[House Report 104-808]
[From the U.S. Government Publishing Office]



104th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 2d Session                                                     104-808
_______________________________________________________________________


 
              INDIAN CHILD WELFARE ACT AMENDMENTS OF 1996

                                _______
                                

 September 19, 1996.--Committed to the Committee of the Whole House on 
            the State of the Union and 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. 3828]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on Resources, to whom was referred the bill 
(H.R. 3828) to amend the Indian Child Welfare Act of 1978, and 
for other purposes, having considered the same, report 
favorably thereon without amendment and recommend that the bill 
do pass.

                          Purpose of the Bill

    The purpose of H.R. 3828 is to amend the Indian Child 
Welfare Act of 1978 to promote stability in native American 
custody proceedings and for other purposes.

                  Background and Need for Legislation

    On April 6, 1995, Representative Deborah Pryce (R-OH) 
introduced H.R. 1448 which amended the Indian Child Welfare Act 
of 1978 (ICWA). ICWA was enacted to response to 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 great concern was a failure to 
recognize the cultural and social standards of Indian families 
and their communities. ICWA was based on the premise that an 
Indian child's tribe has primary authority, shared with the 
child's parents, over that child's relationship with his or her 
tribe. ICWA established minimum Federal standards for the 
removal of Indian children from their families and their 
placement in foster or adoptive homes. ICWA gives tribal 
courts, rather than State courts, exclusive jurisdiction over 
Indian child custody proceedings.
    H.R. 1448 was introduced to address problems with Native 
American adoptive placements illustrated by what is known as 
the Rost case (In re Bridget R., 40 Cal. Rprt. 2d 507 (1996)). 
The case involved an adoptive placement of California Native 
American twins with an Ohio couple. This placement occurred 
after the attorney handling the adoption urged the birth 
parents to not disclose their Native American heritage, and 
altered records in the case to circumvent federal standards set 
out in ICWA. These types of cases have presented the courts 
with difficult choices between strict compliance with ICWA and 
preserving the established adoptive placement.
    H.R. 1448's solution was to remove from tribal to State 
courts jurisdiction over whether ICWA applies to certain Indian 
children and their parents. It also placed restrictions on 
tribal enrollment for ICWA purposes and limited the time formal 
tribal enrollment could occur relative to the commencement of 
ICWA proceedings.
    On May 10, 1995, the Subcommittee on Native American and 
Insular Affairs held hearings with sharp division in testimony 
between adoption attorneys' support for the proposal seeking 
certainty in adoption placements and tribal representatives 
opposing the proposal because it limited membership decisions 
by tribes in a manner contrary to historical principals of 
federal Indian policy and law. The hearings, however, 
demonstrated that avoidable and prolonged litigation over the 
application of ICWA needlessly destabilizes some Native 
American adoptions. This litigious environment discourages 
adoptive parents from adopting Native American children, and 
disrupts some adoptive placements to the detriment of the 
child. While tribal representatives and adoption attorneys 
agreed that problems existed, the testimony revealed 
disagreement over perceived causes of the problems.
    Tribal representatives noted failure of the current law to 
require notice to tribes of proposed voluntary adoptions and 
widespread failure to place Native American children in 
available placements within the child's extended birth family 
or tribe. The problem is best illustrated in two Alaskan cases. 
In In Re IRS 690 P2d 10 (Alaska 1984) and Catholic Social 
Services v. CAA 783 P2d 1159 (Alaska, 1989), the court held 
that tribes could intervene in voluntary adoption proceedings, 
but were not entitled to notice of voluntary proceedings. 
Consequently, tribal interventions have been delayed until the 
tribe learns of the adoption by informal means, and the late 
interventions unnecessarily disrupt placements and prolong 
litigation.
    A lack of any notice is also a problem. A recent study of 
an Alaska State agency revealed that in involuntary cases of 
relinquishment of Indian parental custody where notice to the 
tribe is required under ICWA, State social workers notified 
tribes in only 47.3 percent of cases reviewed. The State 
notified tribes in only 77.8 percent of cases prior to 
termination of parental rights. In cases where notice to the 
tribe was delayed, tribal intervention often occurred in the 
latter stages of litigation and was disruptive of case plan 
development.
    Adoption attorneys experienced similar frustrations. 
Testimony before the Subcommittee suggested that in some cases, 
late tribal interventions occurred despite timely notice to 
tribes. In other cases, unreasonably late withdrawal of 
parental consents to adoption occurred with equally disruptive 
effect to otherwise stable Native American adoptive placements.
    Based upon the conflicting evidence before the 
Subcommittee, the Chairman of Committee on Resources requested 
representatives of the Tanana Chiefs Conference and the 
National Indian Child Welfare Association to meet with 
representatives of the American Academy of Adoption Attorneys 
and the Academy of California Adoption Attorneys to seek a 
common approach to avoid prolonged litigation over Native 
American adoptive placements and to promote stability in Native 
American adoptions. H.R. 3828 is the result of these 
discussions.
    While these discussions were occurring, on May 10, 1996, 
the House of Representatives passed H.R. 3286, a bill 
incorporating an amended version of H.R. 1448. H.R. 3286's 
amendments to ICWA again limited the ability of tribes to 
determine their tribal membership for ICWA purposes without 
addressing the tribal concerns respecting the lack of notice to 
tribes regarding voluntary adoptions or enforcement of the 
terms of ICWA. The bill is currently pending in the Senate 
after the Senate Committee on Indian Affairs struck the ICWA 
amendment language. See, Senate Report 104-288, 104th Cong. 
(1996).

