICWA by removing from tribal courts, and giving to State
courts, jurisdiction over whether ICWA applies to certain
Indian children and certain adults.
committee action
H.R. 3286 was introduced on April 23, 1996, by
Congresswoman Susan Molinari. The Committee on Resources
received a referral of those portions of the bill under its
jurisdiction until April 30, 1996. Only title III of the bill
lies within the Committee's jurisdiction. No hearings were held
on title III of H.R. 3286. On April 25, 1996, the Full
Resources Committee met to consider title III of H.R. 3286. An
amendment to strike title III was offered by Committee Chairman
Don Young, and adopted by voice vote. The bill as amended was
then ordered favorably reported to the House of
Representatives, in the presence of a quorum.
section-by-section analysis
The Committee on Resources struck the only portions of
H.R. 3286 (title III) which were referred to the Committee.
committee oversight findings and recommendations
With respect to the requirements of clause 2(l)(3) of rule
XI of the Rules of the House of Representatives, and clause
2(b)(l) of rule X of the Rules of the House of Representatives,
the Committee on Resources' oversight findings and
recommendations are reflected in the body of this report.
inflationary impact statement
Pursuant to clause 2(l)(4) of rule XI of the Rules of the
House of Representatives, the Committee estimates that the
enactment of title III of H.R. 3286, as amended by the
Committee on Resources, will have no significant inflationary
impact on prices and costs in the operation of the national
economy.
cost of the legislation
Clause 7(a) of rule XIII of the Rules of the House of
Representatives requires an estimate and a comparison by the
Committee of the costs which would be incurred in carrying out
title III of H.R. 3286. However, clause 7(d) of that Rule
provides that this requirement does not apply when the
Committee has included in its report a timely submitted cost
estimate of the bill prepared by the Director of the
Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974.
compliance with house rule xi
1. With respect to the requirement of clause 2(l)(3)(B) of
rule XI of the Rules of the House of Representatives and
section 308(a) of the Congressional Budget Act of 1974, title
III of H.R. 3286, as amended by the Committee on Resources,
does not contain any new budget authority, spending authority,
credit authority, or an increase or decrease in revenues or tax
expenditures.
2. With respect to the requirement of clause 2(l)(3)(D) of
rule XI of the Rules of the House of Representatives, the
Committee has received no report of oversight findings and
recommendations from the Committee on Government Reform and
Oversight on the subject of title III of H.R. 3286.
3. With respect to the requirement of clause 2(l)(3)(C) of
rule XI of the Rules of the House of Representatives and
section 403 of the Congressional Budget Act of 1974, the
Committee has received the following cost estimate for title
III of H.R. 3286 from the Director of the Congressional Budget
Office.
congressional budget office cost estimate
U.S. Congress,
Congressional Budget Office,
Washington, DC, April 29, 1996.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared a cost estimate for Title III of H.R. 3286, the
Adoption Promotion and Stability Act of 1996, as ordered
reported by the House Committee on Resources on April 25, 1996.
The Committee adopted an amendment that would strike title
III of H.R. 3286. Therefore CBO estimates that title III of
H.R. 3286, as ordered reported, would have no federal budgetary
effects.
Since enactment would not affect direct spending or
receipts, pay-as-you-go procedures would not apply to this
title to the bill. Title III of H.R. 3286, as ordered reported,
contains no mandates as defeined in Public Law 104-4 and would
impose no direct costs on state, local, or tribal governments,
or the private sector.
If you wish further details on this estimate, we will be
pleased to provide them.
Sincerely,
James L. Blum
(For June E. O'Neill, Director).
compliance with public law 104-4
Title III of H.R. 3286 contains no unfunded mandates.
departmental reports
The Committee has received no departmental reports on title
III of H.R. 3286.
changes in existing law
If enacted, title III of H.R. 3286, as amended by the
Committee on Resources, would make no changes in existing law.
changes in existing law made by the bill, as reported
The bill was referred to this committee for consideration
of such provisions of the bill as fall within the jurisdiction
of this committee pursuant to clause 1(l) of rule X of the
Rules of the House of Representatives. Any changes made to
existing law by the Committee on Ways and Means are shown in
the report filed by that committee. The amendment made by this
committee does not make any change in existing law.
