95TH CONGRESS}HOUSE OF REPRESENTATIVES j

1

2dSession

REPORT

No.-1386

ESTABLISHING STANDARDS FOR 'i'HE PLACEMENT OF INDIAN
UHILDRI~N IN FOSTER OR ADOPTIVE HOMES, TO PREVENT THE
IlRE"\.KUP OF INDIAN FAMILIES, AND FOR OTHER PURPOSESJULY 24, 1!l78.-Committed to the Committee of the Whole House on the State of

the Union and ordered to be printed

Mr.

UDALL,

from the Committee on Interior and Insular Affairs,
submitted the following

REPORT
together with

DISSENTING VIEWS[To accompany R.R. 12533][Including the cost estimate of the Congressional Budget Office]

The Committee on Interior and Insular Affairs, to whom was referred the bill (I-LR. 12533) to establish standards for the placementof Indian children in foster or adoptive homes, to prevent the breakup
of Indian families, and for other pllrpOSCS, having considered the same,
report favorably thereon with an amendment and recommend thatthe bill as amended do pass.
The amendment is as follows:
Page 1, beginning on line 3, strike out all after the enacting clause
and insert-in lieu thereof the following:That this Act may be cited as the "Iridlnn Child Welfare Act of 1978".
SICC. 2. Recognising the special relationship between the United States and theIndian tribes and their members and the Federal responsibility to Indian people,
the Congress findse1) that clause 3, section 8, article I of the United States Constitution provides that "The Congress shall have Power*** To regulate Commerce***with Indian tribes "and, through this and other constitutional authority,
Congress has plenary power over Indian affairs;(2) that Congress, through statutes, treaties, and the general course of
dealing with Indian tribes, has assumed the responsibility for the protection
and preservation of Indian tribes and their resources;(3) that there is no resource that is more vital to the continued existence
and integrity of Indian tribes than their children and that the United States
has a direct interest, as trustee, in protecting Indian children who are membersof or are eligible for membership in an Indian tribe;

2(4) that an alarmingly high percentage of Indian families arc broken, up
by the removal, often unwarranted, of their children fl:Olll them by noutribal
public and private agencies and that an alarmingly ry.lgh percentage ~f s~chchildren are placed in non-Indian foster and adoptive homes and institutions; and. ,.
. . , .'"
(5) that the States, exercising their recogm,zed Jun~dlc.tJ,on ove~ Indianchild custody proceedings through administrativcund JlldlCl~1 bodies, haveoften failed to recognize the essential tribal relations of Indian pe,op]e andthe cultural and social standards prevailing in Indian cornmunruos andfamilies.
.
SEC, 3. The Congress hereby declares that it is the~ po!iey of this Natio~, m.
fulfillment of its special responsibility and legal obligat ions to the Amorican
Indian people, to protect the best interests of Indian children an~ to promote ~h,estability and security of Indian tribes and families by the establishment of J~I~I­
mum Federal standards for the removal of Indian children from their families
and the plucomcnt of such children in foster or ado'p~ive homes .which willrefI,eet
the unique values of Indian culture, and by providing for assistance to Indian
tribes in the operation of child and family service progrilllls,.
.. 'SEC, 4, For the purposes of this Act, except as may Lcepecificnlly provided
otherwise, the term(1) "child cusl ody proceeding" shall mean and include-s- .
,(i) "foster care placement" which shall mcal~ any action removing an
Indian child from its parent or Indian custodian for teml?Orarypla,cemerit in a foster horne or institution where the parent or Iridian cust~dIancannot. have the child returned upon demand, but where parentnl rights
have not ber-n terminated:. ,(ii) "termination of parental rights'{which ,'hal~ llIe~n any action
resulting in the termination of the parent-child relationship:(iii) "prrvidopt.ive placement." which shall m(:an ,the temporary pl~lce­mcnt of an Iridian child in a foster home or institution after the termination of parental rights, but prior to or in lieu of adoptive placement;. and(iv) "adoptive placement." which shall mean the permanent placement,of an Indian child for adoption, including any action resulting III a -nnal
decree of a d o p t i o n . .
'. . .
.' "Such term 01' terms shall not. include a placement based upon an act Wh1C~, If
committed by an adult, would be deemed a crime or upon an award, in a
divorce proceeding, of custody to one of the parents,·.. .
(2) "extt'nded family meml.ll'r" shall be as defined by the law or custom of
the Indian child's tribe or, in the abs~nee of such law 0,1' custom, ,shall l/p /'IH'J.., on who has J'eaehed the ago of eIghteen and ,,-h? IS the In~ban,ehlld s
grandparent, mmt or uncle, brother or sister, brother-m-l:1w or slster-m-law,liicee or ncphe',,-, first or sccond cuusin, or stepparent;.
,,(3) "Indian" n;eans any person who is a member of !,\!l Indwn tnl?e; .
(4) "Indinn child" llIeHDS any unmarried person ~\'ho.ls,llnderageeJghte~nand i;; either (a) a mt'mber of an Indian trihe or (b) lS elIgIble for me~nber~ll1p
in an Indian tribe and is t.he biological child of n, member of an IndIan tnbe;(5) "Indian ehild's trihe" means (a) th~ Indian tl:ibe in which an Ind!nnchild is It member or eligible for nwmheJ'shlp 01' (b~, l!l the case of an Ine~wnchild who is n, member of 01' eligible for membershIp In n:t0r? than one tnbe,
the Indian tribe with which the Indian child has the more slgmficnnt contracts;(,) "Indian custodian" means any Indian person wh? has legal custody ofan Indian child under trilml law or custom or under St.ate law or t.o whom
temporary physical earl', custody, and control has been transferred by theparent of such child;. , .
,(7) "Indian organization" means any group, assoeJa~lOn, partne~sh~p,
corporation, or other legal entity owned or controlled by IndIans, or a maJontyof who;;e members are Indians;.
.
(8) "Indian tribe" means any Indian tribe, banc~, ~abon, or other o!gamzed
group or communit~' of Indians recognized as .ehglble for th,,: ser":lces p.r0vided to Indians by the Secretary becau~e of t~C1r statusBs Indwns, ll1clud~ng.
any Alaska Native village as dpfined III sectIOn 3(1') of the Alaska NatIve
Claims Settlement Act (85 Stat. 688, 697), as amended;"(9) "parr'nt" means any biological parent or parents. of an. Ind.lan c~Jlc1
or any Indian person who has la,wfully adopted n.n Inehan chIld, meludmg
nrlopti0Tls under tribn.l law (II' custom. It does not Inc~ude the unwed father
where paternity hns not been acknowledged or establIshed;3, (10) "res~rvati,on" means Indian country as defined in section 1151 oftl~le 18, Unltod States Code. In any case where it has been judiciallv determmed that a r~servation has been ~lil~lillj8hcd or the boundaries disestliblished,
try.e ~e:m shall lncludo the ~ands WIthin the last recognized boundries of suchdlml~lsry.e~1 reservatlO~ prior to enact.ment of the statute which resulted in

