[Senate Report 104-335]
[From the U.S. Government Publishing Office]
104th Congress Report
SENATE
2d Session 104-335
_______________________________________________________________________
TO AMEND THE INDIAN CHILD WELFARE ACT OF 1978, AND FOR OTHER PURPOSES
_______
July 26, 1996.--Ordered to be printed
_______________________________________________________________________
Mr. McCain, from the Committee on Indian Affairs, submitted the
following
R E P O R T
[To accompany S. 1962]
The Committee on Indian Affairs, to which was referred the
bill (S. 1962) to amend the Indian Child Welfare Act of 1978,
and for other purposes, having considered the same, reports
favorably thereon without amendment and recommends that the
bill do pass.
Report
The text of the bill follows:
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
SECTION 1. SHORT TITLE; REFERENCES.
(a) Short Title.--This Act may be cited as the ``Indian Child
Welfare Act Amendments of 1996''.
(b) References.--Whenever in this Act an amendment or repeal
is expressed in terms of an amendment to or repeal of a section
or other provision, the reference shall be considered to be
made to a section or other provision of the Indian Child
Welfare Act of 1978 (25 U.S.C. 1901 et seq.).
SEC. 2. EXCLUSIVE JURISDICTION.
Section 101(a) (25 U.S.C. 1911(a)) is amended--
(1) by inserting ``(1)'' after ``(a)''; and
(2) by striking the last sentence and inserting the
following:
``(2) An Indian tribe shall retain exclusive jurisdiction
over any child custody proceeding that involves an Indian
child, notwithstanding any subsequent change in the residence
or domicile of the Indian child, in any case in which the
Indian child--
``(A) resides or is domiciled within the reservation
of the Indian tribe and is made a ward of a tribal
court of that Indian tribe; or
``(B) after a transfer of jurisdiction is carried out
under subsection (b), becomes a ward of a tribal court
of that Indian tribe.''.
SEC. 3. INTERVENTION IN STATE COURT PROCEEDINGS.
Section 101(c) (25 U.S.C. 1911(c)) is amended by striking
``In any State court proceeding'' and inserting ``Except as
provided in section 103(e), in any State court proceeding''.
SEC. 4. VOLUNTARY TERMINATION OF PARENTAL RIGHTS.
Section 103(a) (25 U.S.C. 1913(a)) is amended--
(1) by inserting ``(1)'' before ``Where'';
(2) by striking ``foster care placement'' and
inserting ``foster care or preadoptive or adoptive
placement'';
(3) by striking ``judge's certificate that the
terms'' and inserting the following: ``judge's
certificate that--
``(A) the terms'';
(4) by striking ``or Indian custodian.'' and
inserting ``or Indian custodian; and'';
(5) by inserting after subparagraph (A), as
designated by paragraph (3) of this subsection, the
following new subparagraph:
``(B) any attorney or public or private agency that
facilitates the voluntary termination of parental
rights or preadoptive or adoptive placement has
informed the natural parents of the placement options
with respect to the child involved, has informed those
parents of the applicable provisions of this Act, and
has certified that the natural parents will be notified
within 10 days of any change in the adoptive
placement.'';
(6) by striking ``The court shall also certify'' and
inserting the following:
``(2) The court shall also certify'';
(7) by striking ``Any consent given prior to,'' and
inserting the following:
``(3) Any consent given prior to,''; and
(8) by adding at the end the following new paragraph:
``(4) An Indian custodian who has the legal authority to
consent to an adoptive placement shall be treated as a parent
for the purposes of the notice and consent to adoption
provisions of this Act.''.
SEC. 5. WITHDRAWAL OF CONSENT.
Section 103(b) (25 U.S.C. 1913(b)) is amended--
(1) by inserting ``(1)'' before ``Any''; and
(2) by adding at the end the following new
paragraphs:
``(2) Except as provided in paragraph (4), a consent to
adoption of an Indian child or voluntary termination of
parental rights to an Indian child may be revoked, only if--
``(A) no final decree of adoption has been entered;
and
``(B)(i) the adoptive placement specified by the
parent terminates; or
``(ii) the revocation occurs before the later of the
end of--
``(I) the 180-day period beginning on the
date on which the Indian child's tribe receives
written notice of the adoptive placement
provided in accordance with the requirements of
subsections (c) and (d); or
``(II) the 30-day period beginning on the
date on which the parent who revokes consent
receives notice of the commencement of the
adoption proceeding that includes an
explanation of the revocation period specified
in this subclause.
``(3) The Indian child with respect to whom a revocation
under paragraph (2) is made shall be returned to the parent who
revokes consent immediately upon an effective revocation under
that paragraph.
``(4) Subject to paragraph (6), if, by the end of the
applicable period determined under subclause (I) or (II) of
paragraph (2)(B)(ii), a consent to adoption or voluntary
termination of parental rights has not been revoked, beginning
after that date, a parent may revoke such a consent only--
``(A) pursuant to applicable State law; or
``(B) if the parent of the Indian child involved
petitions a court of competent jurisdiction, and the
court finds that the consent to adoption or voluntary
termination of parental rights was obtained through
fraud or duress.
``(5) Subject to paragraph (6), if a consent to adoption or
voluntary termination of parental rights is revoked under
paragraph (4)(B), with respect to the Indian child involved--
``(A) in a manner consistent with paragraph (3), the
child shall be returned immediately to the parent who
revokes consent; and
``(B) if a final decree of adoption has been entered,
that final decree shall be vacated.
``(6) Except as otherwise provided under applicable State
law, no adoption that has been in effect for a period longer
than or equal to 2 years may be invalidated under this
subsection.''.
SEC. 6. NOTICE TO INDIAN TRIBES.
Section 103(c) (25 U.S.C. 1913(c)) is amended to read as
follows:
``(c)(1) A party that seeks the voluntary placement of an
Indian child or the voluntary termination of the parental
rights of a parent of an Indian child shall provide written
notice of the placement or proceeding to the Indian child's
tribe. A notice under this subsection shall be sent by
registered mail (return receipt requested) to the Indian
child's tribe, not later than the applicable date specified in
paragraph (2) or (3).
``(2)(A) Except as provided in paragraph (3), notice shall be
provided under paragraph (1) in each of the following cases:
``(i) Not later than 100 days after any foster care
placement of an Indian child occurs.
``(ii) Not later than 5 days after any preadoptive or
adoptive placement of an Indian child.
``(iii) Not later than 10 days after the commencement
of any proceeding for a termination of parental rights
to an Indian child.
``(iv) Not later than 10 days after the commencement
of any adoption proceeding concerning an Indian child.
``(B) A notice described in subparagraph (A)(ii) may be
provided before the birth of an Indian child if a party
referred to in paragraph (1) contemplates a specific adoptive
or preadoptive placement.
``(3) If, after the expiration of the applicable period
specified in paragraph (2), a party referred to in paragraph
(1) discovers that the child involved may be an Indian child--
``(A) the party shall provide notice under paragraph
(1) not later than 10 days after the discovery; and
``(B) any applicable time limit specified in
subsection (e) shall apply to the notice provided under
subparagraph (A) only if the party referred to in
paragraph (1) has, on or before commencement of the
placement, made reasonable inquiry concerning whether
the child involved may be an Indian child.''.
