[Senate Report 105-156]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 295
105th Congress                                                   Report
                                 SENATE

 1st Session                                                    105-156
_______________________________________________________________________


 
 AMENDING THE INDIAN CHILD WELFARE ACT OF 1978, AND FOR OTHER PURPOSES

                                _______
                                

               November 13, 1997.--Ordered to be printed

_______________________________________________________________________


   Mr. Campbell, from the Committee on Indian Affairs, submitted the 
                               following

                              R E P O R T

                         [To accompany S. 569]

    The Committee on Indian Affairs, to which was referred the 
bill (S. 569) to amend the Indian Child Welfare Act of 1978, 
and for other purposes, having considered the same, reports 
favorably thereon with an amendment in the nature of a 
substitute, and recommends that the bill as amended do pass.
    The text of the bill follows:

MODIFIED LANGUAGE PROPOSED FOR S. 569 (TO MAKE A TECHNICAL CHANGE AND 
                    TO INCORPORATE A NEW SECTION 9 AND REDESIGNATE THE 
                    SUBSEQUENT SECTION).

SECTION 1. SHORT TITLE; REFERENCES.

  (a) Short Title.--This Act may be cited as the ``Indian Child 
Welfare Act Amendments of 1997''.
  (b) References.--Whenever in this Act an amendment or repeal 
is expressed in terms of an amendment to or repeal of a section 
or other provision, the reference shall be considered to be 
made to a section or other provision of the Indian Child 
Welfare Act of 1978 (25 U.S.C. 1901 et seq.).

SEC. 2. EXCLUSIVE JURISDICTION.

  Section 101(a) (25 U.S.C. 1911(a)) is amended--
          (1) by inserting ``(1)'' after ``(a)''; and
          (2) by striking the last sentence and inserting the 
        following:
  ``(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), 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 
be based on a good faith investigation and 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 sent a 
        notice of intent to intervene or a written objection to 
        the adoptive placement to the court or to the party 
        that is seeking the voluntary placement of the Indian 
        child, 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 sent a notice of intent to intervene 
        or a written objection to the adoptive placement to the 
        court or to the party that is seeking the voluntary 
        placement of the Indian child, 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 tribal certification that includes a statement 
that documents, with respect to the Indian child involved, the 
membership or eligibility for membership of that Indian child 
in the Indian tribe under applicable tribal law.
  ``(f) Any act or failure to act of an Indian tribe under 
subsection (e) shall not--
          ``(1) affect any placement preference or other right 
        of any individual under this Act;
          ``(2) preclude the Indian tribe of the Indian child 
        that is the subject of an action taken by the Indian 
        tribe under subsection (e) from intervening in a 
        proceeding concerning that Indian child if a proposed 
        adoptive placement of that Indian child is changed 
        after that action is taken; or
          ``(3) except as specifically provided in subsection 
        (e), affect the applicability of this Act.
  ``(g) Notwithstanding any other provision of law, no 
proceeding for a voluntary termination of parental rights or 
adoption of an Indian child may be conducted under applicable 
State law before the date that is 30 days after the Indian 
child's tribe receives notice of that proceeding that was 
provided in accordance with the requirements of subsections (c) 
and (d).
  ``(h) Notwithstanding any other provision of law (including 
any State law)--
          ``(1) a court may approve, if in the best interests 
        of an Indian child, as part of an adoption decree of 
        that Indian child, an agreement that states that a 
        birth parent, an extended family member, or the Indian 
        child's tribe shall have an enforceable right of 
        visitation or continued contact with the Indian child 
        after the entry of a final decree of adoption; and
          ``(2) the failure to comply with any provision of a 
        court order concerning the continued visitation or 
        contact referred to in paragraph (1) shall not be 
        considered to be grounds for setting aside a final 
        decree of adoption.''.

SEC. 9. PLACEMENT OF INDIAN CHILDREN.

  Section 105(c) (25 U.S.C. 1915(c)) is amended--
          (1) in the second sentence--
                  (A) by striking ``Indian child or parent'' 
                and inserting ``parent or Indian child''; and
                  (B) by striking the colon after 
                ``considered'' and inserting a period;
          (2) by striking ``Provided, That where'' and 
        inserting: ``In any case in which''; and
          (3) by inserting after the second sentence the 
        following: ``In any case in which a court determines 
        that it is appropriate to consider the preference of a 
        parent or Indian child, for purposes of subsection (a), 
        that preference may be considered to constitute good 
        cause.''.

SEC. 10. FRAUDULENT REPRESENTATION.

  Title I of the Indian Child Welfare Act of 1978 is amended by 
adding at the end the following new section:

``SEC. 114. FRAUDULENT REPRESENTATION.

  ``(a) In General.--With respect to any proceeding subject to 
this Act involving an Indian child or a child who may be 
considered to be an Indian child for purposes of this Act, a 
person, other than a birth parent of the child, shall, upon 
conviction, be subject to a criminal sanction under subsection 
(b) if that person knowingly and willfully--
          ``(1) falsifies, conceals, or covers up by any trick, 
        scheme, or device, a material fact concerning whether, 
        for purposes of this Act--
                  ``(A) a child is an Indian child; or
                  ``(B) a parent is an Indian;
          ``(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); or
          ``(3) assists any person in physically removing a 
        child from the United States in order to obstruct the 
        application of this Act.
  ``(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. 569 is to amend the Indian Child Welfare 
Act to provide additional procedures applicable to voluntary 
Indian child custody proceedings. The amendments contained in 
S. 569 will help ensure greater certainty, stability, and 
finality in child custody determinations without compromising 
the longstanding recognition that the opportunity to 
meaningfully participate in placement decisions affecting 
enrolled or eligible children is a vital aspect of the inherent 
sovereignty of tribal governments.

                               Background

                  federal indian child welfare policy

    In enacting the Indian Child Welfare Act (ICWA or Act) of 
1978, Congress sought to achieve the following objectives: 
protecting the relationship between Indian children \1\ and 
their parents; affirming the tribal right to meaningfully 
participate and/or preside over placement decisions affecting 
Indian children; preserving each Indian child's Indian heritage 
and, wherever possible, its specific tribal affiliation; and 
providing an orderly mechanism for resolving questions 
concerning state and tribal court jurisdiction over Indian 
children.
---------------------------------------------------------------------------
    \1\ 25 U.S.C. 1903(4) includes any unmarried person under 18 years 
old who is either enrolled or elibile for enrollment in an Indian tribe 
in its definition of ``Indian child,'' if they are the biological child 
of a member of an Indian tribe.
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    Testimony and other evidence presented to this Committee 
and to previous Congresses reveal that in the vast majority of 
cases, the ICWA accomplishes these important objectives. In a 
few highly publicized cases, however, the Act falls short of 
fulfilling Congressional objectives. These problems can be 
largely attributed to the Act's lack of explicit procedures for 
how and when a child's tribe is to be notified in some 
adoptions. These cases have created the very type of conflict 
and protracted litigation that Congress sought to eliminate by 
enacting the ICWA.
    S. 569 seeks to extend the benefits of greater certainty, 
stability, and finality to all child custody proceedings 
covered by the ICWA. The bill's provisions are largely 
procedural. S. 569 clarifies or prescribes procedures to 
eliminate the conflicts that sometimes result when the absence 
of immediate notice to the child's tribe forces the tribe to 
choose between waiving its ICWA-codified rights or intervening 
late in a child custody proceeding. Such late intervention is 
often opposed by the other participants in the proceeding. 
These opposing parties claim that tribal intervention disrupts 
their settled expectations. Tribes respond that the absence of 
explicit notification procedures often prevents them asserting 
their legitimate interests in a more timely fashion.
    In favorably reporting S. 569, the Committee believes that 
its procedural reforms are entirely consistent with the 
objectives that Congress sought to achieve when it enacted the 
original Act. Furthermore, its provisions protect the success 
that has been reported in other areas where the ICWA applies.