the diminishmnnj, or dlscstn,blishment;(11) "Secretary" means the Sr-cret ary of the Iuterlor: and(12) "tribal cour~" n:tem~s a COUI;t ,\"ith jurisdiction' over child custodyl~roceedmgs and which IS either a Court of Indian Offenses, a court estabhshe.d ,and operated under the code (If custom of an Indian tribe or any otherudministratfve body of a tribe which is vested with aut.llllrih· over childcustody proceedings.
TITLE I-CHILD GCSTODY PHOCEEDINGS

SEC. 101. ,(a) An Indian tribe shall ha ve jurisdiction exclusive as to an v St nto
over, ~ny c1l:lld. custody proceeding involving an Indian child who resides 01' isdomlell.ed within ~he re;;e,rYation of such tribe, except where such jurisdiction isotherWIse vest~d m the State by existing Federal law. Where an Indian child ic;
a ,ward of, a tribal eo,urt, the Indian tribe shall retain exclusive jurisdiction notwithstanding the residence or domicile of the child.
'(?) In any State ,court .rroceedingfor the Iostor care placement of, or tcrrni~nt~~n o! parental ngh~s to, ~n ,Indi~m child not domiciled or residing within the
Iescr vat.ion of the Iridian child s tribo, t.he court, in the nbsence of good cause
to the co~tra.rY, shal.l transfer such prOf_'eeding to the jurisdiction of the tribe
absent,ob)eetlOn by CIt-her parent, upon the petition of either parent or the Indim~
custodl,an ~r the Indian ,child's tribe: Provided, That sueh transfer shall be subject
to declination by the tribal court of such tribe,(?) In any State court proceeding for the foster care placement of or termination of p~rental. rights, to, an Indian child, the Indian custodian of the childand the, Indian child's tnbe shall have a right to intervene at any point in theproceedmg,, (d) The United Fita!es, p,:er}' 8tate, P\'PJ'y territory O~' prossession of the United~t~t:~, and e:er:r Jndtan tnb,e shall give full faith and credit. to the public acts,
l,eCOI(1S, and judicial proceedings of nnv Indian tribe applicable. to Indian childcustody proccedmgsto the same extent that such ent.ities give full faith and credit
to ~he pUI~hc acts, recor.d,'3, and jusdicial proceedings of any other ontit.v,_ Sg~, l?~. (a~ In any J:1Voltl~1t.ary proc(',:ding i,n a~ S~ate 'court, where" the courtl,nO\\s 01, h~~ Jeason to know chat m,l In.chan chIld IS mvolved, the party sl'eking
the fosle~ ~,u e placement of, o~' tenllma!~on of paren~>al rights to, an Indian child~hal! notlf{, t~e parent or lI!dum eustU<1wn and the Indian child's tribe, byrpe:l~teI ed n,lau WIth ~·eturn n:eelpL reqllcsipd, of the pending proceeding;; and at 1herr
nght of lI1~erventlOn, If the identity or I"cat.ion of thp jJ8rent 01' Indian cllstodian~nd, the tnbe cannot be d"lermine.d, I'!ieh notiee shall be !:dven to the Seerf'tarv
m l~l~e mam~er, ~dlO shall 1~:J.ve fjfteer~ days after reeeipt t.e; provide the rpC(lli;;it'(~
notIce t? th," palent or IndIan custodwn and the tribe, No fo;;ter ca.re plaeenwnt
or termml;ltlOn of p~rental rights proceeding shall be held until at least. ten days
after receIpt of, notlce by the pnrent 01' Indian eustodian and the tribe 01' thl'~ecre,tary: P~ovuled, That the paren~ ?r Indian custodian or the tribe shall, uPO!;
Jequest, be g~an~ed.up :to, ~wenty addItIonal d~ys t? p~'epa!'e for sueh proceeding.
\b) ~n any ca,·e III whIC~ the court dete!'mlJ1es Illdlgcney, the parent. or Indiancustodmn slIa~1 ha:ve the ngh,t to court-appointed counsel in any removal, placement, or t~rmmatlOn l;>ro~eedmg. The court may, in it" discretion, appoint cmmsel
fOJ: the chIld upon a findlllg that such appuintment is in the best intere;;t of thechild. yYhere State law makes no provision for appointment of counsel in suchproceedmgs, the court shall promptly nntify the Secretary upun appointment of?ounsel, and the Secretary, upon certificatio~ of the presiding judge, shall pay
leasonable fees and expenses out of funds whICh mlt}' be appropriated purEUantto the Act of November 2, 1921 (42 Stat. 208; 25 U.S.C. 13).
(c) E.llch party to a foster care placement or termination of parental rights
proce~dll1g under. S~ate law involVing an Indian child shall have the right toe~amlJ~e aU reports 01' other documents filed with the court upon which any decisIOn WIth respect to such action may be based.
(d) Any: party seeking to effect a foster care placement of or termination ofpar,ental nghts to, an Indian child under State law shall satiSfy the court that