SEC. 7. CONTENT OF NOTICE.
Section 103(d) (25 U.S.C. 1913(d)) is amended to read as
follows:
``(d) Each written notice provided under subsection (c) shall
contain the following:
``(1) The name of the Indian child involved, and the
actual or anticipated date and place of birth of the
Indian child.
``(2) A list containing the name, address, date of
birth, and (if applicable) the maiden name of each
Indian parent and grandparent of the Indian child, if--
``(A) known after inquiry of--
``(i) the birth parent placing the
child or relinquishing parental rights;
and
``(ii) the other birth parent (if
available); or
``(B) otherwise ascertainable through other
reasonable inquiry.
``(3) A list containing the name and address of each
known extended family member (if any), that has
priority in placement under section 105.
``(4) A statement of the reasons why the child
involved may be an Indian child.
``(5) The names and addresses of the parties involved
in any applicable proceeding in a State court.
``(6)(A) The name and address of the State court in
which a proceeding referred to in paragraph (5) is
pending, or will be filed; and
``(B) the date and time of any related court
proceeding that is scheduled as of the date on which
the notice is provided under this subsection.
``(7) If any, the tribal affiliation of the
prospective adoptive parents.
``(8) The name and address of any public or private
social service agency or adoption agency involved.
``(9) An identification of any Indian tribe with
respect to which the Indian child or parent may be a
member.
``(10) A statement that each Indian tribe identified
under paragraph (9) may have the right to intervene in
the proceeding referred to in paragraph (5).
``(11) An inquiry concerning whether the Indian tribe
that receives notice under subsection (c) intends to
intervene under subsection (e) or waive any such right
to intervention.
``(12) A statement that, if the Indian tribe that
receives notice under subsection (c) fails to respond
in accordance with subsection (e) by the applicable
date specified in that subsection, the right of that
Indian tribe to intervene in the proceeding involved
shall be considered to have been waived by that Indian
tribe.''.
SEC. 8. INTERVENTION BY INDIAN TRIBE.
Section 103 (25 U.S.C. 1913) is amended by adding at the end
the following new subsections:
``(e)(1) The Indian child's tribe shall have the right to
intervene at any time in a voluntary child custody proceeding
in a State court only if--
``(A) in the case of a voluntary proceeding to
terminate parental rights, the Indian tribe filed a
notice of intent to intervene or a written objection to
the termination, not later than 30 days after receiving
notice that was provided in accordance with the
requirements of subsections (c) and (d); or
``(B) in the case of a voluntary adoption proceeding,
the Indian tribe filed a notice of intent to intervene
or a written objection to the adoptive placement, not
later than the later of--
``(i) 90 days after receiving notice of the
adoptive placement that was provided in
accordance with the requirements of subsections
(c) and (d); or
``(ii) 30 days after receiving a notice of
the voluntary adoption proceeding that was
provided in accordance with the requirements of
subsections (c) and (d).
``(2)(A) Except as provided in subparagraph (B), the Indian
child's tribe shall have the right to intervene at any time in
a voluntary child custody proceeding in a State court in any
case in which the Indian tribe did not receive written notice
provided in accordance with the requirements of subsections (c)
and (d).
``(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. 9. FRAUDULENT REPRESENTATION.
Title I of the Indian Child Welfare Act of 1978 is amended by
adding at the end the following new section:
``SEC. 114. FRAUDULENT REPRESENTATION.
``(a) In General.--With respect to any proceeding subject to
this Act involving an Indian child or a child who may be
considered to be an Indian child for purposes of this Act, a
person, other than a birth parent of the child, shall, upon
conviction, be subject to a criminal sanction under subsection
(b) if that person--
``(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.''.
Purposes
The purpose of S. 1962 is to amend the Indian Child Welfare
Act to make the process that applies to voluntary Indian child
custody and adoption proceedings more fair, consistent and
certain, in order to further advance the best interests of
Indian children without eroding tribal sovereignty and the
fundamental principles of Federal-Indian law.
Background
Federal-Indian Child Welfare Policy
In 1978, the Congress enacted the Indian Child Welfare Act
(ICWA) in response to growing concerns about the consequences
of the decades-old practice of separating Indian children from
their Indian families and tribes through adoption or foster
care placement. The 95th Congress expressed concern over the
inordinately high number of placements of Indian children into
non-Indian homes and environments, concluding that ``[t]he
wholesale separation of Indian children from their families is
perhaps the most tragic aspect of American Indian life today.''
\1\ The 1977 Final Report of the American Indian Policy Review
Commission, established by the Congress to study and provide
recommendations on Federal-Indian policy, shared this
concern.\2\ Congressional oversight hearings in 1974, 1977 and
1978 documented many examples of wholesale removal of Indian
children from their families and homes. Studies conducted by
the Association of American Indian Affairs prior to enactment
of the ICWA revealed that 25 to 35 percent of all Indian
children had been separated from their families and placed into
adoptive families, foster care, or other institutions.\3\ In
certain States, the problem of public and private agencies
removing Indian children from homes was more widespread. For
example, in Minnesota from 1971 through 1972 nearly one in
every four Indian infants under the age of one year old was
placed for adoption. Over this same period, the adoption rate
of Indian children was five times that of non-Indian children
and approximately 90% of the placements involving Indian
children were with non-Indian families.\4\
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\1\ H. Rept. 95-1386, 2d Session, 1978, at page 9.
\2\ Final Report, May 17, 1977, American Indian Policy Review
Commission, pages 422, 423.
\3\ H. Rept. 95-1386, 2d Session, 1978, at page 9.
\4\ Id.
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Upon a review of the provisions of the ICWA and of its
legislative history, it is clear to the Committee that the 95th
Congress sought to address both the problems associated with
the involuntary removals of Indian children from their families
and tribal communities and placement of such children into both
foster care and adoptive settings, as well as the voluntary
adoptions of Indian children.\5\ As the United States Supreme
Court observed in Mississippi Band of Choctaw Indians v.
Holyfield, an Indian tribe and an Indian child have an interest
in maintaining ties independent of the interests of the birth
parents and, thus, ``Congress determined to subject such
[voluntary] placements to the ICWA's jurisdiction and other
provisions, even in cases where the parents consented to an
adoption, because of concerns going beyond the wishes of
individual parents.'' \6\
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\5\ See, e.g., 25 U.S.C. 1912.
\6\ Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30,
49-53 (1989).
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The 95th Congress found that the extraordinarily high rate
of involuntary and voluntary placements of Indian children with
non-Indian families was not in the best interests of Indian
tribes, Indian families and Indian children. As construed in
the Holyfield case, the ICWA is concerned with both the
``impact on the tribes themselves of the large numbers of
children adopted by non-Indians * * * [and] the detrimental
impact on the children themselves of such placements outside
their culture.'' \7\
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\7\ Id., at 49-50.
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Several witnesses in hearings before the Senate and House
Committees held prior to enactment of the ICWA testified about
the serious adjustment problems encountered by many adopted
Indian children as they reached adolescence in non-Indian
homes. For example, the American Academy of Child Psychiatry
testified that:
There is much clinical evidence to suggest that these
Native American children placed in off-reservation non-
Indian homes are at risk in their later development.