SUPPLEMENTAL VIEWS ON H.R. 3286
We report these supplemental views on title III of H.R.
3286, the Adoption Promotion and Stability Act of 1996 (the
``bill''), because of our great concern that this bill, however
well-intentioned, will do grave and unavoidable harm to the
Indian Child Welfare Act (the ``Act'') and even, perhaps, to
the future of Indian tribes and Indian children as well.
In addition, we write to express our displeasure with the
process in which this bill has been introduced, referred, and
scheduled for a floor vote. The fact that title III of this
bill was introduced without any consultation with those people
it affects the most--Indian parents, children, and tribes--
strikes us not only as grossly paternalistic but a recipe for
legislative disaster. Indeed, the laws and practices
surrounding Indian adoptions are complex and poorly understood.
Rather than proceeding rashly into a field armed simply with
anecdotal evidence and fierce convictions, perhaps the sponsors
should have sat down and gathered empirical information from
the tribes and social workers most familiar with the day-to-day
workings of the Act. In other words, the bill's sponsors should
have at least thought about conducting a hearing on this
important measure. Yet none were scheduled or even planned.
The bill's sponsors had originally planned to bring this
bill to the House floor without any Committee proceedings at
all. Although the House leadership apparently agreed with the
Committee Chairman that there should at least be an experience
of process and therefore granted a six day referral to this
Committee, the fact remains that the this Committee's role was
always viewed suspiciously, and even antagonistically, largely
out of a concern that the committee membership would be
sympathetic to the Indian tribes' point of view. Of course, we
have serious membership with the bill, as set forth below. That
is because this Committee takes this Nation's federal trust
responsibility towards the more than 550 Alaska Native and
American Indian tribes seriously.
This does not mean that the Committee is not aware of
problems associated with the implementation of the Act, nor
does it mean that the Committee is not willing to take measures
to make improvements to the Act. The point is that the
Committee members would have been willing to work with the
sponsors in a constructive and deliberate manner on legislation
that improves and strengthens the Act. But that is not what the
sponsors apparently wanted. And that is unfortunate because the
remaining adoption titles in the bill have strong merit. It
seems odd to jeopardize passage of an otherwise worthwhile bill
by burdening it with a controversial, untested, and hastily
drafted provision that has merited the strong objection of the
Committee of primary jurisdiction and the unanimous opposition
of Indian tribes throughout the country.\1\
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\1\ To date, the Committee has received letters from twenty-two
individual tribes, as well as the Intertribal Council of Arizona
(representing nineteen Indian tribes), the Bureau of Catholic Missions,
the National Congress of American Indians (representing 201 tribes),
the Association on American Indian Affairs, the Native American Rights
Fund, the National Indian Child Welfare Association, the Indian Child
Welfare Law Center, and the United Indians of All Tribes Foundation,
all strongly opposing the bill.
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Turning to the substance of the bill, our objections are
manyfold. In order to fully illustrate the depth and nature of
our concerns, we believe it is appropriate to first examine the
history and purposes of the Act.
The Indian Child Welfare Act was enacted in 1978, after ten
years of Congressional study, in order to protect Indian
children and Indian tribes. This Committee, in its 1978 Report,
determined that ``[t]he wholesale separation of Indian children
from their families is perhaps the most tragic and destructive
aspect of American Indian life today.'' \2\
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\2\ H.R. Rep. No. 1386, 95th Cong., 2d Sess. (hereinafter 1978
House Report) 9. H.R. 12533, was introduced in the 95th Congress by
Chairman Udall and co-sponsored by a number of committee members
including Reps. Miller and Vento.
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As stated in the Act itself, 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. * * *'' \3\
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\3\ 25 U.S.C. Sec. 1901(2), (3).