actIve efforts. have been made to provide remedial services and rehabilitative
programs deSIgned to prevent the breakup of the India.n family and that the~('efforts haYe proved unsuccessful.
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(e) No foster care placement may he ordered in such proceeding in the absenceof a determination, supported by clear and convincing evidence, includingtestimony of qualified expert witnesses, that the continued custody of the child by
the parent or Indian custodian is likely to result in serious emotional 01' physicaldamage to the child.
(f) No termination of parental rights may be ordered in such proceeding in theabsence of a. determination, supported by evidence he yond a reasonable doubt,
including testimony of qualified expert witnesses, that the continued custody ofthe child by the parent or Indian custodian is likely to result in serious emotionalor physical damage to the child.
SEC. 103. (a) Where any parent or Indian custodian voluntarily consents to afoster care 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 theterms and consequences of the consent were fully explained in detail and were
fully understood by the parent or Indian custodian. The court shall also certifythat either the parent or Indian custodian fully understood the explanation in
English or that it was interpreted into a Ianguage that the .parent or Indian custodian understood. Any consent given prior to, or within tendays after,birthof the
Indian child shall not be valid.
. '(b) Any parent or Indian custodian may withdraw consent to a foster careplacement under State law at any time and, upon such withdrawal, the child shallbe returned to the parent or Indian custodian.
(c) Iu any voluntary proceeding for termination of purentalrightsto, oradoptive
placement of, an Indian child, the consent of the parent may be withdrawn for
any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to: the parent.
(d) After the entry of a final decree of adoption of an Indian child in any State
court, the paront may withdraw consent thereto upon the grounds that consent
was obtained through Iraud or duress and may petition the court to vacate suchdecree. 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-StateIaw.
.
SEC. 104. Any Indian child who is the subject of any action for foster careplacement or termination of parental rights under State law, any parent or Indiun
custodian from whose custody such child was removed, and the Indian child'stribe mny petition any court of competent jurisdiction to invalidate such action
upon a showing that such action violated any provision of section 101, 102, andlOa of this Act.
SI'C. 105. (a) In any adoptive placement of an Indian child under State law, 1\
preference shnll be given, in the absence of good cause to the contrary, to a placement, with (1) a member of the child's extended family; (2) other members.of the
Indian child's tribe; or (3) other Indian families.
(b) Any child accepted for foster care or preadoptive placement shall be placedin the least restrictive setting which most approximates a family and in which his
special needs, if any, may be met. The child shall also be placed within reasonableproximity to his or her home, taking into account any special needs of the child.
In any foster care or preadoptive placement, a preference shall be given, in theabsence of good cause to the contrary, to a placement with-e(i) a member of the Indian child's extended family; ..
(ii) a foster home licensed, approved, or specified by the Indian child'stribe'(iii) an Indian foster home licensed or approved by an authorized nonIndian licensing authority; or(iv) an institution for children approved by an Indian tribe or operatedby
an Indian organization which has a program suitable to meet the Indianchild's needs.
.
.
(c) In the ease of a placement under subsection (a) or (b) of this section, if the
Indian child's tribe shall establish a different order of preference by resolution; theagency or court effecting the placement shall follow such order so long as theplacement is the least restrictive setting appropriate to the particular needs of thechild, as provided in paragraph (b) of this section; Where appropriate, the preference of the Indian child or parent shall be considered: Provided, That where aconsenting parent evidences a desire for anonymity, the court or agency shall give
weight to such desire in applying the preferences.