Often enough they are cared for by devoted and well
intentioned foster or adoptive parents. Nonetheless,
particularly in adolescence, they are subject to ethnic
confusion and a pervasive sense of abandonment with its
attendant multiple ramifications.\8\
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\8\ Hearings on Indian Child Welfare before the Senate Subcommittee
on Indian Affairs, 95th Cong., 1st Session (1977) at 114.
The Congress also received compelling evidence prior to
enactment of the ICWA concerning the impact of the large
numbers of placements upon Indian tribes. For example, Chief
Calvin Isaac of the Mississippi Band of Choctaw Indians
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testified that:
Culturally, the chances of Indian survival are
significantly reduced if our children, the only real
means for the transmission of the tribal heritage, are
to be raised in non-Indian homes and denied exposure to
the ways of their People. Furthermore, these practices
seriously undercut the tribes' ability to continue as
self-governing communities. Probably in no area is it
more important that tribal sovereignty be respected
than in an area as socially and culturally
determinative as family relationships.\9\
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\9\ Hearings on S. 1214 before the Subcommittee on Indian Affairs
and Public Lands of the House Committee on Interior and Insular
Affairs, 95th Cong. 2d. Sess. (1978) at 193.
In addition, the 95th Congress received considerable
testimony on the importance of the extended family in Indian
culture. As the House Interior and Insular Affairs Committee
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explained in its report accompanying the bill:
[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. *
* * The concept of the extended family maintains its
vitality and strength in the Indian community. By
custom and tradition, if not necessity, members of the
extended family have definite responsibilities and
duties in assisting in childrearing.\10\
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\10\ H. Rept. 95-1386, 2d. Sess., 1978 at pages 10, 20.
The 95th Congress determined that much of the
responsibility for the Indian child welfare crisis that was
undermining Indian tribes and families, and that was working
against the best interests of Indian children, rested with the
policies and practices of State agencies and courts. Congress
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found that--
the States, exercising their recognized jurisdiction
over Indian child custody proceedings through
administrative and judicial bodies, have often failed
to recognize the essential tribal relations of Indian
people and the cultural and social standards prevailing
in Indian communities and families.\11\
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\11\ 25 U.S.C. 1901(5).
This treatment of Indian children under State law persisted
prior to the enactment of the ICWA despite the existence of
well-settled principles of Federal law which generally
established that the primary authority in matters involving the
relationship of an Indian child to his or her parents or
extended family was the Indian child's tribe. Years after the
enactment of the ICWA, the United States Supreme Court in
Holyfield recognized that ``[t]ribal jurisdiction over Indian
child custody proceedings is not a novelty of the ICWA.'' \12\
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\12\ Mississippi Band of Choctaw Indians v. Holyfield, supra, 490
U.S. at 42.
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Thus, in recognition of the best interests of Indian
children and the parens patriae interest of Indian tribes in
the welfare of their children, the Congress in 1978 carefully
crafted the ICWA to protect the important role traditionally
played by an Indian tribe and the extended family in child
welfare, with a focus upon State court proceedings involving
off-reservation Indian children, as well as children resident
and domiciled on an Indian reservation. As explained by the
United States Supreme Court:
At the heart of the ICWA are its provisions
concerning jurisdiction over Indian child custody
proceedings. Section 1911 lays out a dual
jurisdictional scheme. Section 1911(a) establishes
exclusive jurisdiction in the tribal courts for
proceedings concerning an Indian child ``who resides or
is domiciled within the reservation of such tribe,'' as
well as for wards of tribal courts regardless of
domicile. Section 1911(b), on the other hand, creates
concurrent but presumptively tribal jurisdiction in the
case of children not domiciled on the reservation; on
petition of either parent or tribe, State-court
proceedings for foster care placement or termination of
parental rights are to be transferred to the tribal
court, except in cases of ``good cause,'' objection by
either parent, or declination of jurisdiction by the
tribal court.\13\
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\13\ Id. at 36.
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APPLICATION OF THE PROCEDURAL REQUIREMENTS OF THE INDIAN CHILD WELFARE
ACT
Under the ICWA, State courts must accord tribal court
judgments full faith and credit.\14\ The Act establishes
various procedural safeguards applicable to State Indian child
custody proceedings that protect Indian families and children
and ensure adequate tribal involvement in those proceedings.
Thus, an Indian tribe may intervene in any State court child
custody proceedings involving children who are members or
eligible for membership in the Indian tribe.\15\ An Indian
tribe must receive notice of any State court involuntary
proceedings involving such children \16\ and has the right to
raise a challenge to State placements that do not conform to
the Act's requirements.\17\ An Indian tribe may establish
tribal placement preferences which are to be recognized by
State courts as a matter of Federal law.\18\ An Indian tribe
has the right to obtain State records pertaining to the
placement of Indian children \19\ and is authorized to enter
into agreements with States with regard to the care and custody
of Indian children and the jurisdiction over child custody
proceedings.\20\
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\14\ 25 U.S.C. 1911(d).
\15\ 25 U.S.C. 1911(c).
\16\ 25 U.S.C. 1912(a).
\17\ 25 U.S.C. 1914.
\18\ 25 U.S.C. 1915(c).
\19\ 25 U.S.C. 1915(e).
\20\ 25 U.S.C. 1919.
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Indian families are protected by provisions which establish
substantive standards for involuntary foster care placement of
an Indian child or termination of an Indian parent's parental
rights,\21\ provisions which require that foster care and
adoptive placements of Indian children under State law be made
preferentially with the child's extended family,\22\ and a
requirement that the cultural and social standards of the
Indian community be applied by the State court when it applies
the placement preferences.\23\
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\21\ 25 U.S.C. 1912(e) and (f).
\22\ 25 U.S.C. 1915(a) and (b).
\23\ 25 U.S.C. 1915(d).
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In the context of voluntary proceedings, the ICWA
specifically prohibits relinquishment of an Indian child for
adoption for at least ten days after birth. Moreover, parental
consents must be executed before a court of competent
jurisdiction. Any court considering a voluntary consent to the
termination of parental rights must determine that the
consequences of the consent ``were fully understood by the
parent or Indian custodian'', including, if necessary, the use
of an interpreter to explain the consequences of the consent in
the parent's native language.\24\
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\24\ 25 U.S.C. 1913(a).
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IMPLEMENTATION OF THE INDIAN CHILD WELFARE ACT
Although implementation of the ICWA has been less than
perfect, resulting in some outcomes that appear from a distance
to be unreasonable, in the vast majority of cases the ICWA has
provided vital protection to Indian children, families and
Indian tribes. The ICWA has clarified and formalized the
authority and role of Indian tribes in the Indian child welfare
process under Federal law. It has compelled greater efforts and
more painstaking analysis by State and private agencies and
State courts before removing Indian children from their homes
and communities. It has provided procedural protections to
Indian tribes and families to prevent arbitrary removals of
their children. It has required recognition by State and
private agencies and State courts alike that an Indian child
has a vital interest in retaining a connection with his or her
Indian tribe. As the United States Supreme Court noted in
Holyfield, ``[t]he Act is based on the fundamental assumption
that it is in the Indian child's best interest that its
relationship to the tribe be protected.'' \25\
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\25\ Mississippi Band of Choctaw Indians v. Holyfield, supra, 490
U.S. at 50.