I. Protecting the relationship between Indian children and their 
        parents

    Testimony presented to the 95th and previous Congresses 
revealed what the House Committee on Interior and Insular 
Affairs characterized as ``the wholesale separation of Indian 
children from their families'' and the placement of these 
children in institutions or non-Indian environments.\2\ 
Congress found that a number of factors were responsible for 
the disproportionate placement of Indian children in foster 
care and adoptive homes, including the application of 
culturally inappropriate standards to Indian parenting, unequal 
treatment of Indian parents by state courts and social workers, 
inadequate representation of Indian parents in child custody 
proceedings, and the invidious coercion of parents to 
voluntarily waive parental rights.
---------------------------------------------------------------------------
    \2\ H. Rep. 95-1386, p. 9. The American Indian Policy Review 
Commission shared these concerns and made the reform of child custody 
proceedings one of its primary recommendations. Final Report, May 17, 
1977, American Indian Policy Review Commission, p. 422-23. This matter 
was also addressed by previous Congresses: Indian Child Welfare 
Program: Hearings before the Subcomm. on Indian Affairs of the Senate 
Comm. on Interior and Insular Affairs, 93rd Cong., 2d Session 70 
(1974); and Indian Child Welfare Act of 1977: Hearing on S. 1214 before 
the Senate Select Comm. on Indian Affairs, 95th Cong. 1st Sess. (1977).
---------------------------------------------------------------------------
    To address this unfortunate reality, Congress required 
proof that active efforts and remedial measures were provided 
before a party could seek the foster care placement of a child 
or the termination of parental rights.\3\ Indigent Indian 
parents were guaranteed legal representation in all of the 
child custody proceedings covered by the Act.\4\
---------------------------------------------------------------------------
    \3\ 25 U.S.C. 1912(d).
    \4\ 15 U.S.C. 1912(b).
---------------------------------------------------------------------------
    Congress determined that states and their courts were 
largely responsible for the problems the ICWA was intended to 
correct. Evidence presented to the 95th Congress and a 
contemporaneous U.S. Supreme Court decision provided strong 
evidence that the use of vague standards such as ``in the 
child's best interest'' or removing a child based on 
``neglect,'' or ``social deprivation'' were likely to result in 
the unnecessary removal of children from their families.\5\ 
Furthermore, once children were removed from their families, 
state social workers would sometimes actively try to prevent 
family reunification.\6\
---------------------------------------------------------------------------
    \5\ Smith v. Organization of Foster Families for Equalization and 
Reform (OFFER), 431 U.S. 816 (1977).
    \6\ ``Studies also suggest that social workers of middle-class 
backgrounds, perhaps unconsciously, incline to favor continued 
placement in foster care with a generally higher-status family rather 
than return the child to his natural family, thus reflecting a bias 
that treats the natural parents' poverty and lifestyle as prejudicial 
to the best interests of the child.'' Smith v. OFFER, 431 U.S. at 834 
(1977) (italics added). The Court went onto note: ``Moreover, judges 
too may find it difficult, in utilizing vague standards * * * to avoid 
decisions resting on subjective values.'' id. at n. 36.
---------------------------------------------------------------------------
    While the ICWA does not divest states of jurisdiction over 
all off-reservation child custody proceedings, it does 
establish uniform federal standards before an Indian child may 
lawfully be removed from his or her birth family. These 
standards and procedures are intended to prevent state 
officials from using subjective criteria as a basis for 
removing Indian children from their birth families.\7\ Except 
where there is clear proof that it is not in the best interest 
of the child, Indian families are to be kept intact. For 
example, before a state court may terminate the parental rights 
of an Indian parent, the state must demonstrate by proof beyond 
a reasonable doubt that continued custody of the child would 
result in serious emotional or physical damage.\8\ Foster care 
placements can only be ordered upon proof by clear and 
convincing evidence that such damage will occur if the child 
remains in the custody of its parents or guardian.\9\ Finally, 
the Act provides that any of the Act's minimum requirements may 
be replaced by any other applicable state or federal law which 
provides higher standards of protection for the rights of 
Indian parents or custodians.\10\
---------------------------------------------------------------------------
    \7\ In Santosky v. Kramer, 455 U.S. 745 (1982), the U.S. Supreme 
Court ruled that the Due Process Clause of the U.S. Constitution 
requires a legal standard no less stringent than ``clear and 
convincing'' evidence before parental rights may be terminated. One of 
the Court's primary concerns was a desire to address the ``imprecise 
substantive standards'' applied in permanent neglect proceedings. These 
standards ``leave determinations unusually open to the subjective 
values of the judge.'' Id. at 762.
    \8\ 25 U.S.C. 1912(f). This provision and 25 U.S.C. 1912(e) both 
explicitly require ``testimony of qualified expert witnesses.''
    \9\ 25 U.S.C. 1912(e).
    \10\ 25 U.S.C. 1921.
---------------------------------------------------------------------------
    The 95th Congress also found reason to question whether 
many ostensibly ``voluntary'' relinquishments of parental 
rights were, in fact, the product of actual informed consent. 
Under the ICWA, such consent must be executed in writing and 
then recorded before a judge. A judge must then certify that 
the consequences of the decision are understood by the 
parent(s), including circumstances in which effective 
communication requires cross-cultural and language translation. 
Finally, such consent is not valid if it is executed before the 
birth of a child or within ten days after his birth.\11\
---------------------------------------------------------------------------
    \11\ 25 U.S.C. 1913(a).
---------------------------------------------------------------------------
    Some commentators suggest a need for more extensive 
reductions in state jurisdiction over Indian child custody 
proceedings in order to protect the relationship between Indian 
children and parents.\12\ Although the ICWA does not divest 
states of this jurisdiction, tribal court jurisdiction is 
intended to reinforce the interest of both tribes and tribal 
member parents.
---------------------------------------------------------------------------
    \12\ One commentator complained that the Act leaves ``[m]ost of the 
major procedural safeguards * * * entrusted to the child welfare 
agencies and state courts, which Congress had considered responsible 
for the problem initially.'' Barsh, ``The Indian Child Welfare Act of 
1978: A Critical Analysis,'' 31 Hastings L.J. 1287, 1334 (1980).
---------------------------------------------------------------------------

II. Affirming a tribe's ability to meaningfully participate and/or 
        preside over placement decisions affecting Indian children

    As the U.S. Supreme Court recognized in 1989: ``at the 
heart of the ICWA are its provisions concerning jurisdiction 
over Indian child custody proceedings.'' Mississippi Band of 
Choctaw Tribe v. Holyfield.\13\ The Act affirms exclusive 
tribal jurisdiction over children who reside or are domiciled 
on the tribe's reservation.\14\ The law ``creates concurrent 
but presumptively tribal jurisdiction in the care of children 
not domiciled on the reservation; on petition of either the 
parent or the tribe, state-court proceedings for foster care 
placement or termination of parental rights are [generally] to 
be transferred to the tribal court. * * *''\15\
---------------------------------------------------------------------------
    \13\ 490 U.S. 30 (1989).
    \14\ 25 U.S.C. 1911(a).
    \15\ Holyfield, 490 U.S. at 36.
---------------------------------------------------------------------------
    In the Act's legislative findings, Congress explained its 
rationale for recognizing broad tribal court jurisdiction over 
child custody proceedings: ``States * * * have often failed to 
recognize the essential tribal relations of Indian people and 
the cultural and social standards prevailing in Indian 
communities and families.'' \16\
---------------------------------------------------------------------------
    \16\ 25 U.S.C. 1901(5).
---------------------------------------------------------------------------
    The jurisdictional provisions of the Act accomplish several 
objectives. First and foremost, they recognize that tribal 
jurisdiction over child custody proceedings is an attribute of 
each tribe's inherent sovereignty. As Holyfield recognized: 
``[t]ribal jurisdiction over Indian child custody proceedings 
is not a novelty of the ICWA. Indeed, some of the ICWA's 
provisions have a strong basis in pre-ICWA case law in federal 
and state courts.'' \17\ A concurring opinion in a 
contemporaneous Arizona Supreme Court decision provided another 
compelling reason for state courts to defer to tribal courts in 
involuntary Indian child custody proceedings.
---------------------------------------------------------------------------
    \17\ Holyfield, 490 U.S. at 92, citing Wakefield v. Little Light, 
276 Md. 333, 347 A.2d 228 (1975) and Wisconsin Potowatomies v. Houston, 
393 F.Supp. 719 (W.D. Mich., 1973).

          Often the tribal court's insight into tribal cultural 
        values and way of life will make it the best forum for 
        such a determination. Although we are not social 
        scientists, as judges we must be aware of the fact that 
        acts which mean one thing in our culture may have a 
        very different meaning in another culture. What I might 
        see as circumstances implying abandonment may well be 
        culturally-prescribed parental behavior in another 
        social structure. A child left in a grandparent's care 
        for an apparently lengthy period may, in fact, be a 
        normal period of training for adult tribal 
        responsibility.\18\
---------------------------------------------------------------------------
    \18\ In re Duryea, 563 P.2d 885, 888 (Ariz. 1977).