..(d) The standards to be applied in meeting the preference requirements of thissection' shall be the prevailing social and cultural standards of the Indian community in which the parent or extended family resides or with which the parent
or extended family members maintain social and cultural ties.
(e) A record of each such placement, under State law, of an Indian child shall bemaintained by the State in which the placement was made, evidencing the efforts
to comply with the order of preference specified in this section. Such record shallbe made available at any time upon the request of the Secrctnry 01' the Indianchild's tribe.
SEC. 10G(a) Notwithstanding State law to the contrary, whenever a final decree
ofadoption of an Indian child has been vacated or set aside or the adoptive parents
voluntary consent to the termination of their parental rights to the child, a blologieal parent or prior Indian custodian may petition for return of custody 111ld thecourt shall grant such petition unless there is a showing, in a proceeding subject
to the provisions of section 102 of this Act, that such return of custody is not in
the best interests of the child.
.
(b) Whenever an Indian child is removed from a foster care home OJ' institution
for the purpose of f.urther foster care. prcadoptive, or adoptive placeI~ent, suchplacement shall be in accordance with the provisions of this Act, except III the ease
where an Indian child is being returned to the parent or Indian custodian from
whose custody the child was originally removed.
SEC. 107. Upon application by an Indian individual who has reached the age ofeighteen and who was the subject of an adoptive placement, the court which entered
the final decree shall inform such individual of the tribal affiliation, if any, of theindividual's biological parents and provide such other information as may benecessary to protect any rights flowing Irom the individual's tribal relationship.
SEC. 108. (a) Any Indian tribe which bccume subject to St.ate jurisdiction
pursuant to the provision of the Act of August 15, 1953 (fl7 Stat. 588), [IS amended
b~' the Act of April 11, 19G8 (82 Stat. 79), or pursuant to any other Federal law,
may reassume jurisdiction over child custody proceedings. Before any Indian
tribe may reassume jurisdiction over Indian child custody proceedings, suchtribe shall present to the Secretary for approval n petition to reassume suchjurisdict.ion which includes a suitable plan to exercise such jurisdiction.
(b) (1) In considering the petition and feasibility of the plan of tribe undersubsection (a), the Secretary may consider, among other things:(i) whether or not the tribe maintains a membership roll or alternative
provision for clearly identifying the persons who will be affected by the rcnssumption of jurisdiction by the tribe;(ii) the size of the reservation or former reservation area which will beaffected by retrocession and reassuruption of jurisdiction by the tribe;(iii) the populntion base of the tribe, or distribution of the population on
homogeneous communities or geographic areas; and(iv) the feasibility of the plan in cases of multi-tribal occupation of a single
reservation or geographic area.
(2) In those cases where the Secretary determines that the jurisdictional
provisions of section 101(a) of this Act are not feasible, he is authorized to accept
partial retrocession which will enable tribes to exercise referal jurisdiction asprovided in section 101( b) of this Act, or, where appropriate, will allow them toexercise exclusive jurisdiction as provided in section 101( a) over limited community
or geographic areas without regard for the reservation status of the area affected.
(c) If the Secretary approves any petition under subsection (a), the Secretaryshall publish notice of such approval in the Federal Register and shall notify theaffected State or States of such approvul. The Indian tribe concerned shall reassume jurisdiction sixty days after publication in the Federal Tegister of noticeof approval. If the Secretary disapproves any petition under subsection (a), theSecretary shall provide such technical nssistnnce as may be necessary to enable
the tribe to correct any deficiency which the Secretary identified as a cause fordisapproval.
.
(d) Assumption of jurisdiction under this section shall not affect any action orproceeding over which a court has already assumed jurisdiction, except as may beprovided pursuant to any agreement under section 109 of this Act.
Sec. 109. (a) States and Indian tribes are authorized to enter into ngreemcnts
with each other respecting care and custody of Indian children and [urisdicton
over child custody proceedings, including agreements which may provide fororderly transfer of jurisdiction on a case-by-case busis and agreements which
provide for concurrent jurisdiction betwooen States and Indian tribes.

6. (b) Such ag~eements.may be revoked by either party upon one hundred and'eighty days wntten notice to the other party. Such revocation shall not affect any
action or proceeding ovnr which a court has already assumed jurisdictlcn, unlessthe agreement provides otherwise.
', SEC. 110. Wh~re any petitioner in an In?ian child custody proceeding before aState ~ourt has Improperly removed the child from custody of the parent or Indian'eu~todl~n or has Improperly rotained custody af tor a visit or other temporary
relinqulshment of custody, the court shnll decline jurlsdict lon over such petitionand shall forthwith return the child to his parent or Indian custodian unlessreturning the child to his parent or custodian would subject the child to a substantial and immediate danger or threat of such danger.
SEC. Ill. In any case where State or Federal law applicable to a child custody
proceeding under State or Federal law proevides a higher standard of protection
to the right" of the parent or Indian custodian of an Indian child than the rights
provided under this title, the State or Federal court shall apply the State or Federal
stuudurd.