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Each year thousands of child custody and adoption
proceedings take place in which the ICWA is applied without
remarkable incident. Nonetheless, particularly in the voluntary
adoption context, there have been occasional, high-profile
cases which have resulted in lengthy, protracted litigation
causing great anguish for the children, their adoptive
families, their birth families, and their Indian tribes.
DESCRIPTION OF THE ``TULSA'' COMPROMISE AGREEMENT
Origins of the Bill
S. 1962 is the product of the year-long efforts of several
representatives of the adoption community and of Indian tribal
governments who jointly developed compromise amendments to the
ICWA. Their effort was to identify changes that would address
some problems with the implementation of the ICWA that would be
acceptable to both adoption advocates and Indian tribes. The
Committee was briefed in late 1995 and early 1996 by
representatives of those participating in the compromise
negotiations and these representatives were encouraged to
circulate drafts to Indian tribes and the adoption community
for review. Both the National Indian Child Welfare Association
(NICWA) and the National Congress of American Indians (NCAI)
were actively involved in these efforts, as were
representatives of the American Academy of Adoption Attorneys
(AAAA) and the Academy of California Adoption Attorneys (ACAA).
In early June, 1996, at the mid-year convention of the NCAI at
Tulsa, Oklahoma, tribal delegates labored at length and in good
faith to refine the compromise amendments. After the
convention, a tribally-sanctioned committee worked with
adoption attorneys to fine-tune the ``Tulsa'' compromise
language. Representatives of both the Indian tribes and the
adoption community have confirmed that S. 1962 is within the
parameters of, and is consistent with, the ``Tulsa'' compromise
agreement.
S. 1962 would achieve greater certainty and speed through
new guarantees of early and effective notice in all cases
involving Indian children combined with new, strict time
restrictions placed on both the right of Indian tribes and
families to intervene and the right of Indian birth parents to
revoke their consent to an adoptive placement. S. 1962 would
encourage early identification of the relatively few cases
involving controversy, and promote settlement of cases by
making visitation agreements enforceable.
Limitations on when and how an Indian tribe may intervene
25 U.S.C. 1911(c) and 1913(e) would be substantially
amended to curtail the present right of an Indian tribe to
intervene ``at any point in the proceeding.'' Under S. 1962,
this right of intervention could be exercised only within the
following periods of time: within 30 days of receipt of notice
of a termination of parental rights proceeding, or within the
later of 90 days of receipt of notice of an adoptive placement
or 30 days of receipt of notice of a voluntary adoption
proceeding. With proper notice, an Indian tribe's failure to
act within these time frames early in the placement proceedings
is final. An Indian tribe's waiver of its right to intervene is
binding. If an Indian tribe seeks to intervene, it must
accompany its motion with a certification that the child at
issue is, or is eligible to be, a member of the tribe and
provide documentation of this pursuant to tribal law.
Limitations on when an Indian birth parent may withdraw his or her
consent to adoption or termination of parental rights
25 U.S.C. 1913(b) would be substantially amended by S. 1962
to curtail the present right of an Indian birth parent to
withdraw his or her consent to an adoption placement or
termination of parental rights at any time prior to entry of a
final decree. Under S. 1962 such consent could be withdrawn
before a final decree of adoption has been entered only if the
adoptive placement specified by the parent is terminated, or
before the end of the latter of the following two periods: 6
months after the Indian child's tribe received the required
notice or 30 days after the adoption proceeding began. An
Indian biological parent may otherwise revoke only under
applicable State law. In the case of fraud or duress, an Indian
birth parent may seek to invalidate an adoption up to two years
after the adoption has been in effect, or within a longer
period established by the applicable State law.
Requirement of early and effective notice and information to Indian
tribes
25 U.S.C. 1913 would be substantially amended by S. 1962 to
add a requirement for notice to be sent to the Indian child's
tribe by a party seeking to place or to effect a voluntary
termination of parental rights concerning a child reasonably
known to be an Indian. Such notice must be sent by registered
mail within 100 days following a foster care placement, within
five days following a pre-adoptive or adoptive placement, and
within 10 days of the commencement of a termination of parental
rights proceeding or adoption proceeding. S. 1962 would specify
the particular information that is to be provided. In addition,
25 U.S.C. 1913(a) would be amended by S. 1962 to require a
certification by the State court that the attorney or public or
private agency facilitating the voluntary termination of
parental rights or adoptive placement has informed the birth
parents of their placement options and of other provisions of
the ICWA and has certified that the birth parents will be
notified within 10 days of any change in the adoptive
placement.
Open adoption and enforceable visitation agreements encouraged between
Indians and non-Indians
25 U.S.C. 1913 would be amended by S. 1962 to encourage and
facilitate voluntary agreements between Indian families or
tribes and non-Indian adoptive families for enforceable rights
of visitation or continued contact after entry of an adoption
decree. This provision would have the effect of authorizing
such agreements where independent authority does not exist in
the law of a particular State. This should help encourage early
identification and settlement of controversial cases.
Penalties applied for fraud and misrepresentation
S. 1962 would apply criminal penalties to any efforts to
encourage or facilitate fraudulent representations or omissions
regarding whether a child or birth parent is an Indian for
purposes of the Act.
Miscellaneous
S. 1962 would clarify that the exclusive jurisdiction of
tribal courts under 25 U.S.C. 1911(a) continue once a child is
properly made a ward of that tribal court, regardless of any
subsequent change in residence or domicile of the child.
other considerations
On June 19, 1996, the committee struck the provisions of
Title III from H.R. 3286, the Adoption Promotion and Stability
Act of 1996, by a vote of 14 to 1 and ordered it reported with
the recommendation that the Senate pass the bill without the
provisions of Title III.\26\
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\26\ S. Rept. 104-288, 2d. Sess., 1996.
---------------------------------------------------------------------------
Title III would have undone much of the progress achieved
by the ICWA. The Committee struck Title III from H.R. 3286
because it had great potential for harm to Indian children, to
Indian families, and to fundamental principles of Federal-
tribal relations and tribal sovereignty. At the very least,
Title III would have caused an explosion of litigation and
disrupted tribal and State child welfare systems, thereby
delaying many permanent placements to the detriment of Indian
children.
At the core of Title III was a provision that would have
codified in Federal statutory law a version of the so-called
``existing Indian family exception'' doctrine that has been
created and applied in certain States by judges seeking to find
that the ICWA does not apply to a particular case. In striking
Title III, the Committee made clear its view that the
``existing Indian family exception'' doctrine is completely
contrary to the entire purpose of the ICWA. In contrast, the
ICWA recognizes that the Federal trust responsibility and the
role of Indian tribes as parens patriae extend to all Indian
children involved in all child custody proceedings. The
constitutional legitimacy of Indian-specific legislation has
long rested upon the basis of a political classification which
is unique to Indians and not upon a racial classification.\27\
It is a well settled principle in Federal-Indian law that
Indian tribes have the authority to define their membership and
that this authority is integral to the survival of tribes and
the exercise of their sovereignty as tribal governments. The
approach taken by the Title III provisions contradicts that
fundamental principle. As the United States Supreme Court has
explained:
---------------------------------------------------------------------------
\27\ See, e.g., Morton v. Mancari, 417 U.S. 535 (1974).
A tribe's right to define its own membership for
tribal purposes has long been recognized as central to
its existence as an independent political community.