    As the Holyfield Court recognized, a number of state and 
federal courts had found a strong legal and factual basis for 
deferring to tribal court jurisdiction over child custody 
proceedings involving enrolled or eligible children. In 
addition to each tribal court's familiarity with the tribe's 
child-rearing customs, courts found that child custody 
proceedings were easily within the reach of the issues 
characterized by the Supreme Court as ``essential tribal 
relations'' in the benchmark decision Williams v. Lee.\19\ In 
Williams v. Lee, the Supreme Court explained that state court 
jurisdiction violates federal policy if this jurisdiction 
interferes with a tribe's authority to ``make their own laws 
and be ruled by them.'' Applying this principle to child 
welfare proceedings, one seminal case explained: ``If tribal 
sovereignty is to have any meaning at all at this juncture of 
history, it must necessarily include the right, within its own 
boundaries and membership, to provide for the care and 
upbringing of its young, a sine qua non to the preservation of 
its identity. That sovereignty, as the Supreme Court has noted 
`predates that of our own government.' '' \20\
---------------------------------------------------------------------------
    \19\ 258 U.S. 217 (1959).
    \20\ Wisconsin Potowatomies v. Houston, 393 F. Supp. 719, 730 
(1973).
---------------------------------------------------------------------------
    Recognizing that tribal courts are the appropriate 
institutions for determining whether a child should be removed 
from its parents reinforces each tribe's authority to define 
and enforce its own standards for what constitutes acceptable 
parenting practices. This allows tribes to preserve and develop 
their culture because it allows tribes to assess parental 
behavior by culturally appropriate standards. Tribal leaders 
testified that no area is more important for the preservation 
of tribal culture than the ability to define appropriate family 
behavior. As one tribal leader explained:

          One of the most serious failings of the present 
        system is that Indian children are removed from the 
        custody of their natural parents by nontribal 
        government authorities who have no basis for 
        intelligently evaluating the cultural and social 
        premises underlying Indian home life and child-
        rearing.\21\
---------------------------------------------------------------------------
    \21\ Honorable Calvin Isaac, Tribal Chief, Mississippi Band of 
Choctaw Indians, as quoted in Holyfield, 490 U.S. at 34-5.

    Although tribal advocates testified strongly in favor of 
broad tribal court jurisdiction, they agreed that preserving 
the parent-child relationship should take precedence over the 
full exercise of tribal court jurisdiction. Thus, where parents 
of an Indian child reside off-reservation, the Act protects the 
right of either parent to block the transfer of an involuntary 
child custody proceeding to tribal court.\22\
---------------------------------------------------------------------------
    \22\ Congress was also aware that there might be a number of 
factors and circumstances where an Indian parent residing off-
reservation might determine that it was in their best interest to 
appear and defend child custody proceedings in that (state court) 
setting. For example, for a tribal member parent residing off-
reservation, returning to a reservation to appear in tribal court might 
impose a costly travel burden, as well as threaten both employment and 
an already unstable family environment.
---------------------------------------------------------------------------
    Because the residence chosen by the parent of an Indian 
child may allow them to choose between state and tribal court 
jurisdiction, some have asserted that parents should be able to 
bypass the other procedures and remedies included in the Act at 
the behest of tribes.\23\ This argument fails to account for 
the Act's underlying basis and one of Congress' clear 
objectives.\24\ Congress found that the interests of neither 
Indian children nor their tribes would be served if the direct 
relationship between tribes and Indian children was not given 
the proper measure of recognition and protection.\25\ As the 
Supreme Court explained in Holyfield: ``[t]he protection of 
this tribal interest is at the core of the ICWA, which 
recognizes that the tribe has an interest in the child which is 
distinct from but on parity with the interest of the parents.'' 
\26\ Based on evidence concerning the effect on Indian children 
of separation from the tribes, the Act includes a number of 
provisions that are concerned with the relationship between an 
Indian child and its tribe, in addition to those involving the 
child's relationship with its tribal-member parent(s).
---------------------------------------------------------------------------
    \23\ For example, in Holyfield, the dissent asserted that tribal 
members who reside on reservation should also be allowed to avoid 
tribal court jurisdiction.
    \24\ If the ICWA was interpreted to allow reservation-domiciled 
parents to avoid tribal court jurisdiction, as urged by the minority in 
Holyfield, or to allow off-reservation tribal members to preclude the 
Act's application in matters like tribal intervention, the Act would 
actually reduce or eliminate the rights tribes posses under the state 
and federal court decisions which preceded the statute. For example, 
Williams v. Lee, 258 U.S. 217 (1959) and its progeny require exclusive 
tribal court jurisdiction over domestic-relations matters concerning 
reservation residents.
    \25\ Indeed, the Supreme Court addressed this very issue in 
Holyfield. That case arose when tribal member parents left their 
reservation with the express intent of having their children born off-
reservation and immediately offering them for adoption. They took these 
steps in an effort to circumvent exclusive tribal jurisdiction over the 
adoption of their twin children. The Supreme Court refused to allow 
actions by the parents to defeat the rights of either the Indian child 
or the child's tribe. The Supreme Court ruled that the Choctaw tribal 
court possessed exclusive jurisdiction over any adoption proceeding 
involving the twins. Furthermore, the Court refused to allow the 
parent's actions to eliminate the protection Congress provided to 
Indian children. As the Court explained, ``Congress' concern over the 
placement of Indian children in non-Indian homes was based in part on 
evidence of the impact on the children themselves of such placements 
outside their culture.'' Holyfield, 490 U.S. at 49-50 (italics added). 
Significantly, the Court found this objective relevant to a case 
involving children who had never resided on a reservation.
    \26\ Id., at 52, (quoting In re Adoption of Halloway, 732 P.2d 962, 
969 (Utah 1986)).
---------------------------------------------------------------------------
    For example, even where a tribal court does not obtain 
jurisdiction over a child custody proceeding, the tribe may 
intervene in a state court proceeding.\27\ Most important, 
current law requires that tribes be notified of involuntary 
child custody proceedings.\28\ The Act precludes state courts 
from ordering foster care placement or terminating parental 
rights until notice is provided to the Indian child's parent or 
custodian and the child's tribe or, where appropriate, the 
Secretary of Interior.\29\ The law also ensures that all 
parties to such a proceeding may examine all of the relevant 
documents provided to the court.\30\ These carefully crafted 
provisions provide tribes with a full and meaningful 
opportunity to participate in these proceedings. Lastly, the 
Act provides tribes with the opportunity to provide testimony 
and ensure that state courts are aware of the Act's 
requirements.\31\
---------------------------------------------------------------------------
    \27\ 25 U.S.C. 1911(c).
    \28\ 25 U.S.C. 1912(a) requires notice of involuntary child custody 
proceedings. In Holyfield, the Supreme Court interpreted 25 U.S.C. 
1911(c) to allow tribal intervention in ``any action resulting in the 
termination of the parent-child relationship.'' Holyfield, 490 U.S. at 
38 n. 12. Thus, tribes may intervene in either voluntary or involuntary 
proceedings that may result in the termination of parental rights. 
However, the time-frames and procedures for notifying tribes do not 
necessarily apply to voluntary proceedings. S. 569 will clarify that a 
tribe has the right to notice of any proceeding where it may intervene.
    \29\ 25 U.S.C. 1912(a).
    \30\ 25 U.S.C. 1912(c).
    \31\ 25 U.S.C. 1911(c).
---------------------------------------------------------------------------
    Congress was also concerned that tribal court decisions 
would be rendered meaningless if the decisions made by tribal 
courts could simply be relitigated in state court. To prevent 
this from occurring, the Act included provisions requiring the 
courts and agencies of the federal, state, and territorial 
governments to give full faith and credit to the public acts, 
records, and judicial proceedings of any Indian tribe for 
Indian child custody proceedings.\32\
---------------------------------------------------------------------------
    \32\ 25 U.S.C. 1911(d).
---------------------------------------------------------------------------
    To ensure compliance with the Act, the parent or custodian 
of an Indian child, the child's tribe, or the state is 
authorized to petition for the invalidation of any action that 
violates the Act's terms, including provisions concerning 
jurisdiction, notice, and procedures and standards for 
voluntary termination of parental rights.\33\
---------------------------------------------------------------------------
    \33\ 25 U.S.C. 1914.
---------------------------------------------------------------------------