                            Committee Action

    H.R. 3828 was introduced by Congressman Don Young (R-AK) on 
July 16, 1996. The bill was referred to the Committee on 
Resources. The Committee held a markup of the bill on August 1, 
1996, and ordered it reported without amendment by voice vote.

                      Section-by-Section Analysis

                   section 1. short title; references

    Section 1 cites the short title of the bill as the ``Indian 
Child Welfare Act Amendments of 1996'' and clarifies references 
in the bill to the Indian Child Welfare Act of 1978 (25 U.S.C. 
1901 et seq.).

                   section 2. exclusive jurisdiction

    Section 2 amends ICWA Section 101(a) to clarify that an 
Indian tribe retains exclusive jurisdiction over any child 
otherwise made a ward of the tribal court when the child 
subsequently changes residence or domicile for treatment or 
other purposes.

           section 3. intervention in state court proceedings

    Section 3 amends ICWA Section 101(c) to make a conforming 
technical amendment conditioning an Indian tribe's existing 
right of intervention under 25 U.S.C. 1911(c) to the time 
limitations added by Section 8 of the bill.

          section 4. voluntary termination of parental rights

    Section 4 amends ICWA Section 103(a) to clarify that ICWA 
applies to voluntary consent in adoptive, preadoptive and 
foster care placements. In addition, Section 4 adds a 
requirement that the presiding judge certify that any attorney 
or public or private agency facilitating the voluntary 
termination of parental rights or adoptive placement has 
informed the birth parents of the placement options available 
and of the applicable provisions of ICWA, and has certified 
that the birth parents will be notified within 10 days of any 
change in the adoptive placement. An Indian custodian vested 
with legal authority to consent to an adoptive placement is to 
be treated as a parent, including the requirements governing 
notice and consent.

                    section 5. withdrawal of consent

    Section 5 amends ICWA Section 103(b) by adding several new 
paragraphs. The additional paragraphs would set limits on when 
an Indian birth parent may withdraw his or her consent to an 
adoption. Paragraph (2) would permit revocation of parental 
consent in only two instances before a final decree of adoption 
is entered except as provided in paragraph (4). First, a birth 
parent could revoke his or her consent if the original 
placement specified by the birth parent terminates before a 
final decree of adoption has been entered. Second, a birth 
parent could revoke his or her consent if the revocation is 
made before the end of a 30 day period that begins on the day 
that parent received notice of the commencement of the adoption 
proceeding or before the end of a 180 day period that begins on 
the day the Indian tribe has received notice of the adoptive 
placement, whichever period ends first. Paragraph (3) provides 
that upon the effective revocation of consent by a birth parent 
under the terms of paragraph (2), the child shall be returned 
to that birth parent. Paragraph (4) requires that if a birth 
parent has not revoked his or her consent within the time 
frames set forth in paragraph (2), he or she may revoke consent 
only pursuant to applicable State law or upon a finding by a 
court that the consent was obtained through fraud or duress. 
Paragraph (5) provides that upon the effective revocation of 
consent obtained by duress or fraud by a birth parent, the 
child shall be returned to that birth parent and the decree 
vacated. Paragraph (6) provides that no adoption that has been 
in effect for at least two years can be invalidated under any 
of the conditions set forth in this section, including those 
related to a finding of duress or fraud.