Given the often vast gulf between tribal traditions and
those with which federal courts are more intimately
familiar, the judiciary should not rush to create
causes of action that would intrude on these delicate
matters. (citations omitted) \28\
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\28\ Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978).
When the ICWA was enacted, it is clear from the statute and
from the legislative history that the Congress intended to
reaffirm these principles and to provide for tribal involvement
with, and Federal protections for, all children defined by
their tribes as members or eligible for membership who are
involved in any child custody proceeding, regardless of their
individual circumstances. Moreover, this Committee's rejection
of Title III and its adoption of S. 1962 is continuing evidence
that the ICWA, as amended, is to be applied to all Indian
children in all child custody proceedings regardless of their
individual circumstances. Likewise, this Committee's rejection
of Title III and its adoption of S. 1962 should be construed as
a rejection of ``existing Indian family exception'' doctrine in
all of its manifestations.
SUMMARY OF THE PROVISIONS OF S. 1962, THE INDIAN CHILD WELFARE ACT
AMENDMENT OF 1996
Ward of the court
Section 2 adds a provision to 25 U.S.C. 1911(a) to clarify
that an Indian tribe retains exclusive jurisdiction over any
child made a ward of a tribal court if the child subsequently
changes residence and domicile. The Committee intends this
amendment to clarify that exclusive jurisdiction over a ward of
a tribal court occurs only if, at the time the wardship is
established, the child is a resident of or domiciled on an
Indian reservation or the proceeding has been transferred to
the tribal court pursuant to a valid State court transfer or
jurisdiction.
Tribal interventions in State court proceedings
Sections 3 and 8 provide new limitations on the right of an
Indian tribe to intervene in State court proceedings involving
Indian Children. Section 3 makes a conforming, technical
amendment which recognizes that tribal interventions in
voluntary proceedings under 25 U.S.C. 1911(c) will hereafter be
governed by the time limitations and other provisions set forth
in Section 8 of these amendments. The Committee intends Section
8 to limit the tribal right to intervene in adoption
proceedings by requiring the Indian tribe to either file a
notice of intent to intervene or send a written objection to a
proposed adoption to the party or the State court within 90
days of receiving notice of an adoptive placement or 30 days
after receiving notice of a voluntary adoption proceeding,
whichever is later, or the tribe's right to intervene will be
deemed waived. In the case of voluntary termination
proceedings, as distinguished from adoption proceedings, the
Indian tribe must take action within 30 days of having received
the requisite notice. The tribal right to intervene may also be
waived if the Indian tribe gives written notice of its intent
not to intervene or gives written notice that neither birth
parent is a member of the tribe or gives written notice that
the child is not a member of, and is not eligible for
membership in, the Indian tribe.
Under Section 8, an Indian tribe must simply make known its
intent to intervene or, in writing, its objection to the
termination of parental rights or the adoptive placement. The
Committee intends that where an Indian tribe sends notice or
written objection to the party seeking the adoption, but not to
the court, the party receiving such notice shall notify the
court that the tribe has preserved its right of intervention.
This is likely to occur in cases where a placement has been
made before a court proceeding has begun. The Committee has
designed these provisions to give prospective adoptive parents
confidence that they can go forward with an adoption after a
specified time period without later action by an Indian tribe
which may disrupt the adoption. Furthermore, the Committee
intends that these provisions will provide an Indian tribe with
a reasonable time period within which to become involved in the
placement of a child if the tribe believes this would be in the
best interest of the Indian child.
Section 8 also provides that if an adoptive placement
specified in the notice to the Indian tribe is changed at a
later date, the tribal right to intervene is restored even if
the time periods have lapsed. Such a change likely would be
extremely rare, but in these cases the Indian tribe's
involvement in the subsequent placement is just as important
for the best interests of the child as was its involvement in
the first placement. An Indian tribe must receive notice of
each adoptive, preadoptive or foster care family placement
within five days of when the placement is made. This
legislation will ensure that Indian tribes will receive
effective notice if an adoptive placement has ended. Finally,
if an Indian tribe does not receive notice which complies with
section 7 of these amendments, the Committee intends that the
Indian tribe will retain a right to intervene at any point in
the voluntary proceeding. The Committee recognizes that there
may be circumstances when a child's Indian identity is
discovered after the expiration of the time frames for notice
and tribal response, despite the fact that the facilitators of
an adoption made a reasonable inquiry concerning the Indian
identity of a child on or before the beginning of a placement.
In those circumstances, it is the Committee's intention that
notice be provided within 10 days of the discovery of a child's
Indian identity and that thereafter, the time frames for tribal
intervention outlined in section 8 will apply. If, however
there is evidence that a reasonable inquiry was not made
concerning the Indian identity of a child on or before the
beginning of a placement, the time limitations set forth in
section 8 on tribal intervention shall not apply.
The Committee intends that a waiver by an Indian tribe
under section 8 does not otherwise affect the applicability of
the Act to the Indian child and family, including application
of the placement preferences, and does not prevent any other
person from asserting any rights under the Act. The Committee
intends that the rights of the Indian child's extended family
or others to intervene, or otherwise be involved, are to be
left to existing laws and court rules on standing and are not
to be altered in any way by this legislation. \29\
---------------------------------------------------------------------------
\29\ See, e.g., E.A. v. State, 623 P.2d 1210 (Alaska Sup. Ct.
1981).
---------------------------------------------------------------------------
The Committee intends section 8 to also require that an
Indian tribe must include with any motion to intervene in a
voluntary proceeding, a certification that includes a statement
that documents the membership or eligibility for membership of
the Indian child. In recognition of long-standing and
fundamental principles of Federal Indian law, this section
recognizes that tribal determinations of membership under
tribal law are conclusive for the purpose of determining
whether a child is an Indian child subject to the ICWA and that
the ICWA is applicable to all Indian children who are the
subject of a voluntary placement or proceeding. By adding this
requirement, it is the Committee's intent to provide assurances
to other parties involved with Indian children that Indian
tribes will follow a specified set of rules based upon their
own membership requirements which they have established under
tribal law. Under the new subsection (e)(3), the Committee
intends this certification to be filed no later than when the
motion to intervene is filed. It need not necessarily be filed
when the Indian tribe files its written objection or notice of
intent to intervene. The term ``motion'' is not meant, however,
to suggest any particular procedure for intervention. The
Committee is aware that in many State courts, informal tribal
intervention has been permitted through letter, appearance of a
tribal social worker or otherwise. The Committee does not
intend in any way to discourage such informal procedures.
Rather the language of this subsection is simply meant to make
clear that the certification requirement attaches at the actual
time of intervention.
Finally, section 8 would allow State courts to enter
enforceable orders providing for visitation or continued
contact between Indian tribes, birth parents, extended Indian
family members, and an adopted child. These orders would arise
only in the context of a voluntary agreement entered into with
the adoptive family. The Committee anticipates that the
possibility of open adoption, as an option in all proceedings,
may facilitate harmonious placements of Indian children and
avoid conflict in some otherwise contentious situations. In a
number of States, courts currently have no authority to
recognize and enforce open adoption arrangements even where the
parties have reached an agreement. It is the Committee's
intention that this section authorize State courts to make
enforceable any type of post-adoption arrangement or specific
conditions that may be agreed to by the parties to a voluntary
adoptive proceeding.