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Prior to enactment of ICWA, the Committee received
testimony from the Association on American Indian Affairs that
in 1969 and 1974 approximately 25% to 35% of all Indian
children had been separated from their families and placed in
adoptive families, foster care, or institutions.\4\ The rate of
adoptions of Indian children was wildly disproportionate to the
adoption rate of non-Indian children. According to the 1978
House Report, Indian children in Montana were being adopted at
a per capita rate thirteen times that of non-Indian children,
in South Dakota sixteen times that on non-Indian children, and
in Minnesota five times that of non-Indian children.\5\ In one
House hearing, Chief Calvin Isaac of the Mississippi Band of
Choctaw Indians explained the cause for the large removal of
Indian children:
\4\ 1978 House Report at 9.
\5\ Id.
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.\6\
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\6\ Hearings on S. 1214 before the House Interior and Insular
Affairs Subcommittee on Indian Affairs and Public Lands, 95th Cong., 2d
Sess. (1978).
Thus, Congress chose to act to protect Indian tribes
against the disproportionate wholesale, and often unwarranted,
removal of Indian children from their families and subsequent
placement in adoptive or foster homes. Chairman Udall, the
Act's principal sponsor, reaffirmed the need for the Act on the
House floor, ``Indian tribes an Indian people are being drained
of their children, as a result, their future as a tribe and a
people is being placed in Jeopardy.'' \7\
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\7\ 124 Cong. Rec. 38102 (1978).
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We emphasize that Congress enacted ICWA in recognition of
two 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 expounded on this latter
interest, quoting a lower court:
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.\8\
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\8\ Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
52 (1988) quoting In re Adoption of Halloway, 732 P.2d 962, 969-70
(Utah 1986).
Another problem surrounding Indian adoptions that the
Congress chose to address was the inability of non-Indian
institutions, in particular state courts and adoption agencies,
to recognize the differing cultural values and relations in
Indian communities.\9\ For instance, state courts and adoption
workers usually failed to grasp the powerful rule and presence
of the extended family in Indian communities.\10\ Thus,
Congress structured the Act to counter the tendency of non-
Indians to focus solely on the immediate relationship of the
Indian children to their parents whole ignoring the
relationship of the children to their extended family. In fact,
that is a glaring shortcoming of the proposed bill which
stresses only the relationship of the child's parent to the
tribe.
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\9\ The Act states that ``the States * * * have often failed to
recognize the essential tribal relations of Indian people and the
cultural and social standards prevailing in the Indian communities and
families. 25 U.S.C. 1901(5).
\10\ As stated in the 1978 House Report: ``[T]he dynamics of Indian
extended families are largely misunderstood. An Indian child may have
scores of, perhaps more than a hundred, relatives who are counted as
close, responsible members of the family.'' 1978 House Report at 10.
See also Holyfield at 35, n. 4.
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In order to balance the interest of Indian children and
their tribes, Congress set up a carefully tailored dual
jurisdictional scheme to provide deference to tribal judgment
in cases involving Indian children residing on Indian lands and
to provide concurrent but presumptive tribal jurisdiction in
the case of Indian children not residing on Indian lands. It is
important to recognize that this dual jurisdictional scheme
settles jurisdictional and choice-of-law issues in a way that
best facilitates the placement of Indian children with
families. This is so for the simple reason that tribal courts
are generally in a better position than state courts to know
whether an Indian child has relatives who want to adopt the
child, or whether there are other Indian or non-Indian families
who want to adopt the children.
As a final matter, Congress enacted ICWA to address the
social and psychological impact on Indian children of placement
in non-Indian families. The U.S. Supreme Court has stated that
``it is clear that Congress' concern over the placement of
Indian children in non-Indian homes was based in part on
evidence of the detrimental impact on the children themselves
of such placement outside their culture.'' Holyfield at 59-50.
In particular, the Court noted studies that demonstrated that
Indian children raised in non-Indian settings often have
recurring developmental problems encountered adolescence. Id.
at 50, n.24. See also, Berlin, ``Anglo Adoptions of Native
Americans, Repercussions in Adolescence,'' 17 J. Am. Acad. of
Child Psychology 387 (1978). Removal of Indian children from
Indian families precipitates not only a cultural loss to the
Indian tribe but a loss of identity to the children themselves.