                      section 6. notice to tribes

    Section 6 amends ICWA Section 103(c) to require notice to 
the Indian tribe by any person seeking to secure the voluntary 
placement of an Indian child or the voluntary termination of 
the parental rights of a parent of an Indian child. The notice 
must be provided no later that 100 days after a foster care 
placement occurs, no later than five days after preadoptive or 
adoptive placement occurs, no later than ten days after the 
commencement of a proceeding for the termination of parental 
rights, and no later than ten days after the commencement of an 
adoption proceeding. Notice may be given prior to the birth of 
an Indian child if particular placement is contemplated. If an 
Indian birth parent is discovered after the applicable notice 
periods have otherwise expired despite a reasonable inquiry 
whether the child may be an Indian child, the time limitations 
placed by Section 8 of H.R. 3828 upon the rights of an Indian 
tribe to intervene apply only if the party discovering the 
Indian birth parents provides notice to the Indian tribe under 
this section no later than ten days after making the discovery.

                      section 7. content of notice

    Section 7 amends ICWA Section 103(d) to require that the 
notice provided under ICWA Section 103(c) include the name of 
the Indian child involved and the actual or anticipated date 
and place of birth of the child, along with an identification, 
if known after reasonable inquiry, of the Indian parent, 
grandparent, and extended family members of the Indian child. 
The notice must also provide information on the parties and 
court proceedings pending in the State court. The notice must 
inform the identified Indian tribe that it may have the right 
to intervene in the court proceeding, and must inquire whether 
the Indian tribe intends to intervene or waive its right to 
intervene. Finally, the notice must state that if the Indian 
tribe fails to respond by the statutory deadline, the right of 
that tribe to intervene will be considered to have been waived.

                section 8. intervention by indian tribe

    Section 8 adds four new subsections to ICWA Section 103.
    Under new ICWA Section 103(e), an Indian tribe could 
intervene in a voluntary proceeding to terminate parental 
rights only if it has filed a notice of intent or a written 
objection no later than 30 days after receiving the notice 
required by ICWA Sections 103 (c) and (d). An Indian tribe 
could intervene in a voluntary adoption proceeding only if it 
has filed a notice of intent to intervene or a written 
objection no later than the later of 90 days after receiving 
notice of the adoptive placement or 30 days after receiving 
notice of the adoption proceeding. If these notice requirements 
are not complied with, the Indian tribe could intervene at any 
time. However, an Indian tribe may no longer intervene in a 
proceeding after it has provided written notice to a State 
court of its intention not to intervene or if it determines 
that neither the child nor any birth parent is a member of that 
Indian tribe. Finally, subsection (e) would require that an 
Indian tribe accompany a motion for intervention with a 
certification that documents the tribal membership or 
eligibility for membership of the Indian child under applicable 
tribal law.
    New ICWA Section 103(f) would clarify that the act or 
failure to act of an Indian tribe to intervene under subsection 
(e) shall not affect any placement preferences or other rights 
accorded to individuals under ICWA, nor may this preclude an 
Indian tribe from intervening in a case in which a proposed 
adoptive placement is changed.
    New ICWA Section 103(g) would prohibit any court proceeding 
involving the voluntary termination of parental rights or 
adoption of an Indian child from being conducted before 30 days 
after the Indian tribe has received notice under ICWA Section 
103 (c) and (d).
    New ICWA Section 103(h) would authorize courts to approve, 
as part of the adoption decree of an Indian child, a voluntary 
agreement made by an adoptive family that a birth parent, a 
member of an extended family, or the Indian tribe will have an 
enforceable right of visitation or continued contact after 
entry of the adoption decree. However, failure to comply with 
the terms of such an agreement may not be considered grounds 
for setting aside the adoption decree.

                  section 9. fraudulent representation

    Section 9 adds a new Section 114 to ICWA that would apply 
criminal sanctions to any person (other than a birth parent) 
who: (1) knowingly and willfully falsifies, conceals, or covers 
up a material fact concerning whether a child is an Indian 
child or a parent is an Indian; or (2) makes any false of 
fraudulent statement, omission, or representation, or falsifies 
a written document knowing that the document contains a false 
or fraudulent statement or entry relating to a material fact 
described in (1). Section 9 further provides penalties for 
violations of this section.

            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)(1) 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 H.R. 3828 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 
H.R. 3828. 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, H.R. 
3828 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 H.R. 3828.
    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 H.R. 
3828 from the Director of the Congressional Budget Office.

               Congressional Budget Office Cost Estimate

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 16, 1996.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed H.R. 3828, the Indian Child Welfare Act Amendments of 
1996, as ordered reported by the House Committee on Resources 
on August 1, 1996.
    H.R. 3828 would amend the Indian Child Welfare Act, 
including provisions relating to the voluntary termination of 
parental rights of Indian parents in adoption and foster care 
cases. CBO estimates that this bill would have no federal 
budgetary effects. Since enactment of H.R. 3828 would not 
affect direct spending or receipts, pay-as-you-go procedures 
would not apply to the bill.
    Section 4 of the Unfunded Mandates Reform Act of 1995 
excludes from the application of that act legislative 
provisions that enforce the constitutional rights individuals. 
CBO has determined that this bill fits within that exclusion 
because it enforces the due-process rights of parties involved 
in the adoption of a Native American child.
    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

    Public Law 104-4 does not apply to H.R. 3828.