Voluntary termination of parental rights
Section 4 clarifies that the existing provisions of the
ICWA which deal with the validation of parental consent before
a judge at least 10 days after birth applies to all adoptive,
preadoptive and foster care placements. In addition, the
Committee intends section 4 to require a judge to certify that
the birth parents have been informed of their placement options
and of their rights under the ICWA. Finally, the judge must
confirm that the adoption agency or attorney which facilitates
an adoption has certified that the birth parents will be
notified within ten days if an adoptive placement changes.
The Committee intends that the additional information
required by section 4 will increase the opportunity for birth
parents to fully consider their placement options at the very
beginning of the process and more fully understand their right
to revoke consent, the limitations placed upon that right to
revoke, the potential role of the Indian tribe, and the
application of the placement preference provisions in the Act.
Full information to birth parents, combined with notice to the
Indian child's tribe, should help ensure that a young,
vulnerable Indian parent has the balanced information available
which any person needs to make an informed decision. For
example, when only an adoption attorney or agency is involved
with a young parent considering adoption, there is a
substantial possibility that extended family options will not
be explored. The requirement in this section is designed to
ensure that all birth parents of Indian children who are
involved in a voluntary child custody proceeding understand the
multiple options available to them and that they are not
presented with only one placement option. Providing parents
with full information at the outset of the process should help
lessen the number of disputes which can arise later on in the
process because parents were unclear about their available
options when they placed the child for adoption.
Finally, the requirement in section 4 that the person or
agency facilitating the adoption notify a birth parent when the
adoptive placement ends is meant to ensure that the parent will
be able to exercise his or her right to revoke consent which is
guaranteed under these amendments in any circumstance where an
adoptive placement is terminated. In addition, the Committee
intends that an Indian custodian vested with legal authority to
consent to an adoptive placement be treated as a birth parent
for the purposes of the Act, including the requirements
governing notice provided or received and consent given or
revoked.
Withdrawal of parental consent
The Committee intends section 5 to clarify when a birth
parent can revoke consent to an adoption or voluntary
termination of parental rights before a final decree of
adoption has been entered by a court. The revocation period is
limited to six months after the Indian child's tribe receives
notice of the adoptive placement of the child, which notice
must be received within five days of the actual placement. The
revocation period is longer if the birth parent has not
received notice of the actual commencement of the legal
proceeding to finalize the adoption at least 30 days before the
end of that six month period. If the parent has not received
such notice, the period for revocation is extended until 30
days after receipt of notice by the parent. The parental right
to revoke is also extended if the child's adoptive placement is
changed from that which was proposed at the time of the
parent's consent. It should be noted that section 5 does not
alter the provisions of existing law which terminate, as of the
date of the final adoption decree, the parental right to revoke
consent if that adoption decree is finalized prior to the end
of the six month period. The only exception to this limitation
occurs when a birth parent can later show to the court that his
or her consent was obtained through fraud or duress, but such a
claim may be brought no later than two years after the final
decree of adoption is entered. Finally, the Committee intends
the time limits on parental withdrawal of consent to bring
consistency and certainty to the adoption process. Prospective
adoptive parents will know the time frames during which
parental consent can be revoked and need not fear disruption of
the adoption at some unknown point in the future.
Notice to Indian tribes
Section 6 requires notice to an Indian tribe of all
voluntary adoptive and preadoptive placements, all voluntary
termination of parental rights proceedings, all voluntary
adoption proceedings and all voluntary foster care placements
that exceed 100 days which involve a child defined under
current law as an Indian child for purposes of the Act (any
child who is a member of an Indian tribe or who may be eligible
for membership and is a child of a member of an Indian tribe).
Notice would be required within 5 days of an adoptive or pre-
adoptive placement and may be made earlier, even prior to
birth, if an adoptive or preadoptive placement is contemplated.
The Committee intends the language of the bill to permit a
single notice to be sent covering multiple activities--for
example, if an adoptive placement is made and an adoption
proceeding is commenced simultaneously, the Committee intends
that a single notice could be written and provided in such a
way as to meet the obligations of section 6 so long as such
notice meets the requirements of section 7. The Committee
intends that a notice will be sent within the specified time
frames each time one of the specified placements or proceedings
commences. If it is discovered that a child may be an Indian
child after the applicable notice periods have run, notice
under section 6 must be provided within 10 days of the
discovery that the child may be an Indian. If after a placement
the child's Indian identity is uncovered and the notice is
provided within 10 days of the discovery, there are no time
limitations placed upon tribal intervention following such a
late notice unless the party serving the notice can show to the
court that reasonable inquiry regarding whether the child may
be an Indian had been made at or prior to placement of the
child. With these provisions dealing with a belated discovery
that the child may be an Indian and that the adoption is thus
made subject to the requirements of the ICWA, the Committee
intends to provide prospective adoptive parents with some
protection from late intervention if they can show they made a
reasonable inquiry at or before the time the placement began as
to whether the child may be an Indian. Likewise, the Committee
intends these provisions to provide an Indian tribe with prompt
notice of the adoption placement and proceeding and some
opportunity to intervene within the time limitations applicable
under section 8.
The Committee has received ample testimony indicating that,
because the ICWA does not include a specific notice requirement
to Indian tribes in the case of voluntary adoptions, Indian
tribes frequently do not learn of the adoptive placements until
months and sometimes years after the placement has begun.
Particularly in the case of an off-reservation birth to an
unwed mother--which is frequently the circumstance in a
substantial portion of these cases--there may be a significant
delay in such information becoming known within the tribal
community. Thus, even where an Indian tribe acts promptly upon
obtaining the information, a situation may have developed where
the Indian child has already spent a significant amount of time
in that placement before the Indian tribe has any knowledge
with which it could act to become involved in the case in the
State court, whether through intervention in the proceeding,
submitting a request for future contact or visitation, or other
involvement. The Committee expects that, under the requirements
of the bill, providing Indian tribes with prompt notice in all
cases will greatly enhance the possibility that a prospective
adoptive parent will know before the initial placement begins,
or within a very short time thereafter, whether a member of the
Indian child's family or tribe has an interest in adopting the
child. The Committee intends the notice required under section
6 to help to ensure that the best interests of Indian children
are served by the provision of good and loving families while
at the same time ensuring that those best interests of the
children are not undermined by children being removed from
their families and tribes in cases where good and loving
placements are available within their families or tribal
communities.
Moreover, the Committee wishes to emphasize that an Indian
tribe has a parens patriae relationship with all children who
are members of the tribe or who are eligible for tribal
membership and who are children of tribal members. Off-
reservation children and parents, some of whom may be in a
precarious or unstable living situation and alienated from
their tribal community, are a uniquely vulnerable segment of
the American Indian and Alaska Native population and the ICWA
specifically recognizes the tribal interest in such individuals
and the benefit to these Indian families of tribal involvement.
Thus, the Committee has concluded that the best interests of
Indian children and families are served by early and full
notice to Indian tribes under the provisions of section 6.
Although Indian tribes do not currently receive notice of
voluntary proceedings in most States, several States have
explicitly recognized and successfully implemented a
requirement that similar notice be provided in voluntary
proceedings.\30\
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\30\ See, e.g., Wash. Rev. Code Ann. 13.34.245(3), (5);
26.33.090(2); 26.33.110(2); 26.33.240(1) (West Supp. 1989); Minn. Stat.