III. Preserving each Indian child's Indian heritage and, wherever 
        possible, its specific tribal affiliation

    The ICWA's paramount objective is to serve the best 
interests of Indian children. Reflective of this goal, the Act 
and its legislative history contain references and provisions 
relating to the importance of preserving each child's Indian 
heritage and tribal affiliation.
    For example, the law defines preferences favoring placement 
with a child's extended family, a member of the child's tribe, 
and then with other Indian families. Congress determined that a 
child's Indian heritage should be taken into account because of 
serious concerns about the effect of these placements on both 
tribes and Indian children. In its report accompanying this 
provision, the 95th Congress explained: ``[t]his section seeks 
to protect the rights of the Indian child as an Indian and the 
rights of the Indian community and tribe in retaining its 
children in its society.'' \34\ The Supreme Court characterized 
this provision as ``[t]he most important substantive 
requirement imposed on state courts. * * *'' \35\
---------------------------------------------------------------------------
    \34\ H. Rep. 95-1386, 2d Session, 1978, at page 23 (italics added).
    \35\ Holyfield, 490 U.S. at 36.
---------------------------------------------------------------------------
    The hearing record of the 95th Congress reveals substantial 
evidence that state courts and private adoption agencies failed 
to recognize each tribe's interest in providing foster care or 
adoptive placements within the child's extended family, within 
the tribe, or with other Native American families. These 
entities appeared unaware or unconcerned with the effect that 
placements with non-Indian families had on Indian children or 
their tribes.
    The Act's placement preferences were created to ensure that 
state courts would fully consider the petitions of those within 
one of the preferred classes. These applicants must also be 
considered in the order that Congress established to serve the 
best interests of the Indian children and their tribes.\36\ 
State courts may only reject these preferred applicants upon a 
finding of good cause that the placement is not in an Indian 
child's best interest. By requiring a finding of good cause, 
Congress responded to evidence that: ``[d]iscriminatory 
standards have made it virtually impossible for Indian couples 
to qualify as foster or adoptive parents.'' \37\ In addition, 
this procedure ensures that any rejection of an applicant will 
include the trial judge's findings and conclusions, which are 
then subject to appellate review.\38\
---------------------------------------------------------------------------
    \36\ 25 U.S.C. 1915(a). The Act also allows each Indian tribe to 
establish placement preferences that apply when state courts have 
jurisdiction over the placement of children of that tribe. 25 U.S.C. 
1915(c).
    \37\ H. Rep. 95-1386, p. 11.
    \38\ The Committee is also concerned about reports that appellate 
review has proven to be an inadequate means of ensuring state court 
compliance with the Act's placement preferences. The Indian Law 
Deskbook compiled by the Conference of Western Attorneys General (CWAG) 
concedes that: ``[s]tate appellate courts, however, have evinced a 
reluctance to overturn good-cause findings by trial courts, even when 
those findings have been based on grounds seemingly less compelling 
than those in the [BIA's ICWA] guidelines.'' CWAG, American Indian Law 
Deskbook, 379 (1993).
---------------------------------------------------------------------------
    The second title of the Indian Child Welfare Act sought to 
address concerns that inadequate attention and resources were 
allocated towards establishing on-reservation foster care and 
adoptive placements by authorizing the Secretary to make grants 
to establish Tribal Indian Child and Family Service Programs. 
Among other objectives, these programs are authorized to 
license and regulate foster care and adoptive placements that 
may receive funds under Titles IV-B and XX of the Social 
Security Act.\39\
---------------------------------------------------------------------------
    \39\ 25 U.S.C. 1931.
---------------------------------------------------------------------------
    An Indian tribe has the right to obtain state records 
pertaining to the placement of Indian children.\40\ The ICWA 
also provides for agreements between tribes and states with 
regard to the care and custody of Indian children and 
jurisdiction over child custody proceedings.\41\ For those 
instances where a child is separated from its tribal culture, 
the Act includes a procedure to allow individuals to obtain 
information about their tribal affiliation and ``such other 
information as may be necessary to protect any rights flowing 
from the individual's tribal relationship.'' \42\ These 
provisions demonstrate Congressional recognition of the 
paramount importance that Indian heritage plays in the 
successful and healthy development of Indian children and 
cultures.
---------------------------------------------------------------------------
    \40\ 25 U.S.C. 1915(e).
    \41\ 25 U.S.C. 1919.
    \42\ 25 U.S.C. 1917.
---------------------------------------------------------------------------

IV. Providing an orderly mechanism for resolving questions concerning 
        state and tribal court jurisdiction over Indian children

    Testimony presented to the 104th and 105th Congress 
revealed that in the vast majority of instances, the ICWA has 
improved the efficiency of child custody proceedings. Like the 
Uniform Child Custody Jurisdiction Act (UCCJA), the ICWA 
resolves jurisdictional ambiguities that had previously 
depleted the time and resources of those involved with child 
custody proceedings. Before enactment of the ICWA, participants 
in child custody proceedings involving Indian children, 
including courts, were required to resolve complicated 
jurisdictional questions prior to turning their attention to 
the merits of a case. As the Committee was aware in 1978 and as 
the Supreme Court recognized in 1989, state and federal courts 
were trying to develop policies for dealing with these 
complicated issues on a case-by-case basis. By legislating on 
these questions, Congress was able to hold extensive fact-
findings hearings, consider testimony on various versions of 
the Act, and finally enact a law that balanced competing 
concerns and replaced the disparate approaches to these issues 
in numerous state and federal jurisdiction with procedural 
certainty for most cases.
            The procedures applicable to the ICWA
    Concerns about involuntary child custody proceedings were 
primarily addressed through the substantive and procedural 
requirements discussed above. These procedures have become a 
relatively common component of state court cases in which 
Indian parents face the involuntary placement of their children 
in foster care or the termination of parental rights. Since 
involuntary child custody proceedings are by their nature 
adversarial, the ICWA reformed the practices that often 
prejudiced the rights of Indian parents. By protecting a child 
from involuntary separation from its parents, the ICWA also 
protected Indian children from temporary and permanent out-of-
home placements that threatened the child's Indian heritage and 
tribal affiliation.
    In the context of nonadversarial child custody matters, 
however, procedures for integrating these protections proved 
more problematic. In involuntary proceedings, there is an 
easily recognized point when tribal intervention becomes 
necessary to protect parental rights and a child's tribal 
heritage. By contrast, it is more difficult to define an 
analogous point in voluntary child custody proceedings. Some of 
the testimony presented to the 95th Congress included concerns 
that procedural constraints would be overly-broad if they 
applied to all voluntary placements made by parents.\43\
---------------------------------------------------------------------------
    \43\ See. e.g. 1977 Hearings at 192-216, 431-74; and Barsh, at 
1313.
---------------------------------------------------------------------------
    Nevertheless, as the Supreme Court recognized in Holyfield: 
``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.'' \44\ In the 
context of voluntary placements, the final version of the ICWA 
includes strong substantive protections for tribal interests, 
including, most notably, placement preferences. Also, courts, 
including the U.S. Supreme Court, have interpret the ICWA as 
providing a tribal right to intervene in voluntary 
adoptions.\45\ As enacted, however, the Act lacks an explicit 
procedure for incorporating these substantive rights into all 
voluntary adoption proceedings. For example, in circumstances 
where an adoptive placement occurs in a proceeding separate and 
apart from the voluntary or involuntary termination of parental 
rights, the ICWA does not specify how or when a tribe is to be 
notified.
---------------------------------------------------------------------------
    \44\ Holyfield, 490 U.S. at 50.
    \45\ Id., 490 U.S. at 39 n.12.
---------------------------------------------------------------------------