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3 of rule XIII of the Rules of the 
House of Representatives, changes in existing law made by the 
bill, as reported, are shown as follows (existing law proposed 
to be omitted is enclosed in black brackets, new matter is 
printed in italic, existing law in which no change is proposed 
is shown in roman):

                    INDIAN CHILD WELFARE ACT OF 1978

          * * * * * * *

                   TITLE I--CHILD CUSTODY PROCEEDINGS

  Sec. 101. (a)(1) An Indian tribe shall have jurisdiction 
exclusive as to any State over any child custody proceeding 
involving an Indian child who resides or is domiciled within 
the reservation of such tribe, except where such jurisdiction 
is otherwise vested in the State by existing Federal law. 
[Where an Indian child is a ward of a tribal court, the Indian 
tribe shall retain exclusive jurisdiction, notwithstanding the 
residence or domicile of the child.]
  (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.
          * * * * * * *
  (c) [In any State court proceeding] Except as provided in 
section 103(e), in any State court proceeding for the foster 
care placement of, or termination of parental rights to, an 
Indian child, the Indian custodian of the child and the Indian 
child's tribe shall have a right to intervene at any point in 
the proceeding.
          * * * * * * *
  Sec. 103. (a)(1) Where any parent or Indian custodian 
voluntarily consents to a [foster care placement] foster care 
or preadoptive or adoptive placement or to termination of 
parental rights, such consent shall not be valid unless 
executed in writing and recorded before a judge of a court of 
competent jurisdiction and accompanied by the presiding 
[judge's certificate that the terms] judge's certificate that--
          (A) the terms and consequences of the consent were 
        fully explained in detail and were fully understood by 
        the parent [or Indian custodian.] or Indian custodian; 
        and
          (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.
  [The court shall also certify] (2) The court shall also 
certify that either the parent or Indian custodian fully 
understood the explanation in English or that it was 
interpreted into a language that the parent or Indian custodian 
understood. [Any consent given prior to,]
  (3) Any consent given prior to, or within ten days after, 
birth of the Indian child shall not be valid.
  (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.
  (b)(1) Any parent or Indian custodian may withdraw consent to 
a foster care placement under State law at any time and, upon 
such withdrawal, the child shall be returned to the parent or 
Indian custodian.
  (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)(A) 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--
          (i) in a manner consistent with paragraph (3), the 
        child shall be returned immediately to the parent who 
        revokes consent; and
          (ii) 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.
  [(c) In any voluntary proceeding for termination of parental 
rights to, or adoptive placement of, an Indian child, the 
consent of the parent may be withdrawn for any reason at any 
time prior to the entry of a final decree of termination or 
adoption, as the case may be, and the child shall be returned 
to the parent.
  [(d) After the entry of a final decree of adoption of an 
Indian child in any State court, the parent may withdraw 
consent thereto upon the grounds that consent was obtained 
through fraud or duress and may petition the court to vacate 
such decree. Upon a finding that such consent was obtained 
through fraud or duress, the court shall vacate such decree and 
return the child to the parent. No adoption which has been 
effective for at least two years may be invalidated under the 
provisions of this subsection unless otherwise permitted under 
State law.]
  (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.
  (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.
  (e)(1) The Indian child's tribe shall have the right to 
intervene at any time in a voluntary child custody proceeding 
in a State court only if--
          (A) in the case of a voluntary proceeding to 
        terminate parental rights, the Indian tribe filed a 
        notice of intent to intervene or a written objection to 
        the termination, not later than 30 days after receiving 
        notice that was provided in accordance with the 
        requirements of subsections (c) and (d); or
          (B) in the case of a voluntary adoption proceeding, 
        the Indian tribe filed a notice of intent to intervene 
        or a written objection to the adoptive placement, not 
        later than the later of--
                  (i) 90 days after receiving notice of the 
                adoptive placement that was provided in 
                accordance with the requirements of subsections 
                (c) and (d); or
                  (ii) 30 days after receiving a notice of the 
                voluntary adoption proceeding that was provided 
                in accordance with the requirements of 
                subsections (c) and (d).
  (2)(A) Except as provided in subparagraph (B), the Indian 
child's tribe shall have the right to intervene at any time in 
a voluntary child custody proceeding in a State court in any 
case in which the Indian tribe did not receive written notice 
provided in accordance with the requirements of subsections (c) 
and (d).
  (B) An Indian tribe may not intervene in any voluntary child 
custody proceeding in a State court if the Indian tribe gives 
written notice to the State court or any party involved of--
          (i) the intent of the Indian tribe not to intervene 
        in the proceeding; or
          (ii) the determination by the Indian tribe that--
                  (I) the child involved is not a member of, or 
                is not eligible for membership in, the Indian 
                tribe; or
                  (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, as part of an adoption 
        decree of an Indian child, an agreement that states 
        that a birth parent, an extended family member, or the 
        Indian child's tribe shall have an enforceable right of 
        visitation or continued contact with the Indian child 
        after the entry of a final decree of adoption; and
          (2) the failure to comply with any provision of a 
        court order concerning the continued visitation or 
        contact referred to in paragraph (1) shall not be 
        considered to be grounds for setting aside a final 
        decree of adoption.
          * * * * * * *

