[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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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\
---------------------------------------------------------------------------
    \7\ 124 Cong. Rec. 38102 (1978).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \11\ See ``Note, The Best Interests of Indian Children in 
Minnesota,'' 17 American Indian Law Review 237, 246-47 (1992).
    \12\ Id.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    \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).
---------------------------------------------------------------------------
    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.