                        The Need for Legislation

    Based on testimony presented to the 104th and 105th 
Congresses, the Committee recognizes that the lack of explicit 
ICWA procedures in voluntary child custody placements has led 
to a few highly publicized cases where courts have been faced 
with difficult and often divisive choices that clearly could 
have been avoided if the ICWA's substantive terms were 
integrated sooner in the consideration of placement decisions 
affecting Indian children. In addition, some of the higher 
profile cases have involved deliberate attempts to hide or 
conceal a child's Indian heritage.\46\
---------------------------------------------------------------------------
    \46\ Indeed, one of the cases that brought the need to amend the 
Act to the Committee's attention arose under these facts. As one of the 
witnesses explained: ``In the Rost case, as in countless others, the 
former attorney really knew [the children] were Native American. This 
wasn't a problem with the birth parents lying. The adoption attorney . 
. . chose not to give notice to the tribe, not to tell the adoption 
agency which became involved, and not to tell my clients, the Rosts, 
that they were taking children into their care that had Native American 
heritage.'' S. Hrng. 104-574, June 26, 1996, at 41, Statement of Jane 
Gorman, Esq.
---------------------------------------------------------------------------
    There is no dispute that in some instances, unscrupulous 
adoption promoters, including some attorneys, have abused the 
absence of specific procedures by encouraging those wishing to 
facilitate the adoption of an Indian child to hide or obscure a 
child's tribal heritage either when a placement is first made 
\47\ or when a petition is filed for an adoption decree.
---------------------------------------------------------------------------
    \47\ It is common for a child to be placed with a prospective 
adoptive family for a period of months and sometimes more than a year 
before a petition is filed to either terminate parental rights or 
initiate adoption proceedings.
---------------------------------------------------------------------------
    The Committee was also presented with testimony from 
adoption professionals who are concerned that present law 
allows tribes to intervene at any time in an adoption 
proceeding until a final decree is entered. The Committee 
recognizes that the interests of those concerned with the 
adoption of Indian children are best served by encouraging 
tribes to intervene, if the tribes deem it necessary to do so, 
as early as possible. Further, as a part of the compromise 
included in S. 569, the Committee agrees to encourage timely 
tribal participation by limiting the time during which a tribe 
may intervene in a voluntary adoption proceeding. Indian tribes 
have testified that they are willing to accept this constraint 
in exchange for explicit procedures to ensure that they receive 
timely and adequate notice of such proceedings.

                description of the ``tulsa'' compromise

    As discussed more fully in S. Rep. 104-335, discussions 
between adoption professionals and tribal representatives 
revealed that the interests of the adoptive families, tribes, 
and most of all, Indian children were not served by a system 
that left adoptions subject to collateral attack if tribes were 
not given notice of a voluntary adoption and which placed no 
limits on when a tribe may intervene. These discussions 
commenced at the June 1996 mid-year convention of the National 
Congress of American Indians (NCAI) at Tulsa, Oklahoma. On June 
26, 1996, a legislative hearing before the Senate Indian 
Affairs Committee addressed the need for procedural clarity in 
voluntary child custody proceedings.\48\ Working together, 
tribal representatives and adoption professionals identified 
changes that would address problems with the ICWA's 
implementation in ways that both adoption advocates and Indian 
tribes would find acceptable. On July 16, 1996 Senator McCain 
introduced S. 1962 with ten immediate cosponsors. S. 1962 was 
passed by the Committee and the Senate, but was not acted upon 
by the House of Representatives during the 104th Congress.
---------------------------------------------------------------------------
    \48\ S. Hrng. 104-574, June 26, 1996.
---------------------------------------------------------------------------
    Both the National Indian Child Welfare Association (NICWA) 
and the National Congress of American Indians (NCAI) were 
actively involved in efforts to craft the ``Tulsa'' compromise, 
as were representatives of those participating in the 
compromise negotiations, as were representatives of the 
American Academy of Adoption Attorneys (AAAA) and the Academy 
of California Adoption Attorneys (ACAA). These groups indicate 
that S. 569, which tracks the provisions of S. 1962 from the 
104th Congress, is well within the parameters of, and is 
consistent with the consensus initially reached in Tulsa, 
Oklahoma in June 1996 and subsequently refined in negotiations 
between these groups. Testimony at the Committee's June 18, 
1997 hearing confirms that a consensus exists between these 
groups.
    The central theme of the ``Tulsa'' compromise is that the 
Act should be amended to ensure greater certainty, stability, 
and finality in voluntary adoptions by guaranteeing early and 
effective notice to tribes in all cases involving Indian 
children. These procedures are balanced by 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. 569 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 on Indian tribe may intervene

    25 U.S.C. 1911(c) would be substantially amended to curtail 
the present right of an Indian tribe to intervene ``at any 
point in the proceeding.'' Under S. 569, 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.\49\ An Indian tribe's waiver of its right to intervene 
is binding. If an Indian tribe seeks to intervene in a timely 
manner, 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.
---------------------------------------------------------------------------
    \49\ This provision is not intended to preempt state law concerning 
permissive intervention.
---------------------------------------------------------------------------

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. 569 
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. 569 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 later of the following periods: 6 months 
after the Indian child's tribe received the required notice or 
30 days after the adoption proceeding began, as specified. An 
Indian birth parent may otherwise revoke consent 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 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. 569 to 
add a requirement for notice to be sent to the Indian child's 
tribe by a party seeking to place the child or 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 pre-adoptive placement or 
adoptive placement, or within 10 days of the commencement of a 
termination of parental rights proceeding or adoption 
proceeding. S. 569 would specify the particular information 
that is provided. In addition, 25 U.S.C. 1913(a) would be 
amended by S. 569 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 
adoptive placement.

Open adoptions and enforceable visitation agreement encouraged between 
        Indians and non-Indians

    25 U.S.C. 1913 would be amended by S. 569 to encourage and 
facilitate voluntary adoption 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 local law does not 
provide for such arrangements. The committee determines that 
this specific reform will, in some cases, encourage early 
resolution of otherwise controversial cases.

Penalties applied for fraud and misrepresentation

    S. 569 would apply criminal penalties to any efforts to 
encourage and facilitate fraudulent representations or 
omissions regarding whether a child or birth parents is an 
Indian for purposes of the Act.

Miscellaneous

    S. 569 would clarify that the exclusive jurisdiction of 
tribal courts under 25 U.S.C. 1911(a) continues 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

    Several parties have submitted testimony urging the 
Committee to address state court cases applying the so-called 
``existing Indian family'' exception to the ICWA. Because of 
concerns expressed by part of the coalition supporting S. 569, 
the Committee must balance the benefits of addressing this 
matter directly versus the likelihood of disrupting the 
consensus that has produced and supported this compromise. Upon 
consideration, the Committee finds it unnecessary to address 
this potentially divisive matter because many of the cases 
applying this doctrine may be otherwise resolved through the 
application of the existing terms of the Act or the 
clarifications embodied in S. 569.
    Most importantly, the provisions of S. 569 are intended to 
preclude situations where state courts have felt constrained to 
apply this doctrine in order to avoid what they perceive to be 
an inequitable result. Testimony before the Committee confirms 
that the absence of specific procedures or requirements for 
integrating tribal participation in voluntary child custody 
proceedings results in placements occurring without any notice 
to a child's tribe. Often a child's parent(s) or a private 
agency will place a child with a prospective adoptive family 
for a period of months or even years before an adoption decree 
or termination of parental rights is filed. (Sometimes judicial 
proceedings will trigger tribal notification.) This scenario 
makes it much more likely that a conflict will arise between 
the tribe and the prospective adoptive family. Faced with 
circumstances where a child has been placed with one family for 
an extended period of time, prior to tribal intervention and 
application of the ICWA, state courts have demonstrated an 
unwillingness to meaningfully consider the placement 
preferences established by the ICWA.
    In some respects, these developments parallel the conflict 
that preceded the Supreme Court's decision in Holyfield. State 
courts first applied the ``existing Indian family'' exception 
to avoid the Act's preference for tribal court adjudication of 
child custody proceedings. After the Supreme Court's decision 
in Holyfield, state courts followed the Act's dictates more 
closely, deferring to tribal forums. As Judge Monroe G. McKay, 
a member of the United States Court of Appeals for the 10th 
Circuit explained in 1991, state courts and non-Indians were 
initially apprehensive about tribal court jurisdiction over 
adoptions of Indian children by non-Indians. In practice, fears 
about tribal court jurisdiction turned out to be unfounded. As 
Judge McKay explained about one high-profile case: ``[t]he 
result reached by the Navajo Court * * * is more flexible and 
resolves more problems than I was accustomed to seeing in my 
many years of practice in adoption work, in the courts of 
Arizona, and in child custody matters in the divorce work which 
I did over the many years.'' \50\
---------------------------------------------------------------------------
    \50\ Tribal Courts Act of 1991 and Report of U.S. Commission on 
Civil Rights Entitled ``Indian Civil Rights Act,'' S. Hrng. 102-496, 
1991, page 9.
---------------------------------------------------------------------------
    Although no change in the statute's terms are needed to 
effect the Committee's intent, the Committee takes this 
opportunity to clarify Section 1915. Specifically, by creating 
a ``good cause'' exception, Congress did not intend to adopt an 
open-ended best interest approach in deciding whether the 
placement preferences should be applied. The Montana Supreme 
Court's recent decision best captures the Committee's views on 
this subject.