SEC. 112. Nothing in this title shall be construed to prevent tile emergency removal of an Indian child from his parent or Indian custodian or the emergency
placement of such. child in a foster home or institution, under applicable State
law. in order to prevent imminent physical damage or harm to the child. The Stateauthority. offlciul, or agency involved shall insure that the emergency removal orplacement. continues only for a reaosnable time and shall expeditiously initiate achild custody proceeding subject to t.he provisions of this title,transfer. the, childto the jurisdiction of the appropriate Indian tribe, or restore' the child to theparent 01' Indian custodian, as may be appropriate.
. " . " .-'Sec. 11:3. None of the provisions of this title, except sectionHllf.a), shall.uffoot,a proceeding under State law for foster care placement, termina~iol~ .ofpai.cntal
right", preadoptive placement, or adoptive placement which' was 'initiated orcompleted prior to the enactment of this Act, but shall apply to any subsequent
proceeding in the same matter 01' subsequent proceodings.uffocting the custodyor placomont of the samc child.
. ...
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TITLE II-INDIAN CHILD AND FAMILY PIWGRAMS

Sj·:c. 201. (a) The Secretary is authorized to make grantsto Indian tribes andorguniznt.ions in the establishment and operation of Indian -'child and family
service programs on 01' ncar reservations and in the preparation and Implornentution of child welfare codes. Tho objective of every Indian child and family service
program shall be to prevent the breakup of Indian families and, in particular,
to insure that the permanent removal of an Indian child from the custody of his
parent or Indian custodian shall be a lnst resort. Such child and family service
programs may include, but are not limited to(1) a system for licensing or otherwise regulating Indian' foster andadoptive homes;. .
.,(2) the construction, operation, and mnintcnnnco .of.Tncilitles.Tor thecounseling and treatment of Indian families and for the ternpornrycustody ofIndian children'.'" -:(3) family a;sistance, including homemaker and home counselors, daycare, after-school care, and employment, recreational activities, and respite.
care:(4) home improvement, programs;.
.
(5) the employment of professional and other trained personnel to nl)sist
the tribal court in the disposition of domestic relations and child welfare

matters:(G) education and training of Indians, including tribal court judges and ..
staff, in skills relating to child and family assistance and service programs;(7) a subsidy program under which Indian adoptive children nrc provided
the same support as Indian foster children; and(8) guidance, legal representation, and advice to Indian. families involvedin tribal, State, or Federal child custody proceedings.
(b) Funds appropriated for use by the Secretary in accordance with this section may be utilized as non-Federal matching share in connection with funds provided under titles IY-B and XX of the Social Security Act 01' under any other
Federal financial assistance programs which contribute. to the purpose for whichsuch funds are authorized to he appropriated for use under this Act. The provision 01' posslhllttr' of assistance under this Act shall not he a basis for thedenial or reduction 01' any assistance otherwise authorized under titles IV-B
and XX of the Social Seeurit.y Act or any other federally-assisted program. For
purposes of qualifying for assistance under a federally-assisted program, ~ieensing
or approval of foster or adoptive homes or institutions by an Indian tribe shallhe deemed equivalent to licensing or approval by a State.
SEC. 202. The Secretary is also authorized to make grants to Indian organizations to establish and operate off-reservation Indian child and family service programs which may include, but are not limited to(1) n system for regulating, maintaining, and supporti1?-g Indi~n foster n:nd
adoptive homes, including a subsidy program under which Indian adoptive
children are provided the same support as Indian foster children;(2) the construction, operation, and maintenanee of facilities and services
for counseling and treatment of Indian families and Indian foster and adoptive children;(3) family assistance, including homemaker and h~n~c. counselors, c!ay care,after-school care, and employment, rccreutionnl activities, and respite care;and(4) guidance, legal representation, und advice to Indian families involvedin ehild custody proceedings,. ,.
81'0. 203. (a) In the establishment, operation, and funding of Indian child andfamily service programs, both on and off reservation, the Seeretnrv may enter
into agreements with the Secretary of Health, Education, and Welfare, an~ thelatter Secretary is hereby authorized for such purposes to use funds appropriatedfor similar programs of the Department of Health, Education, and Welfare:
Provided, That authority to make payments pursuant to such a~re()[~lCnts shallbe effective only to the extent and in such amounts ns may be provided III advanceby appropriation Acts.
(b) Funds for the purposes of this Act may be appropriated pursuant to theprovisions of the Act of November .2, ID2~ (42 Stat. 208), l~S amended.". "SF;C. 204. For the purposes of sections 20J ancl203 of this title, the term Indianshall inelude persons defined in section 4«(',) of the Indian Health Care Improvement Act of 1976 (90 Stat. 1400, 1401).
TITLE Ill-RECORDKEEPING, INFORMATION AVAILABILITY, AND
TIMETABLES