Ann. 257.352(2), (3); 257.353(2), (3) (West Supp. 1989); Okla. 10 O.S.
1991, section 40.1 (as amended in 1994); Mich. Court Rules 5.980(A).
---------------------------------------------------------------------------
Content of notice to Indian tribes
Section 7 requires that the notice provided to Indian
tribes must 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 about court proceedings pending in State court, if
any, and the parties in such proceedings. The notice must
inform the Indian tribe that it has the right to intervene in
the court proceeding and must inform the tribe as to what
actions or inactions by the tribe will lead to a waiver of the
tribal right to intervene.
Sanctions against fraudulent representation
Section 9 provides for criminal sanctions to be applied to
anyone who assists a person to lie about their Indian ancestry
or the ancestry of a child for the purposes of avoiding the
application of the ICWA. The Committee intends that these
sanctions will apply to any individual, other than a birth
parent, who encourages or facilitates fraudulent
representations concerning whether or not a child or parent is
an Indian for the purposes of the ICWA, who conspires to
encourage or facilitate such representations or omissions, or
who aids or abets such representations or omissions having
reason to know that such representations are being made and may
have a material impact upon the application of the ICWA.
Criminal penalties are necessary to help assure compliance with
the provisions of the ICWA which are triggered whenever an
Indian child is involved in a child custody proceeding. Willful
misrepresentations of Indian identity can serve to thwart the
application of the Act and the intent of the Congress. The
criminal sanctions will discourage attorneys and others from
circumventing the ICWA. There is considerable anecdotal
evidence that birth parents are often told by adoption
attorneys and agencies that they should not reveal that the
child may be an Indian child in order to avoid the application
of the ICWA. Indeed, in the In re Bridget R case,\31\ which
helped give rise to legislation to amend the Indian Child
Welfare Act in this Congress, there were allegations that the
original adoption attorney involved facilitated the very kind
of deception that the criminal sanctions in section 9 are
intended to deter. The Committee received testimony which
indicates that the birth father of the children in that case
apparently indicated that he was Indian on the original
adoption information sheet, was then informed by an attorney
that this would delay the adoption, and then filled out a new
form omitting the information about his Indian identity which
was then used by this attorney for the purposes of the adoption
even though the attorney knew that this information was not
true. The Committee intends to bring to bear against such
behavior the sanctions of criminal law.
---------------------------------------------------------------------------
\31\ In re Bridget R., 41 Cal. App. 4th 1483 (2nd Dist. 1996).
---------------------------------------------------------------------------
Conclusions
The ICWA was originally enacted to provide for procedural
and substantive protection for Indian children and families and
to recognize and formalize a substantial role for Indian tribes
in cases involving involuntary and voluntary child custody
proceedings, whether on or off the Indian reservation. The bill
approved by this Committee is entirely consistent with, and in
furtherance of, these same goals which continue to be of vital
important to the well-being of Indian children, Indian
families, and Indian tribes. The Committee has concluded that
S. 1962, as a compromise, will greatly improve the procedures
required under the ICWA in cases of voluntary child custody and
adoption proceedings. While these voluntary cases are but a
small fraction of the cases in which the Act has been applied,
they have been the ones which have gained much of the public
scrutiny the ICWA has experienced in recent years. In adopting
S. 1962, the Committee is taking a measured and limited
approach, actively crafted by representatives of both the
tribal governments and the adoption community, to address what
have become identified as the problems with how the ICWA
functions in the context of voluntary adoptions.
Legislative History
On June 26, 1996, the Committee held a hearing on a draft
discussion bill which served as the basis of S. 1962. S. 1962
was introduced on July 16, 1996 and referred to the Committee
on Indian Affairs. On July 24, 1996, the Committee on Indian
Affairs, by a vote of 13 for, 0 against, and 1 abstention,
ordered the bill reported with the recommendation that the
Senate pass the bill as reported.
Committee Recommendation and Tabulation of Vote
In an open business session on June 24, 1996, the Committee
on Indian Affairs, by a vote of 13 ayes, 0 nays, and 1
abstention, ordered the bill reported with the recommendation
that the Senate pass the bill as reported.
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 that
references in the bill to amendment or repeal relate to the
Indian Child Welfare Act of 1978 (25 U.S.C. 1901 et seq.).
Section 2. Exclusive jurisdiction
Section 2 adds a provision to 25 U.S.C. 1911(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 makes 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 25 U.S.C. 1913(a) to clarify that the Act
applies to voluntary consents 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 the Indian Child Welfare
Act, 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 for purposes of
these amendments, including the requirements governing notice
provided or received and consent given or revoked.
Section 5. Withdrawal of consent
Section 5 amends the Act by adding several new paragraphs
to 25 U.S.C. 1913(b). 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), thereafter he or she
may revoke consent only pursuant to applicable State law or
upon a finding by a court of competent jurisdiction that the
consent was obtained through fraud or duress. Paragraph (5)
provides that upon the effective revocation of consent by a
birth parent under the terms of paragraph (4)(B), 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 a period of longer than or equal to 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 Indian tribes
Section 6 requires notice to be provided 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 than 100 days after a foster care placement
occurs, no later than five days after a 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 a particular placement is contemplated. If an Indian
birth parent is discovered after the applicable notice periods
have otherwise expired, despite a reasonable inquiry having
been made on or before the commencement of the placement about
whether the child may be an Indian child, the time limitations
placed by section 8 upon the rights of an Indian tribe to
intervene apply only if the party discovering the Indian birth
parent provides notice to the Indian tribe under this section
not later than ten days after making the discovery.
Section 7. Content of notice
Section 7 requires that the notice provided under section 6
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 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 rights to intervene. Finally, the notice must state that if
the Indian tribe fails to respond by the statutory deadline,
the right of that Indian tribe to intervene will be considered
to have been waived.
Section 8. Intervention by Indian tribe
Section 8 adds four new subsections to 25 U.S.C. 1913,
which would limit the right of an Indian tribe to intervene in
a court proceeding involving foster care placement, voluntary
adoption, or termination of parental rights and which would
authorize voluntary agreements for enforceable rights of
visitation.
Under subsection (e), an Indian tribe could intervene in a
voluntary proceeding to terminate parental rights only if it
has filed a notice of intent to intervene or a written
objection not later than 30 days after receiving the notice
required by sections 6 and 7. 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 not later
than the later of 90 days after receiving notice of the
adoptive placement or 30 days after receiving notice of the
adoption proceeding pursuant to sections 6 and 7. 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 of
its determination 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.
Subsection (f) would clarify that the act or failure to act
of an Indian tribe to intervene or not intervene under
subsection (e) shall not affect any placement preferences or
other rights accorded to individuals under the Act, nor may
this preclude an Indian tribe from intervening in a case in
which a proposed adoptive placement is changed.
Subsection (g) would prohibit any court proceeding
involving the voluntary termination of parental rights or
adoption of an Indian child from being conducted before the
date that is 30 days after the Indian tribe has received notice
under sections 6 and 7.
Subsection (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 the 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 agreement may not be considered grounds for
setting aside the adoption decree.