          We believe, however, that a finding of good cause 
        cannot be based simply on a [state court] determination 
        that placement outside the preferences would be in the 
        child's best interests. The plain language of the Act 
        read as a whole and its legislative history clearly 
        indicate that state courts are a part of the problem 
        the ICWA was intended to remedy. The best interests of 
        the child standard, by its very nature, requires a 
        subjective evaluation of a multitude of factors, many, 
        if not all of which are imbued with the values of 
        majority culture. It therefore seems ``most 
        improbable'' that Congress intended to allow state 
        courts to find good cause whenever they determined that 
        a placement outside the preferences of Sec. 1915 was in 
        the Indian child's best interests.\51\
---------------------------------------------------------------------------
    \51\ In re Adoption of Riffle, 922 P.2d 510, 514 (1996) (citing 
Holyfield).

    At the Committee's June 18, 1997 hearing, the U.S. 
Department of Justice testified in favor of S. 569. In its 
testimony, the Department explained that ``ICWA is a 
Constitutionally-valid statues that is closely tied to 
Congress' unique obligations to Indian tribes by protecting the 
best interest of Indian children and families while promoting 
tribal rights and self-government.'' The Department also 
explained that ``[a]s it exists and when amended by these 
proposed bills [S. 569 and H.R. 1082] it is our belief that 
ICWA is Constitutional.''
    The ICWA demonstrates Congress' longstanding recognition 
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.\52\ 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. As the United States Supreme 
Court has explained:
---------------------------------------------------------------------------
    \52\ 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) \53\
---------------------------------------------------------------------------
    \53\ 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.

                       Summary of the Provisions

    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 order transferring 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. In enacting S. 569, the 
Committee intends to ensure that tribes will be notified and 
will have the opportunity to participate in all voluntary child 
custody proceedings. The Committee intends that section 8 will 
establish time-frames for tribal participation with respect to 
two proceedings: the voluntary termination of parental rights 
and voluntary adoptions, however they are styled. Section 8 
limits 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 were 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 be expected to 
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 provision 
should ensure that Indian tribes will receive effective notice 
if an adoptive placement has ended. Finally, if an Indian tribe 
does not receive notice which compiles 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, good faith inquiry concerning the Indian 
identity of a child at 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 (i.e. good faith) 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 other wise 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. Likewise, the 
rights of the Indian child's extended family or others to 
intervene, or otherwise to be involved, are left to existing 
laws and court rules on standing are neither increased or 
diminished by this legislation.\54\
---------------------------------------------------------------------------
    \54\ See e.g., In Re J.R.S., 690 P. 2d 10 (Alaska Sup. Ct. 1984).
---------------------------------------------------------------------------
    The Committee intends that section 8 will require that an 
Indian tribe must include with any motion to intervene in a 
voluntary proceeding, a certification that includes a statement 
documenting the membership or eligibility for membership of the 
Indian child. Consistent with 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 Act applies to 
all Indian children who are subjects of voluntary placements or 
proceedings. 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 lack any statutory 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 constitute sufficient legal 
authority to authorize a state court, if in the court's 
discretion it wishes to do so, 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 sent 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 preadoptive 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 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. In situations where 
a child's Indian identity is uncovered after notice and 
placement and notice is provided within 10 days of the 
discovery, time limitations will be placed upon tribal 
intervention following such a late notice if 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.
    Adoption attorneys, state agencies, and others facilitating 
adoptions are expected to make adequate and good faith 
inquiries and/or investigations regarding whether a child is an 
Indian. In that regard, the BIA Guidelines for State 
Courts,\55\ (specifically section B.1.) provide helpful but not 
exhaustive guidance on circumstances which should lead 
attorneys and agencies to believe that a child custody involved 
in a child custody proceeding is Indian.
---------------------------------------------------------------------------
    \55\ 44 Federal Register 67584 et seq. (November 26, 1979).
---------------------------------------------------------------------------
    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 been made. 
Particularly in the case of an off-reservation birth to an 
unwed mother--which is 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 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 is made, 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 birth 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 many states, several states have 
explicitly recognized and successfully implemented a 
requirement that similar notice be provided in voluntary 
proceedings.\56\
---------------------------------------------------------------------------
    \56\ 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 encourage or facilitate 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.\57\ 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,\58\ which 
helped give rise to legislation to amend the Indian Child 
Welfare Act in this Congress, there were substantial 
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 indicated he was Indian on the original 
adoption information sheet, was informed by the 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. That attorney may face civil damages and professional 
discipline as a result of these allegations. The Committee 
intends to bring to bear against such behavior the sanctions of 
criminal law.
---------------------------------------------------------------------------
    \57\ The Committee notes that criminal penalties are employed in 
other contexts to ensure compliance with child custody procedures. See, 
e.g., Or Rev. Stat. 417.990 (1996).
    \58\ In re Bridget R., 41 Cal. App. 4th 1483 (2nd Dist. 1996).
---------------------------------------------------------------------------
    Placement preferences. Section 10 addresses the Act's 
placement preferences (section 1915 of the Act). Preserving the 
relationship between Indian children and their parents was of 
paramount importance to Congress in enacting the ICWA. Congress 
strove to provide parents with every substantive and procedural 
protection it could offer without sacrificing fundamental 
notions of tribal sovereignty or subjecting Indian children to 
unnecessary risks. Once the termination of the parent-child 
relationship was imminent, however, Congress created procedures 
and substantive standards that reflect ``a Federal policy that, 
where possible, an Indian child should remain in the Indian 
community, * * * and by making sure that Indian child welfare 
determinations are not based on a `white, middle-class 
standard, which, in many cases, forecloses placement with [an] 
Indian family.' ''\59\
---------------------------------------------------------------------------
    \59\ Holyfield, 490 U.S. at 37, quoting H. Rep. 95-1386, at p. 24. 
Significantly, the footnote accompanying this paragraph in the Supreme 
Court's opinion notes that this placement preferences are directed at 
state court placement proceedings involving ``nondomiciliaries of the 
reservation.''
---------------------------------------------------------------------------
    Application of the Act's placement preferences to voluntary 
adoptions, however, has resulted in widely varying 
interpretations by state courts and commentators. The source of 
this disagreement centers on section 1915(a). This provision 
establishes adoptive placement preferences in favor of a member 
an Indian child's extended family, another member of the 
child's tribe, or other Native Americans.\60\ State courts are 
bound by these preferences ``in the absence of good cause to 
the contrary.''
---------------------------------------------------------------------------
    \60\ By contrast, Section 1915(b) is concerned with foster care and 
preadoptive placements.
---------------------------------------------------------------------------
    This amendment is intended to clarify that, consistent with 
the Act's objectives and where appropriate, birth parents may 
express a preference regarding the placement of the child and 
that this express preference may form part of a court's 
determination that good cause exists to depart from the Act's 
placement mandates at the request of a parent or Indian child. 
The statutory preferences are not altered by this language and 
the burden of proof to show good cause for departing from them 
still rests with the party seeking the exception.
    The amendments contained in S. 569, including language 
regarding the expressed wishes of the birth parents, will 
continue to uphold the goals of the Act and will promote the 
best interests of Indian children. No single provision of the 
Act or of these amendments can be read in isolation and without 
the benefit of the context that gave rise to the ICWA or the 
objectives the Congress sought to achieve in enacting it, 
especially those recognized by the Supreme Court in Holyfield.
    As it relates to the placement preferences in the Act, the 
Committee views ``good cause'' as a matter that must be 
interpreted against the backdrop of these goals and objectives 
and given the totality of circumstances that are involved in 
any individual placement situation.
    Furthermore, where an individual within the placement 
preferences seeks to adopt an Indian child, the Committee 
believes that an evaluation of the applicant's qualifications 
is necessary to ensure that the proponents of the 
nonpreferential placement have in fact carried their burden of 
proving good cause to deviate from the placement preferences. 
In making such an evaluation, the Committee notes that section 
1915(d) defines the standards applicable for evaluating the 
preferred applicant.

                              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 child custody proceedings. The 
bill approved by this Committee is entirely consistent with, 
and in furtherance of, these same goals whichcontinue to be of 
vital importance to the well-being of Indian children, Indian families, 
and Indian tribes. The Committee has concluded that S. 569, 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. 569, the Committee is taking a measured and limited 
approach, actively crafted by representatives of both the tribal 
governments and the adoptive family community, to address what have 
become identified as the problems with how the ICWA functions in the 
context of voluntary adoptions.