SEC. 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--
          (1) knowingly and willfully 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.
          * * * * * * *
                     DEMOCRATIC SUPPLEMENTAL VIEWS

    We report these supplemental views on H.R. 3828, the Indian 
Child Welfare Act Amendments of 1996, a bill that reflects a 
carefully crafted compromise between the interests of Indian 
tribes seeking to protect their culture and heritage and the 
interests of non-Indians seeking greater clarity and security 
in the implementation of the Indian Child Welfare Act of 1978.
    This legislation is the result of heightened activity in 
this Congress catalyzed by several high-profile adoption cases 
involving the adoption of Indian children. These cases, 
involving lengthy disputes under the Indian Child Welfare Act, 
focused our attention on whether the Act fairly, and to the 
greatest degree possible, took into account the best interests 
of the children, the parents, and the tribes.
    Spurred on by these cases, Congress first took up H.R. 
1448, then H.R. 3275, and finally Title III of H.R. 3286, the 
Adoption Promotion and Stability Act of 1996, each of which 
would have amended the Indian Child Welfare Act to severely 
limit its scope and the protections it affords Indian children, 
parents and tribes. These provisions, we note, were drafted 
without any input whatsoever by any of the affected American 
Indian and Alaska Native tribes or by members of this Committee 
which has considerable experience and expertise in Indian 
affairs. Although this Committee on a bipartisan basis voted 
overwhelmingly to reject the provisions in Title III of H.R. 
3286, the Title's sponsors successfully incorporated these 
amendments back into H.R. 3286 in the Rules Committee and 
efforts to redelete Title III failed by a narrow margin (195-
212) on the House floor in May of this year.
    Following this narrow and highly contested vote, the 
Chairman and Senior Democratic Member of this Committee 
immediately initiated discussions with Indian tribes to lay the 
foundation for compromise legislation. These discussions, in 
turn, were helpful to the tribes who met in Tulsa, Oklahoma in 
June of this year to prepare a consensus draft of legislation 
that would not only protect the interests of Indian children, 
parents, and tribes but squarely address the legitimate 
concerns of non-Indian parents, adoption organizations, and the 
authors of Title III of H.R. 3286.
    The consensus tribal draft, in turn, served as the basis 
for this bill. This bill is intended to strengthen the Act, to 
protect the lives and future of Indian children first and 
foremost. This bill was crafted not only with the input of the 
tribes but also with the input of the attorney for the Rost 
family, whose well-publicized case was one of the adoption 
cases that sparked this debate. We understand that to a few 
parties on either side of the debate this bill may not seem 
perfect. Few compromises are. But what this bill does is truly 
important. This bill helps Indian children by providing 
allowing adoptions to move forward quickly and with greater 
certainty. This bill places limitations on when Indian tribes 
and families may intervene in the adoption process. Yet at the 
same time, this bill protects the fundamental rights of tribal 
sovereignty. Tribes, for the first time, will be entitled to 
receive notice when a voluntary child custody proceeding is 
underway. The point is that this bill places the interests of 
Indian children above all else, first by ensuring that they 
will have as equal a chance as any other children at having a 
loving family and a home and second, by protecting their 
interests in their own culture and heritage.
    In order to better understand the nature of this bill and 
the underlying Act, we set forth the following background.\1\
---------------------------------------------------------------------------
    \1\ We would like to acknowledge the invaluable information 
forwarded to this Committee by Indian tribes and tribal organizations, 
including the National Indian Child Welfare Association.
---------------------------------------------------------------------------