Section 9. Fraudulent representation
Section 9 would add a new section 114 to the Indian Child
Welfare Act 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, for purposes of the Act, a child is an Indian child or
a parent is an Indian; or (2) makes any false or 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). Upon conviction of an initial violation, a
person shall be subjected to the fine prescribed in 18 U.S.C.
3571 for a Class A misdemeanor (not more than $100,000),
imprisonment for not more than 1 year, or both. Upon conviction
of any subsequent violation, a person shall be subjected to the
fine prescribed in 18 U.S.C. 3751 for a felony (not more than
$250,000), imprisonment for not more than 5 years, or both.
Cost and Budgetary Considerations
The cost estimate for S. 1962, as calculated by the
Congressional Budget Office, is set forth below:
U.S. Congress,
Congressional Budget Office,
Washington, DC, July 25, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
reviewed S. 1962, the Indian Child Welfare Act Amendments of
1996, as ordered reported by the Senate Committee on Indian
Affairs on July 24, 1996.
S. 1962 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 S. 1962 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 of
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,
June E. O'Neill, Director.
Enclosure.
Regulatory Impact Statement
Paragraph 11(b) of rule XXVI of the Standing Rules of the
Senate requires each report accompanying a bill to evaluate the
regulatory and paperwork impact that would be incurred in
carrying out the bill. The Committee has concluded that
enactment of S. 1962 will create only de minimis regulatory or
paperwork impacts.
Executive Communications
The Committee has received a letter in support for S. 1962
from the Department of Justice on July 23, 1996 and a letter of
support for S. 1962 from the Department of the Interior on July
24, 1996, which letters are set forth below:
U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, July 23, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: Thank you for the opportunity to provide
the Department of Justice's views on S. 1962, The Indian Child
Welfare Act Amendments of 1996.
The Department of Justice has only a limited role in the
litigation of Indian Child Welfare Act, 25 U.S.C.
Sec. Sec. 1901 et seq. (``ICWA'') cases, so our knowledge of
how, and how well, ICWA works is premised largely on the
reports of the Departments of Health and Human Services and the
Interior. They report that the ICWA has generally worked well,
especially when parties are informed about ICWA and it is
applied in a timely manner. Consistent with our institutional
role, we have reviewed S. 1962 based on our experience with
civil and criminal enforcement, the United States' commitment
to supporting tribal sovereignty, and basic principles of
statutory construction. We hope the following comments will
assist the Committee in considering the bill.
The Department supports S. 1962 and the important goals of
ICWA to promote the best interests of Indian children and the
stability and security of Indian tribes and families. We
support the bill because it would clarify ICWA, establish some
deadlines to provide certainty and reduce delay in adoption
proceedings, and strengthen Federal enforcement tools to ensure
compliance with ICWA. We understand that S. 1962 is, to a large
extent, based on the carefully crafted compromise agreement
between Indian tribes and adoption attorneys.
Regarding the provision in Section 4, ``Voluntary
Termination of Parental Rights,'' which would require courts to
certify that attorneys who facilitate adoptive placements have
advised the natural parents of an Indian child concerning the
scope of ICWA, see Sec. 4(B), the Department has reservations
about this provision to the extent that it might be construed
to limit an attorney's ability to discuss the feasibility of
various options with his or her client.
Otherwise, the Department believes S. 1962 represents a
sound approach to amending ICWA to address the concerns of its
critics without compromising tribal self-government or the best
interests of Indian children.
If we may be of additional assistance, please do not
hesitate to call upon us. The Office of Management and Budget
has advised that there is no objection to the submission of
this letter from the standpoint of the Administration's
program.
Sincerely,
Annett Harkins
(For Andrew Fois, Assistant Attorney General).
------
U.S. Department of the Interior,
Office of the Secretary,
Washington, DC, July 24, 1996.
Hon. John McCain,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: We understand that your Committee will
consider S. 1962, the ``Indian Child Welfare Act (ICWA)
Amendments of 1996'' on July 24, 1996. We support the enactment
of S. 1962, and commend the collaborative efforts of Indian
tribes and organizations, adoption attorneys and congressional
staff on this legislation, designed to address problems related
to the adoption of Indian children.
S. 1962 provides further procedural requirements for
individuals, agencies, or tribes involved in the voluntary
adoption process and clarifies their respective
responsibilities. It also facilitates compliance with the
requirements of the ICWA.
We would recommend that S. 1962 be narrowed in one respect.
Section 6 of S. 1962 amends section 103(c)(1) of ICWA to
require that the tribe be given notice of the voluntary foster
care or adoptive placement of an Indian child. While we have no
disagreement with this amendment as it relates to adoptive
placements, we question its advisability in connection with
foster care placements. Under current law, these placements are
not covered by ICWA if the parent retains the right to have the
child returned upon demand. The parent is thus able to use
temporary foster care placements as a respite while seeking to
resolve the problems that made the placement necessary. We
recommend that the Committee leave current law unchanged with
respect to foster care, in order to support Indian parents'
exercise of responsibility in resolving their own problems and
of control over the care of their children.
S. 1962 is a preferable alternative to Title III of H.R.
3286. It protects the sovereign status of Indian tribes and
preserves the intent of the ICWA.
The Office of Management and Budget has advised that it has
no objection to the submission of this letter from the
standpoint of the Administration's program. If we can be of
additional assistance please feel free to call upon us.
Sincerely,
Ada E. Deer,
Assistant Secretary--Indian Affairs.
Changes in Existing Law
In compliance with subsection 12 of rule XXVI of the
Standing Rules of the Senate, the Committee states that the
enactment of S. 1962 will result in the following changes in 25
U.S.C. Sec. 1901 et seq., with existing language which is to be
deleted in black brackets and the new language to be added in
italic:
25 U.S.C. 1911(a)
Sec. 1911. Indian tribe jurisdiction over Indian child custody
proceedings
(a)(1) Exclusive jurisdiction--
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 of
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.
* * * * * * *
25 U.S.C. 1911(c)
(c) State court proceedings; intervention--
[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.
* * * * * * *
25 U.S.C. 1913(a)
Sec. 1913. Parental rights, voluntary termination
(a) Consent; record; certification matters; invalid
consents--
(1) Where any parent of Indian custodian voluntarily
consents to a [Foster care placement] foster care of
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 the 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 of 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.
* * * * * * *
25 U.S.C. 1913(b)
(b) Foster care placement; withdrawal of consent--
(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) Subject to paragraph (6), if a consent to
adoption or voluntary termination of parental rights is
revoked under paragraph (4)(B), with respect to the
Indian child involved--
(A) in a manner consistent with paragraph
(3), the child shall be returned immediately to
the parent who revokes consent; and
(B) if a final decree of adoption has been
entered, that final decree shall be vacated
(6) Except as otherwise provided under applicable
State law, no adoption that has been in effect for a
period longer than or equal to 2 years may be
invalidated under this subsection.
* * * * * * *
25 U.S.C. 1913(c)
[(c) Voluntary termination of parental rights or adoptive
placement; withdrawal of consent; return of custody--
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, or the case may be, and the child shall be returned
to the parent.]
(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.
* * * * * * *
25 U.S.C. 1913(d)
[(d) Collateral attack; vacation of decree and return of
custody; limitations--
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.]
(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.
* * * * * * *
25 U.S.C. 1913
(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
document, 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.
* * * * * * *
25 U.S.C. 1924
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.