                          Legislative History

    In the 104th Congress, the Committee held a hearing on June 
26, 1996, 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 I abstention, ordered the bill reported with the 
recommendation that the Senate pass the bill as reported. On 
September 26, 1996, S. 1962 passed the Senate by unanimous 
consent. No action was taken in the House on S. 1962 in the 
104th Congress.
    In the 105th Congress, S. 569 was introduced on April 14, 
1997. S. 569 largely tracks S. 1962. On June 18, 1997, the 
Committee held a hearing on S. 569 as introduced. Based upon 
testimony presented at the hearing, an amendment in the nature 
of a substitute was prepared by the Chairman of the Committee, 
Senator Campbell.

            Committee Recommendation and Tabulation of Vote

    In an open business session on July 30, 1996, the Committee 
on Indian Affairs, by voice vote, adopted the amendment in the 
nature of a substitute offered by Senator Campbell and ordered 
the bill reported to the Senate, with the recommendation that 
the Senate pass S. 569 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 1997'' 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 the exclusive jurisdiction it has 
lawfully acquired 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 make a conforming technical amendment 
conditioning an Indian tribe's existing right of intervention 
under 25 U.S.C. 1911(c) to the time limitations added by 
section 8 of the bill.

Section 4. Voluntary termination of parental rights

    Section 4 amends 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 proved 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 right 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). Assisting in the removal of a child from the 
United States in order to thwart the application of the Act is 
also prohibited. 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.

Section 10. Placement of Indian children

    Section 10 clarifies Congress' intent with respect to 
placement preferences expressed by birth parents. The amendment 
makes clear that the views of the birth parent may be part of a 
court's determination that ``good cause'' exists to deviate 
from the Act's preferences. Because courts are only to be 
guided by the birth parent's preferences after they finding (or 
determining) that it is appropriate to do so, it is imperative 
that courts review the circumstances surrounding this decision 
to ensure that it is the product of an informed, rational 
choice.

                   Cost and Budgetary Considerations

    The cost estimate for S. 569, as calculated by the 
Congressional Budget Office, is set forth below:

                                     U.S. Congress,
                               Congressional Budget Office,
                                   Washington, DC, August 19, 1997.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
reviewed S. 569, the Indian Child Welfare Act Amendments of 
1997, as ordered reported by the Senate Committee on Indian 
Affairs on July 30, 1997.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Justin 
Latus (for federal costs), Marjorie Miller (for the impact on 
state, local, and tribal governments), and Bruce Vavrichek (for 
the impact on the private sector).
            Sincerely,
                                          Paul Van de Water
                                   (For June E. O'Neill, Director).
    Enclosure.

               congressional budget office cost estimate

S. 569--Indian Child Welfare Act Amendments of 1997

    S. 569 would amend the Indian Child Welfare Act (ICWA), 
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. 569 would not affect 
direct spending or receipts, pay-as-you-go procedures would not 
apply to the bill.
    S. 569 contains both intergovernmental and private-sector 
mandates as defined in the Unfunded Mandates Reform Act of 1995 
(UMRA). CBO estimates that the costs of complying with these 
mandates would be well below the thresholds established by that 
act ($50 million for intergovernmental and $100 million for 
private-sector mandates in 1996, adjusted for inflation). The 
bill would impose no other significant costs on state, local, 
or tribal governments.
    In any action for the adoption of an Indian child or the 
voluntary termination of parental rights, S. 569 would require 
that a public or private agency provide written notice to the 
child's tribe within specified deadlines. Further, the bill 
provides that prior to placing an Indian child in foster care 
or adoption or terminating parental rights, a public or private 
agency must notify the child's parents of the applicable 
provisions of ICWA. Based on information provided by state 
officials, CBO estimates that public agencies would not incur 
significant additional costs as a result of these requirements, 
because most of these agencies would not have to make 
substantial changes to their procedures. Likewise, the total 
cost to private-sector entities of complying with these 
requirements would not be large.
    The bill would also limit or preempt the authority of both 
tribal and state governments in Indian adoption matters. In 
order to preserve its right to intervene in such a proceeding, 
a tribe would be required to provide written notice of its 
intent to intervene within specific time periods. To ensure 
that the tribe has adequate time to give such notice, the bill 
would preempt state laws by requiring that such proceeding be 
conducted only after a 30-day period following notification of 
the child's tribe. These provisions also would not entail 
significant additional costs for state, local, or tribal 
governments.
    The remaining provisions of S. 569 either do not impose 
mandates or are excluded from consideration under UMRA by 
section 4 of the act. That section applies to provisions that 
enforce the rights of individuals for due process.
    The CBO staff contacts are Justin Latus (for federal 
costs), Majorie Miller (for the impact on state, local, and 
tribal governments), and Bruce Vavrichek (for the impact on the 
private sector). This estimate was approved by Paul N. Van de 
Water, Assistant Director for Budget Analysis.

                      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. 569 will create only de minimis regulatory or 
paperwork impacts.

                        Executive Communications

    The Committee has received a letter in support for S. 569 
from the Department of Justice on July 28, 1997 and a letter of 
support for S. 569 from the Department of the Interior on July 
29, 1997, which letters are set forth below:

                   U.S. Department of the Interior,
                                   Office of the Secretary,
                                     Washington, DC, July 28, 1997.
Hon. Don Young,
Chairman, Committee on Resources,
House of Representatives, Washington, DC.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Chairman Young and Chairman Campbell: We are writing 
to express the Department of the Interior's (Department) 
position on H.R. 1082 and its companion bill, S. 569. The 
Department supports the enactment of H.R. 1082 and S. 569 for 
the following reasons.
    The study which led to the passage of the Indian Child 
Welfare Act (ICWA) in 1978 supports the proposition that an 
Indian child's tribe is in a better position than a State or 
Federal court to make decisions on matters concerning the 
relationship of an Indian child to his or her tribe. Moreover, 
the ICWA has preserved the cultural integrity of Indian tribes 
because it reestablished tribal authority over Indian child 
custody matters. The ICWA is the essence of child welfare in 
Indian Country and provides needed protections for Indian 
children who are neglected under our country's public child 
welfare system. The ICWA has fulfilled the objective of giving 
Indian tribes the opportunity to intervene on behalf of Indian 
children eligible for tribal membership in a particular tribe.
    Admittedly, there have been problems with certain aspects 
of the ICWA and those problems should be addressed to ensure 
that the best interests of Indian children are ultimately 
considered in all voluntary child custody proceedings. The 
provisions contained in H.R. 1082 and S. 569 reflect carefully 
crafted consensus amendments between Indian tribes seeking to 
protect their children, culture and heritage and the interest 
of the adoption community seeking greater clarity and certainty 
in the implementation of the ICWA. First, the amendments will 
clarify the applicability of the ICWA to voluntary child 
custody matters so that there are no ambiguities or 
uncertainties in the handling of these cases. Second, the 
amendments will ensure that Indian tribes receive notice of 
voluntary ICWA proceedings and also clarify what should be 
included in the notices. Timely and adequate notice to tribes 
will ensure more appropriate and permanent placement decisions 
for Indian children. Indian parents will be informed of their 
rights and their children's rights under the act, ensuring that 
they make informed decisions on the adoptive or foster care 
placement of their children. When tribes and extended family 
members are allowed to participate in placement decisions, the 
risk for disruption will be greatly reduced. While the 
amendments place limitations on when Indian tribes and families 
may intervene and when birth parents may withdraw their consent 
to an adoption, they protect the fundamental rights of tribal 
sovereignty. Furthermore, the amendments will permit open 
adoptions, when it is in the best interest of an Indian child, 
even if State law does not so provide. Under an open adoption, 
Indian children will have access to their natural family and 
cultural heritage when it is deemed appropriate.
    An important consideration is that upon a tribe's decision 
to intervene in a voluntary child custody proceeding, the tribe 
must certify the tribal membership status of an Indian child or 
their eligibility for membership according to tribal law or 
custom. Thus, there would be no question that a child is Indian 
under the ICWA thereby ensuring that tribal membership 
determinations are not made arbitrarily. Lastly, the amendments 
will provide for criminal sanctions to discourage fraudulent 
practices by individuals or agencies which knowingly 
misrepresent or fail to disclose whether a child or the birth 
parent(s) are Indian to circumvent the application of the ICWA.
    In summary, the tribally developed amendments contained in 
H.R. 1082 and S. 569 clearly address the concerns which led to 
the introduction of Title III of H.R. 3286 (104th Congress), 
including time frames for ICWA notifications, timely 
interventions, and sanctions, definitive schemes for 
intervention, limitations on the time for biological parents to 
withdraw consent to adoptive placements, and finality in 
voluntary proceedings.
    We want to express our grave concerns that the objectives 
of the ICWA continue to be frustrated by State court judicial 
exceptions to the ICWA. We are concerned that State court 
judges who have created the ``existing Indian family 
exception'' are delving into sensitive and complicated areas of 
Indian cultural values, customs and practices which under 
existing law have been left exclusively to the judgment of 
Indian tribes. Legislation introduced last year, including H.R. 
3286, sought to ratify the ``existing Indian family exception'' 
by amending the ICWA to codify this State-created concept. The 
Senate Committee on Indian Affairs, in striking Title III from 
H.R. 3286, made clear its views that the concept of the 
``existing Indian family exception'' is in direct contradiction 
to existing law. In rejecting the ``existing Indian family 
exception'' concept, the Committee stated that ``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.'' [Report 
104-335 accompanying S. 1962, 104th Cong., 2nd Session.]
    The Department of the Interior's position on the emerging 
``existing Indian family exception'' concept is the same as 
previously stated in the Administration's statement of policy 
issued on May 9, 1996. We oppose any legislative recognition of 
the concept.
    The Department's position is that the ICWA must continue to 
provide Federal protections for Indian families, tribes and 
Indian children involved in any child custody proceeding, 
regardless of their individual circumstances. Thus, the 
Department fully concurs with the Senate Committee on Indian 
Affairs' assessment and rejection of the ``existing Indian 
family exception'' concept and all of its manifestations. We 
share the expressed concerns of tribal leaders and a majority 
of your Committee members about continuing efforts to amend the 
ICWA, particularly those bills which would seriously limit and 
weaken the existing ICWA protections available to Indian tribes 
and children in voluntary foster care and adoption proceedings.
    The United States has a government-to-government 
relationship with Indian tribal governments. Protection of 
their sovereign status, including preservation of tribal 
identity and the determination of Indian tribal membership, is 
fundamental to this relationship. The Congress, after ten years 
of study, passed the Indian Child Welfare Act of 1978 (Pub. L. 
95-608) as a means to remedy the many years of widespread 
separation of Indian children from their families. The ICWA 
established a successful dual system that establishes exclusive 
tribal jurisdiction over Indian Child Welfare cases arising in 
Indian County, and presumes tribal jurisdiction in the cases 
involving Indian children, yet allows concurrent State 
jurisdiction in Indian child adoption and child custody 
proceedings where good cause exists. This system, which 
authorizes tribal involvement and referral to tribal courts, 
has been successful in protecting the interests of Indian 
tribal governments, Indian children and Indian families for the 
past eighteen years.
    Because the proposed amendments contained in H.R. 1082 and 
S. 569 will strengthen the Act and continue to protect the 
lives and future of Indian children, the Department fully 
embraces the provisions of H.R. 1082 and S. 569.
    The Office of Management and Budget advises that there is 
no objection to the submission of this report from the 
standpoint of the Administration's program.
            Sincerely,
                                               Ada E. Deer,
                               Assistant Secretary, Indian Affairs.
                                ------                                