fh;c. 301. (a) Any State court entering a final decree <,11' order iii any .Indianchild adoptive placement after the date of enactment of this Act shaltprovide ~heSecretary with a copy of such decree or order together with such other informationas may be necessary to show. (1) the name and tribal affiliation of the child;(2) the names [md addresses of the biological parents;(3) the names and addresses of the adoptive p:-,rentsj and.
(4) the identity of any agency having files or information relatmg to such
adoptive placement.
Where the court records contain an affidavit of the blological parent or ~are~ts
that their identity remain confidential, the court shall include such ::lfi.davlt withthe other information. The Secretary shall insure that the confidentiality of suchinformation is maintained and such informution sha.ll not be subject to the
Freeoc!m of Information Act (80 Stat. :381).
(b) Upon the request of the adopted Indian child over the a~e of eighteen, theadoptive or foster parents of an Indian child, 01' an Indian tribe, the Secretaryshall disclose such information as may be necessary for the enrollment of nn
Indian child in the tribe in which the child may be eligible for enrollment or for
determining any rights or be1?-efits as:,.oeillted witI: that memb?rship. W~e.re th~
documents relating to such child contain an nffidavit from the biological p,llell;t ~lparents requesting anonymity, the Secretary shall ce!·ti!y to the Indian child ~
tribe, where the information warrnnts, that tho child s pare~ta~e and ?thClcircumstances of birth entitle the child to enrollment under the cntena establishedbv such tribe.
S·SEC. 302.(a)(I) Within six months from the date of this Act, the ecretaryshall consult with Indian tribes, Indian organizntions, and Indian interest groups
in the consideratlou nud formulation of rules and regulations to implement theprovisions of this Act.

89(2) Within seven months from the date of this Act, the Secretary shall present
the proposed rules and regulations to the Select Committee on Indian Affairs of
the United States Senate and the Committee on Interior and Insular Affairs of theUnited States House of Representatives.
(3) Within eight months from the date of this Act, the Secretary Shall publish
proposed rules and regulations in the Federal Register for the purpose of recervmg comments from interested parties.
(4) Within ten months from the date of this Act, the Secretary shall promulgate
rules and regulations to implement the provisions of this Act.
(b) The Secretary IS authorized to revise and amend any rules l111d regulations
promulgated pursuant to this section: Provided, That prior to any revisions oramendments to such rules and regulations, the Secretary shall present the proposed revision or amendment to the Select Committee on Indian Affairs of theUnited States Senate and the Committee on Interior and Insular Affairs of theUnited States House of Representatives and shall, to the extent practicable,
consult with tribes. orgamzuttons, and groups specified in SUbsection (b)(1) of
this section, and shall publish any proposed revisions or amendments III the Federal
Register not less than stxty days prior to the effeet.ive date of such rules andregulations in order to provide adequate notice to, and to receive comments from,other interested parties.

The wholesale separation of Indian children from their familieis isperhaps themost tr1!'giq anddestructive aspect of American. Indian
life toda.y.
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..,'. .•
Surveys of ptates~ith larg~Indian populations conducted by the
AssoC1atIO~ on American Indian Affairs (AAIA) in 1969 and again
III 1974 indicate that approximately 25-35 percent of all Indian children
are separated from their families and placed III foster homes, adoptive
homes, or institutions, In some States the problem is getting worse:
III Minnesota, one in every eight Indian children under 18 years of!,lge is living m.an adoptive home; and, in 1971-72, nearly one III every
four Indian children under 1 year of age was adopted.
The disparity III placement rates for Indians and non-Indians IS
shocking. In Minnesota, Indian children are placed in foster care orm adoptive homes at a per capita rate five times greater than nonIndian children. In Montana, the ratio of Indian foster-care placement
IS at least 13 times greater. In South Dakota, 40 percent of all adoptions made by the State's Department of Public Welfare since 1967?8 ar~ of Indian ehildren, yet Indians make up only 7 percent of thejuvenile population. The number of South Dakota Indian children
living I~ foster homes is per capita, nearly 16 times greater than the
non-Indian rate. In the State of Washington, the Indian adoption rate
IS 19, times greater and the foster care rate 10 times greater. In vVisconsin, the risk run by Indian children of being separated from theirparents IS nearly 1,600 percent greater than it is for non-Indian children. Just as Indian children are exposed to these great hazards, theirparentsare too.
The Federal boarding school and dormitory programs also contributeto the destruction of Indian family and community lifo. 'I'he Bureau
of Indian Affairs (BIA), in its school census for 1971, indicates that:34,538 children live in its institutional facilities rather than at home.
TIns represents more than 17 percentof the Indian school age population of federally-recognized reservations and 60 percent of the children enrolled in BIA schools. On the Navajo Reservation, about
29,000 children or 9.0 percent of the BIA sc~ool population in grades
1\..-12, live at boarding schools. A number or Indian children are also
institutionalized in mission schools, training schools, etc.
In addition to the trauma of separation from their families, mostIndian children in placement or in mstitutions have to cope WIth the
problems of adjusting to a social and cultural environment muchdifferent than their own. In 16 States surveyed in 1969, approximately
85 percent of all Indian children in foster care were living in nonIndian homes. In Minnesota today, .according ~o Sta~e figures, morethan 90 percent of nonrelated adoptions of Indian children are madeby non-Indian couples, Few States keep as careful or complete child~velfare statistics as Minnesota docs, but informed estimates by welfare officials elsewhere suggest that this rate IS the norm. In mostFederal and mission boarding schools, a majority of the personnel is
non-Indian,.
It is clear then that the Indian child welfare crisis IS of massive
proportions and that Indian families face vastly greater risks of
involuntary separataon than are typical of our society as a whole.