Indian children and Federal policy

    In 1819, the United States Government established the 
Civilization Fund, the first federal policy to directly affect 
Indian children. It provided grants to private agencies, 
primarily churches, to establish programs to ``civilize the 
Indian.'' In a report to Congress in 1867, the commissioner of 
Indian services declared that the only successful way to deal 
with the ``Indian problem'' was to separate the Indian children 
completely from their tribes. In support of this policy, both 
the government and private institutions developed large mission 
boarding schools for Indian children that were characterized by 
military type discipline. Many of these institutions housed 
more than a thousand students ranging in age from three to 
thirteen. Throughout the remainder of the nineteenth century, 
boarding schools became more oppressive; in 1880, for instance, 
a written federal policy made it illegal to use any native 
language in a federal boarding school. In 1910, bonuses were 
used to encourage boarding school workers to take leave of 
absence and secure as many students as possible from 
surrounding reservations. These ``kids snatchers'' received no 
guidelines regarding the means they could use.
    Congress attempted to address this situation by declaring: 
``And it shall be unlawful for any Indian agent or other 
employee to induce, by withholding rations or by other improper 
means, the parents or next of kin of any Indian child to 
consent to the removal of any Indian child beyond the limits of 
any reservation.'' (Robert H. Bremmer, ``Children and Youth in 
America: A Documentary History,'' Vol. 1, Cambridge, 
Massachusetts: Harvard University Press, 1970). Despite this 
Congressional directive, the Indian boarding schools continued 
to flourish. In addition to boarding schools, other federal 
practices encouraged moving Indian children away from their 
families and communities. In 1884, the ``placing out'' system 
placed numerous Indian children on farms in the East and 
Midwest in order to learn the ``values of work and the benefits 
of civilization.''
    Federal policy continued throughout the twentieth century 
with assimilation being the key focus in the boarding schools 
up until the 1950s. The passage of Public Law 83-280 in 1953 
represented the culmination of almost a century old federal 
policy of assimilation. Its ultimate goal was to terminate the 
very existence of all Indian tribes. This ultimate assimilation 
policy was reflected in the child welfare policies of this 
period.
    Throughout the 1950 and 1960s, the adoption of Indian 
children into non-Indian homes, primarily within the private 
sector, was widespread. In 1959, the Child Welfare League of 
America, the standard-setting body for child welfare agencies, 
in cooperation with the Bureau of Indian Affairs, initiated the 
Indian Adoption Project. The Indian Adoption Project was 
premised on the view that Indian children were better cared for 
in non-Indian homes. In the first year of this project, 395 
Indian children were placed for adoption with non-Indian 
families in eastern metropolitan areas.
    Little attention was paid, either by the Bureau of Indian 
Affairs or the states, to providing services on reservations 
that would strengthen and maintain Indian families. As late as 
1972, David Fanshel wrote in ``Far From the Reservation: The 
Transracial Adoption of American Indian Children'' (Metchen, 
New Jersey: The Scarecrow Press, 1972) that the practice of 
removing Indian children from their homes and placing them in 
non-Indian homes for adoption was a desirable option. Fanshel 
points out in the same book, however, that the removal of 
Indian children from their families and communities may well be 
seen as the ``ultimate indignity to endure.''
    In a response to the overwhelming evidence from Indian 
communities that the loss of their children meant the 
destruction of Indian culture, Congress passed the Indian Child 
Welfare Act of 1978.

The Indian Child Welfare Act

    The Indian Child Welfare Act was enacted in 1978 in 
response to the wide-spread removal of Indian children from 
Indian families and placement with non-Indian families or 
institutions. Prior to ICWA, Committee hearings yielded 
information which demonstrated that between 1969 and 1974, 25% 
to 35% of all Indian children had been separated from their 
families and placed in adoptive families, foster care, or 
institutions. H.R. Rep. No. 1386, 95th Cong., 2d Sess. 9 
(hereinafter 1978 House Report); see also Mississippi Band of 
Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). This 
Committee's 1978 report acknowledged that ``[t]he wholesale 
separation of Indian children from their families is perhaps 
the most tragic and destructive aspect of American Indian life 
today.'' 1978 House Report at 9.
    In 1978, Chief Calvin Isaac of the Mississippi Band of 
Choctaw Indians testified at hearings before the Interior and 
Insular Affairs Subcommittee on Indian Affairs and Public Lands 
about the cause for the large removal of Indian children:

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

    Hearing on S. 1214, 95th Congress, 2d. Sess. (1978), at 
191-92. Removal of Indian children from Indian families led not 
only to social harm to the Indian parents and adopted, but also 
to harm to the tribes who were essentially losing their own 
members. Again, Chief Isaac testified that:

          Culturally, the changes of Indian survival are 
        significantly reduced if our children, the only real 
        means for the transmission of the tribal heritage, are 
        to be raised in non-Indian homes and denied exposure to 
        the ways of their People. Furthermore, these practices 
        seriously undercut the tribes' ability to continue as 
        self-governing communities.--Id. at 193.