                        U.S. Department of Justice,
                             Office of Legislative Affairs,
                                      Washington DC, July 29, 1997.
Hon. Ben Nighthorse Campbell,
Chairman, Committee on Indian Affairs,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: Thank you for the opportunity to provide 
the views of the Department of Justice on S. 569, and its 
companion bill H.R. 1082, which would amend the Indian Child 
Welfare Act of 1978.
    As the United States has rarely been party to litigation 
under the statute, the Department of Justice's experience with 
the Indian Child Welfare Act, 25 U.S.C. 1901 et seq. (``ICWA'') 
is limited. However, we have reviewed the bill in light of our 
experience with civil and criminal enforcement, the United 
States' commitment to supporting tribal self-government, and 
basic principles of statutory construction. We hope the 
following comments will be helpful to the Committee in 
considering the bill.
    The Department supports S. 569, H.R. 1082, and the 
important purposes of ICWA to promote the best interests of 
Indian children and the stability and security of Indian tribes 
and families. We support the companion bills because they would 
clarify ICWA's application to voluntary proceedings, establish 
some deadlines to provide certainty and reduce delay in custody 
proceedings, and strengthen federal enforcement tools to ensure 
compliance with the statute in the first instance. Also, the 
provisions for adequate and timely notice to Indian tribes and 
Indian parents in S. 569 and H.R. 1082 would increase the 
likelihood of informed decision-making by parties to the 
adoption or foster placement.
    The provisions in the proposed legislation amend ICWA in a 
manner that is both respectful of tribal self-government and 
conducive to certainty and timeliness in voluntary adoptions of 
Indian children. We understand that S. 569, and its companion 
bill H.R. 1082, reflect a carefully crafted agreement between 
Indian tribes and adoption attorneys designed to make Indian 
child adoption and custody proceedings more fair, swift, and 
certain.
    We appreciate the efforts that you, Chairman Young, and 
your respective Committees have made to propose amendments to 
strengthen ICWA. 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,
                                               Andrew Fois,
                                        Assistant Attorney General.

                        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 
                    proceeding

    (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 or domicile of the child.]
    (2) An Indian tribe shall retain exclusive jurisdiction 
over any child custody proceeding that involves an Indian 
child, notwithstanding any subsequent change in the residence 
or domicile of the Indian child, in any case in which the 
Indian child--
          (A) resides or is domiciled within the reservation of 
        the Indian tribe and is made a ward of a tribal court 
        of that Indian tribe; or
          (B) after a transfer of jurisdiction is carried out 
        under subsection (b), becomes a ward of a tribal court 
        of that Indian tribe.
          * * * * * * *

                           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 
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 or Indian custodian voluntarily 
        consents to a [foster care placement] foster care or 
        preadoptive or adoptive placement or to termination of 
        parental rights, such consent shall not be valid unless 
        executed in writing and recorded before a judge of a 
        court of competent jurisdiction and accompanied by the 
        presiding [judge's certificate that the terms] judge's 
        certificate that--
                  (A) the terms and consequences of the consent 
                were fully explained in detail and were fully 
                understood by the partent [or Indian 
                custodian.] or Indian custodian; and
                  (B) any attorney or public or private agency 
                that facilitates the voluntary termination of 
                parental rights or preadoptive or adoptive 
                placement has informed the natural parents of 
                the placement options with respect to the child 
                involved, has informed those parents of the 
                applicable provisions of this Act, and has 
                certified that the natural parents will be 
                notified within 10 days of any change in the 
                adoptive placement.
[The court shall also certify]
          (2) The court shall also certify that either the 
        parent or Indian custodian fully understood the 
        explanation in English or that it was interpreted into 
        a language that the parent or Indian custodian 
        understood.
[Any consent given prior to,]
          (3) Any consent given prior to, or within ten days 
        after, birth of the Indian child shall not be valid.
          (4) An Indian custodian who has the legal authority 
        to consent to an adoptive placement shall be treated as 
        a parent for the purposes of the notice and consent to 
        adoption provisions of this Act.
          * * * * * * *

                           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, as 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 section (c) shall be 
based on a good faith investigation and 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 
        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 sent a 
        notice of intent to intervene or a written objection to 
        the adoptive placement to the court or the party that 
        is seeking the voluntary placement of the Indian child, 
        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 sent a notice of intent to intervene 
        or a written objection to the adoptive placement to the 
        court or party that is seeking the voluntary 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 tribal 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.
          * * * * * * *

                           25 U.S.C. 1915(c)

    Where appropriate, the preference of the [Indian child or 
parent] parent or Indian child  shall be considered[:]. 
[Provided, That where] In any case in which a court determines 
that it is appropriate to consider the preference of a parent 
or Indian child, for purposes of subsection (a), that 
preference may be considered to constitute good cause. In any 
case in which a consenting parent evidences a desire for 
anonymity, the court or agency shall give weight to such desire 
in applying the preferences.
          * * * * * * *

                              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 knowingly and willfully--
          (1) falsifies, conceals, or covers up by any trick, 
        scheme, or device, a material fact concerning whether, 
        for purposes of this Act--
                  (A) a child is an Indian child; or
                  (B) a parent is an Indian; or
          (2)(A) makes any false, fictitious, or fraudulent 
        statement, omission, or representation; or
          (B) falsifies a written document knowing that the 
        document contains a false, fictitious, or fraudulent 
        statement or entry relating to a material fact 
        described in paragraph (1);
          (3) assist any person in physically removing a child 
        from the United States in order to obstruct the 
        application of this Act.
    (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.