TITLE IV-PLACEMENT PREVENTION STUDY
SEC. 401. (a) It is the sense of Congress that the absence of locally convenient
day schools may contribute to the breakup of Indian families.
(b) The Secretary is authorized and directed to prepare, in oonsultntion withappropriate agencies III the Department of Health, Education, and Welfare, areport on the feasibility of providing Indian children with schools located near
their homes, and to submit such report to the Seleet Committee on Indian Affairsof the United States Senate and the Committee on Interior and Insular Affairs of
the United States House of Representatives within two years from the date ofthis Act. In developing this report the Secretary shall give particular consideration to the provisions of educational facilities for children in the olomentarv
grades.
.
SEC. 402. Within SIxty days after enactment of this Act, the Secretary shn 11
send to the Governor, Chief Justice of the highest court of appeal, and theAttorney General of each State a, copy of this Act, together with Committee
reports and an explanation of the provisions of this Aet.
SEC. 403: If any provision of this Aet or the applicabillty thereof is held invalid,
the remammg provisions of this Act shall not be affected thereby.

PURPOSEThe purpose of the bill (H.R. 12533), introduced by ]VIr. Udall etal.,' IS to protect the best mterests of Indian children and to promote
the stability and security of Indian tribes and families by establishing
munmum Federal standards for the removal of Indian children fromtheir families and the placement of such children in foster or adoptive
homes or institutions which will reflect the unique values of Indianculture and by providing for assistance to Indian tribes and organizations m the operation of child and family service programs.
BACKGROUND* * * I can remember (the welfare worker) coming andtaking some of my cousms and friends. I didn't know why
and I didn't question it. It was just done and it had always
been done * * *,2.
1 H'R. 125:13 WIlS introrluced. h{ Representatives Udall, Roncallo, Baucus, Bingham,of CllliforI)IIl, Pinihp Burton, Carr, Dellnms. Fraser, lIIlller of California,
RIsenhoover, Seiberling, Sta.rk, 'I'son gas, Vcnto, and Weaver. A similar hlll, S. 1214, hasueen approved hy the Senate.
2 Testtrnonv ,of Valan eia Thacker before Task Force 4 of the American Indian Polio'
Review Commission,~

B~OUIll, Burke

R.R. 1386--2

10

11

Standards
The Indian child welfare crisis will continue untilthe.standards fordefining mistreatment are revised. Very few Indian children are removed from their families on the grounds of physicalabuse. One studyof a North Dakota reservation showed that these.grounds were, ndvanced in only 1 percent of the cases. Another study of a tribe in the
Northwest showed the same incidence. The remaining 99 percent ,ofthe cases were argued on such vague grOtlll~Sas "neglect" or "~oClHI
deprivation" and on allegations of the omotionnldnmuge.the children
were subjected to by living with their parents. I ndi"ap:,<:l9m,mullltle s
are often shocked to learn that parents they regan[as,excellent caregivers have been judged unfit by non-Indian social workers.
-In judging the fitness of a particular Iamily.rmany social workers,
ignorant of Indian cultural values and SOCIal norms, make deCISlOns
that are wholly inappropriate in the context of Indian family life andso they frequently discover neglect or. abandonment where none exists.
For example, the dynamics of Indian extended families are largely
misunderstood. An Indian child may have scores of, perhaps more thana hundred, relatives who are counted as close, responslble>membersof
the family. Many social workers, untutored in the.waysofIndian Iamily life or assuming them to be socially irresponsible; considerleaving .
the child with persons outside the nuclear family as neglect mid thus
as grounds for terminating parental rights.
'
Because in some communities the social workers have.cinn sense,
become a part of the extended family, parents wi)l sometimesturnto
the welfare department for temporary care 01 their children, f'niling torealize that their action is perceived quite differently by non-Indians.
Indian child-rearing practices are also misinterpreted in evaluatl?g'a child's behavior and parental concern. It may appear that the childis running wild and thnt the parents do not care. 'What is labelled"permissiveness" may often, in fact, simply be a difl'erent but efJ'~ctlVe
way of disciplining children. BIA boarding schools are full of children
with such spurious "behavioral problems.". 'One of the grounds most frequently advanced for taking Indianchildren from their parents is the abuse of alcohol. However, thisstandard is applied unequally. In areas where rates of problem drinking
amonz Indians and non-Indians arc the same, it IS rure1yp-pphedngnin~t non-Indian parents. Once again cultu1'lll.binsesf1'eqUently
affect decisionmakinz, The late Dr. Edward P ..D02\lerofSantaClarll
Pueblo and other observers have argued thitt theni:are important
cultural differences in the use of alcohol. Yet, by and large, non-Indiansocial workers draw conclusions about the meaning- of acts or conduct
in ianorance of these distinctions.
- ... , -.
. 'The courts tend to rely on the testimony of socill,l,wo.rkers"yhp onenlack the trnininu and insizhts necessarv to measure the emptlona1.nsk
the child is l"llll""ning at l~me. In a. number of c;J.ses;'ihf.A:AIAhasobtained evidence fJ:'om competent psychiatrists w119, uftc~'examinin~
the defendants, have been able to contradict the allegations offered
b:r the social workers, Rejecting the notion that povert:y and cultural.
differences constitute social deprivation and psyr.,h()loglca;l a~>use, theAssociation argues that the State must prove that there 1S actual
physical or ernotionul harm resulting from the .acts qtthe parents.