    Congress after careful contemplation enacted the Act to 
address these concerns, declaring that ``it is the policy of 
this Nation to protect the best interests of Indian children 
and to promote the stability and security of Indian tribes and 
families by the establishment of minimum Federal standards for 
the removal of Indian children from their families * * *.'' 25 
U.S.C. Sec. 1902. 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 * * *.'' 25 
U.S.C. Sec. 1901(2), (3).
    We emphasize that Congress enacted the Act 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 the nature of 
these interests, quoting a lower court:

          The protection of this tribal interest is at the core 
        ICWA, which recognizes that the tribe has an interest 
        in the child which is distinct by on a parity with the 
        interest of the parents.--Holyfield, 490 U.S. at 52 
        (quoting In re Adoption of Holloway, 732 P.2d 962, 969-
        70 (Utah 1986)).

    The Act, designed to protect Indian families, and thus the 
integrity of Indian tribes and culture, has two primary 
provisions:
    (1) It sets up requirements and standards for child-placing 
agencies to follow in the placement of Indian children, and 
requires, among other things:
          Provision of remedial, culturally appropriate 
        services for Indian families before a placement occurs;
          Notification of tribes regarding the placement of 
        Indian children;
          When placement must occur, it requires that children 
        be preferentially placed in Indian homes.
    (2) The Act also provides tribes with the ability to 
intervene in child custody proceedings. It recognized existing 
Indian tribal authority on the reservation and extended that 
authority to non-reservation Indian children through transfer 
of jurisdiction provisions.
    A result of the Act has been the development and 
implementation of tribal juvenile codes, juvenile courts tribal 
standards, and child welfare services. Today, almost every 
Indian tribe provides child welfare services to their own 
children.
    Recent studies indicate that the Act has had a positive 
effect in redressing the wrongs caused by the removal of Indian 
children from their families. In 1978, Congress found evidence 
that state courts and child welfare workers placed over ninety 
percent of adopted American Indian children in non-Indian 
homes. Sixteen years later, studies indicate that less than 
sixty percent are adopted by non-Indians. Note, When Judicial 
Flexibility Becomes Abuse of Discretion: Eliminating the Good 
Cause Exception in Indian Child Welfare Act Adoptive 
Placements, 79 Minn. L. Rev. 1167, 1167-68 (1995). A 1987 
report revealed an overall reduction in foster care placement 
in the early 1980s after enactment of the Act. See Note, The 
Best Interests of Indian Children in Minnesota, 17 American 
Indian L. Rev. 237, 246-47 (1992). A 1988 report indicated that 
the Act had motivated courts and agencies to place greater 
numbers of Indian children into Indian homes. Id.
    In other words, the Act is starting to work well. Indian 
children have been placed in loving homes and the removal of 
children from their culture has diminished. Unlike other 
minority cases, there is no shortage of families willing to 
adopt Indian children. Less than one-half of one-tenth of all 
Indian adoption cases since passage of the Act have caused 
problems.
    Recognizing the precious resource that Indian children are, 
the Act gives tribal governments the right to have a voice in 
child custody proceedings involving their own members as a 
means of fulfilling the obligations they have to both their 
families and to their communities. The law allows for concerned 
Indian relatives to intervene in adoption and foster care cases 
involving an Indian child and in certain instances to ask the 
court to transfer proceedings to tribal courts.
    Although the law gives tribes the right to play a role in 
all cases involving their own children, unfortunately, the law 
does not always require that the parents, their attorneys, or 
adoption agencies notify the courts or the tribe when such a 
case is pending. The problem is that some in the adoption 
profession fear that by notifying the courts that an Indian 
child is involved in an adoption proceeding, they either will 
bog down the proceedings or scare off potential adoptive 
parents. Often, the tribes are given no notification while 
parties to the adoption are encouraged to conceal the child's 
Indian identity, causing the number of cases where the intent 
of the law has been skirted to multiply rapidly. The 
consequences of this noncompliance can lead to emotionally 
troubling results for everyone involved.
    The bill that we have introduced corrects these problems.