Recent studies indicate that ICWA has worked well in
redressing the wrongs caused by the removal of Indian children
from their families. A 1987 report revealed an overall
reduction in foster care placement in the early 1980s after
enactment of ICWA.\11\ A 1988 report indicated that ICWA had
motivated courts and agencies to place greater numbers of
Indian children into Indian homes.\12\ Testimony received at a
May 1995 hearing on H.R. 1448 from Terry Cross, director of the
National Indian Child Welfare Association, indicates that,
contrary to assertion by non-Indian adoption attorneys and
agencies of hundreds or even thousands of ``problem'' Indian
adoptions, there may be only 40 contested Indian adoption cases
in the past fifteen years, less than one-tenth of one-percent
of the total number of Indian adoption cases during that
period. As set forth later, we believe that the vast majority
of those ``problem'' cases are the direct result of willful
violations of the Act and can be addressed by changes to the
law that promote greater notification and sanctions for
violations.
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\11\ See ``Note, The Best Interests of Indian Children in
Minnesota,'' 17 American Indian Law Review 237, 246-47 (1992).
\12\ Id.
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Having examined the background of the Act, we turn to
reservations about the substance of H.R. 3286.
Section 301 of the bill would limit the application of the
Act to off-reservation Indian children with at least one parent
who maintains a ``significant'' social, cultural, or political
affiliation with an Indian tribe. A determination of such an
affiliation is final.
Our first objection is that this section is vague. The bill
provides no guidance to the courts as to the meaning of
``significant'' or ``affiliation''. The use of ``final'' can be
read to preclude appellate review by state, federal or tribal
courts. The vagueness inherent in this section is likely to
lead to new levels and areas of litigation, contrary to the
purposes of the Act and in frustration of efforts to quickly
place Indian children with adoptive or foster families.
Second, the bill needlessly jettisons a simple test for the
application of the Act, membership (which is a political test),
in favor of a complicated test. Again, this will likely promote
rather than curtail litigation involving Indian custody
proceedings, contrary to the purpose of the Act.
Third, the bill would cede back to state courts and
agencies the primary role of making placement and
jurisdictional decisions. As explained in the history above,
Congress chose to give primary jurisdiction over the adoption
of Indian children to the tribes precisely because of the
states' inability to understand tribal cultural and political
institutions. Thus, to give states the role of first
determining whether an Indian parent has sufficient social,
cultural or political affiliations with a tribe as to warrant
tribal court jurisdiction runs contrary to the intent of the
Act. To date we have heard no testimony or evidence to support
the assumption that there has been any improvement in the state
courts' or agencies' abilities to understand tribal values and
cultures.
Fourth, by focusing solely on the relationship of the
child's parent to the tribe, the bill ignores the entire role
of the extended family in Indian country. Thus the bill
operates at the expense of the child's grandparents, aunts and
uncles who likely will have the requisite ``significant''
contacts with the tribe and who have a strong familial and
cultural interest in the child. It was the inability of state
courts and adoptions agencies to recognize this interest that
led to the wholesale removal of Indian children from their
culture in the first place.
Fifth, the bill misses the fat that the Act is largely
jurisdictional in nature. In other words, the Act transferred
jurisdiction in Indian adoption cases to tribal courts from
state courts because the tribes were in the best position to
act in the best interest of Indian children. But, the Act in no
way requires that Indian children be placed with Indian
families. The bill, unfortunately, seems driven in part out of
fear that tribal court jurisdiction is tantamount to placement
in an Indian family. We believe this fear is unfounded.\13\
Rather, we believe that tribal courts remain capable of sound
judgment and will place an Indian child with a family, Indian
or non-Indian, when it determines that it is in the child's
best interests.
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\13\ The Supreme Court has rejected attacks against tribal court
jurisdiction founded on claims of bias or incompetence, noting
Congressional policy promoting the development of tribal courts. See
Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9, 19 (1987).
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Section 302 of the bill provides that an Indian who is
eighteen years of age or older can only become a member of a
tribe upon his or her written consent and that membership in a
tribe is effective from the actual date of admission and shall
not be given retroactive effect.