Short description of H.R. 3828

    The bill's has a number of major provisions intended to 
provide greater certainty and clarity in Indian child custody 
cases.
    The bill would provide Indian tribes with notice of 
voluntary adoption proceedings. Currently, the Act requires 
that tribes receive notice of involuntary proceedings but not 
voluntary proceedings. The bill would also limit when and how 
Indian tribes and families can intervene in Indian adoption 
cases. Tribes would only be permitted to intervene (1) within 
30 days of notification of a termination of parental rights 
proceeding, (2) within 90 days of notification of an adoptive 
placement, or (3) within 30 days of notification of an adoptive 
proceeding. A tribal waiver of its right to intervene will be 
considered final. Furthermore, a tribe seeking to intervene 
must provide a certification that the Indian child is, or is 
eligible to become, a member of the tribe. The bill would also 
limit the period of time within which Indian birth parents can 
withdraw their consent to adoption or termination of parental 
rights. A birth parent can only withdraw consent to adoption up 
to 30 days after commencement of adoption proceedings, up to 
six months after notification to the tribe if no proceedings 
have begun, or up to the entry of a final adoption order, 
whichever comes first. The bill also encourages tribes and 
adoptive families to enter into voluntary open adoptions and 
visitation arrangements and authorizes such arrangements in 
states that prohibit such arrangements. Finally, the bill 
applies penalties for fraud and misrepresentation by applying 
criminal sanctions to persons, other than birth parents, who 
attempt to hide the fact that an Indian child is the subject of 
a child custody proceeding or that one of the child's parents 
is an Indian.
    We believe that these provisions are fair and will 
encourage, not prevent, the placement of Indians in caring 
homes and families.

Conclusion

    Some have tried to blame the few but well-publicized 
failures on the Indians, some have concluded that rolling back 
the ICWA is necessary to prevent future miscarriages of 
justice, and some have even asserted that they are doing it 
with the best interests of the Indians at heart. But Indian 
people have heard claims like these all too many times before. 
We understand how hard it must be for them to live with this 
rhetoric, especially when the stakes are so high. We must bear 
in mind that from an Indian perspective, it is the very future 
of their people and their culture that is at stake.
    It is time for non-Indians to understand that Indian 
families are not necessarily opposed to other people raising 
their children and giving them loving homes. But it is even 
more critical that they understand that Indian people must have 
a voice in these adoptions and that their voices be heard for 
the good of everyone. Although we in Congress are often the 
first to prescribe what is best for American Indians, we 
usually fail in our attempts to deliver on our promises, 
largely due to our unwillingness to listen to the very people 
we're trying to help. We have listened to the tribes and to the 
families this time and we believe that H.R. 3828 is a fair and 
balanced approach that can bring peoples and cultures together, 
not divide them apart.

                                   George Miller.
                                   Tim Johnson.
                                   Dale E. Kildee.
                                   Patrick J. Kennedy.
                                   Eni Faleomavaega.
                                   Bill Richardson.
                                   Neil Abercrombie.
                            A P P E N D I X

                              ----------                              

                          House of Representatives,
                                Committee on the Judiciary,
                                Washington, DC, September 18, 1996.
Hon. Newt Gingrich,
The Speaker,
House of Representatives, Washington, DC.
    Dear Mr. Speaker: I am writing to you regarding the 
``Indian Child Welfare Act Amendments of 1996'' (H.R. 3828) 
which has already been reported by the Committee on Resources.
    As reported, H.R. 3828 contains language with Rule X 
jurisdiction of the Committee on the Judiciary. Specifically, 
the bill contains provisions that apply criminal penalties for 
fraudulent representations in adoption/child custody 
proceedings involving Indian children.
    The Committee does not intend to mark up H.R. 3828, and 
will forego its right to a sequential referral in this 
instance. However, this does not in any way waive jurisdiction 
over any subject matter contained in H.R. 3828 impacting our 
jurisdiction. Furthermore, I request that should a conference 
with the Senate be necessary on H.R. 3828, that members of the 
House Committee on the Judiciary be appointed to the conference 
committee.
    Your courtesy and consideration on this matter is 
appreciated.
            Sincerely,
                                           Henry J. Hyde, Chairman.
                                ------                                

                          House of Representatives,
                                    Committee on Resources,
                                Washington, DC, September 19, 1996.
Hon. Henry Hyde,
Chairman, Committee on the Judiciary, Rayburn House Office Building, 
        Washington, DC.
    Dear Henry: Thank you for agreeing to waive your 
Committee's sequential referral of H.R. 3828, the Indian Child 
Welfare Act Amendments of 1996. This bill is personally very 
important to me and I deeply appreciate your cooperation.
    I hope to bring this measure to the Floor under suspension 
of the rules next week and would be happy to yield time to you 
or any of your members during debate.
    Thank you again for your assistance.
            Sincerely,
                                               Don Young, Chairman.