This section reaches directly into a core area of tribal
sovereignty, membership,\14\ and makes written consent a
prerequisite for adults. The major problem with this approach
is that tribal membership is not, as a matter of practice,
synonymous with enrollment. Many tribes, especially smaller
tribes, do not have updated enrollment lists. The Department of
Interior's own Guideline to State Courts for Indian Child
Custody Proceedings point this out.\15\ The provisions of this
bill would penalize Indian children and their parents in these
tribes. Lack of funds is one reason. Another reason is that
Indians often do not enroll until such time as they need Indian
Health Service care or scholarship assistance. In addition, we
have heard testimony that tribes often simply ``know'' who
their members are.
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\14\ See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55-56 (1978)
citing Roff v. Burney, 168 U.S. 218 (1897).
\15\ The Guidelines state: ``Enrollment is not always required in
order to be a member of a tribe. Some tribes do not have written rolls.
Others have rolls that list only persons that were members as of a
certain date. Enrollment is the common evidentiary means of
establishing Indian status, but it is not the only means nor is it
necessarily determinative.''
Guidelines for State Courts: Indian Child Custody Proceedings, 44
Fed. Reg. 67,586 (Nov. 26, 1979).
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The result is that many Indians who are part of the Indian
community and eligible for enrollment would be excluded from
the Act's coverage simply because they have not taken the
formal step of enrollment. Thus, we believe the bill is
overbroad in this respect because it will exclude children,
even full-blooded Indians, whose parents are in fact members of
a tribe. This bill exacerbates this problem by placing
questions of membership in the hands of the state courts rather
than tribal courts. We believe that at a minimum, membership is
a matter that should be left solely to the tribes.
This section would also extend to involuntary proceedings
and allow state agencies to remove Indian children from on-
reservation homes where neither parent has enrolled in a tribe.
Obviously, this is one of the very problems that led to the
creation of the Act. We see no need to take such a dramatic
step backwards.
Lastly, we take issue with the assertion that this Act not
apply to children who are one-tenth, one-sixteenth, one-thirty
second, or some other degree of Indian blood. The law is clear
in this respect: tribes, as sovereign entities, are free to set
membership on any number of criteria, and each tribe has the
power to determine whether or not to rely upon degree of blood
as such a criterion. As previously stated, Congress has no
business intruding upon such central matters of tribal
sovereignty.
Having set forth these criticisms, we suggest the following
approach to address the real problem surrounding lengthy
adoption disputes, namely the willful failure by adoption
attorneys and agencies to comply with the terms of the Act.
First, mandate notice to the tribe in all voluntary
proceedings. Second, impose sanctions upon willful violators of
the Act.
While it is true that there are rare instances of Indian
child custody cases that are painful for the children and
families, we believe that most of the problems lie not in the
Act itself, but rather with the failure to comply with the
terms of the Act. For instance, in the Rost case involving the
twins from California, the biological father testified in court
deposition that he had been counseled to omit any reference to
his Indian heritage in order to avoid ICWA proceedings. When
the terms of the Act are complied with, the Act works well and
facilitates the quick placement of Indian children. We are
aware of the discrepancy in the Act which gives a tribe a right
to intervene in custody proceedings, voluntary or involuntary,
at any point, 25 U.S.C. 1911(c), yet mandates notice to the
tribe only in involuntary proceedings, 25 U.S.C. 1911(a). We
believe that as a matter of policy, the best approach is to
provide notification to the tribe in all state court
proceedings, voluntary and involuntary, in order to carry out
the goals of the Act. We would be glad to work with the bill's
sponsors on these changes if they desire.
In sum, we believe that the Indian Child Welfare Act has
been successful as a protection to Indian tribes and families.
There will undoubtedly arise, from time to time, difficult
adoption cases, but these cases are usually the result of an
unintentional or, as is often the case, an intentional attempt
to get around the requirements of the Act. We do not believe
that the legislation at hand adequately addresses those
problems. Such legislation deserves thorough ex-
amination by this Committee and input from the tribes it
affects or we run the risk of imposing even more big-
government, paternalistic measures upon the Indian tribes.
George Miller.
Bill Richardson.
Neil Abercrombie.
Eni Faleomavaega.
Sam Farr.
Patrick J. Kennedy.
Robert A. Underwood.
Dale E. Kildee.