The abusive actions of social workers would largely be nullified if
more Judges were themselves knowledgeable about Indian life und required a sharper definition of the standards of child abuse and nesrlect.
Discriminatory standards have made it virtually impossible for~llo:"tIndian couples to qualify as foster 01' adoptive parents, since they arc
based on middle-class values. Recognizing that in some instance;': it isnecessary to remove children from their homes, community leaders
argue that there are Indian families within tho tribe \\"110 coul~l provide
excellent care, although they are of modest means. While some
progress is being made here and there. the figm'es cited allow iudicnto
tha.t non-Indian parents continue to fumish'- almost all the fostc·J' nnd
adoptive care for Indian children.

:.".'

Dve process. The decision to take Indian children from their natural homes is,earned out WIthout due process of' law, For example
it is rare for either Indian children or their parents to be representee!
by counsel to OJ' .have the supporting testimony of expert witnesses.
, Many cases do not go through nil adjudicatory process at. all, since
the voluntary waiver of. parental rights .is :L device widely employed
by SOCIal workers to gam custodv of children. Because of the availability of the waivers' and because a great number of Indian parents
depend on welfare payments for survival, they arc exposed to thesometimes coercive arguments of welfare departments. In It recent.
South Dakota entrapment ease, an Irulinn parent in a time 0[' trouble
was persuaded to sign a waiver granting temporary custody to theState , only to fintl that this is EOW heing advanced as evidence of
neg:Jeet nnd grounds for the permanent termination of panutnll'ig-llb..·.
Itjs an unfortunate fact of life for many Indian parents that till'pl'lm~ry service agell(~'y to which thcv mlls~ turn for financial help also
exercises police powers over their Inrnily life and IS, most. Irequently,
the agency that initiates custody proceedings.
The conflict between Indian and non-Indian social systems operates
to defeat clue process. The extended family provides an example. Bysharing the responsibility of child rearing, the extended family tends tostrengthen the community's commitment to the child. At the same
tame, however, it diminishes the possibility that the nuclear family will
be able to mobilize itself quickly enough when an outside agency acts toassume custody. Because it is not unusual Ior Indian children to spend
considerable time away with other relat.ives, there is no immediate
realizution of what is happening-possibly not until the opportunity
for due process has slipped away.
III most cases,

Economic incentives, In some instances, financial considerations contribute to the crisis.
For example, agencies established to place children have an incentive
to find children to place.
Indian community leaders charge that federally-subsidized foster
care probrrams encourage some non-Indian families to stnrt "babyfarms" in order to supplement their meager farm income with foster
care paymentsand to obtain extrn hands for farmwork. The disparity
between the ratio of Indian children in foster care versus the number
ofIndinnchildrentha t are adopted seem, to bear thisout, For example,

12
in Wyoming in 1969, Indians accounted for 70 percent of-foster carec,~placements but only 8 percent of adoptive placements. Fostercate'payments usually cease when a child is adopted.
' ,In addition, there are economic disincentives. It will cost the Federal and State Governments a great deal of money to provide Iridian
communities with the means to remedy their situation. But over the
long: run, it will cost a great deal more money not to. At the very least,
us 11 first step, we should find new and more effective ways to spend
present funds.
Social conditions
Low-income, joblessness, poor health, substandard-housing, andlow educational attainment-these are the reasons most often cited forthe disintegration of Indian family life. It is not that clear-cut, Not
all impoverished societies, whether Indian or non-Indian, suffer fromcatastrophically high rates of family breakdown, ',,' 'Cultural disorientation, a person's sense of powerlessness, his loss of
self-esteem-these may be the most potent forces at work. They arise,in large measure, from our national attitudes aaneflected-in longestablished Federal policy and from arbitrary acts of GoverrpucIlt,,
One of the effects of our national pnternalism has b,eeh to,so alienate
some Indian patents from their society that theyab'andon their children at hospitals or to welfare departments ratherLhan entrust themto the care of relatives in the extended family. Another expression of
it is the involuntary, arbitrary, and unwarranted" separation offamilies.
-,.' ." 'I~ has already: been noted that the harsh living conditions in many
Indian communities may prompt a welfare department to make unwarranted placements anrl that they make it difficult for Indian people
to qualify as foster or adoptive parents. Ad. litionally,becl1tlsC these
conditions are often viewed as the primary CRuse offamily breakdown
and because generally there is no end to Indian-poverty int>ight,
agencies of government often fail to recognize immediate, practicalmeans to reduce the incidence of neglect or separation."",'As surely as poverty imposes severe strains on the ability of Iarniles
to function-sometimes the extra burden that is too much to bear-s-so
too family breakdown contributes to the cycle of poverty.
CONSTITUTIONALITYThe Department of -Iustice, in its reports to the committee ofFebruary 9 and May 23, 1978, raises questions regarding thf' constitutionality of certain of the provisions of the legislation. While thecommittee did not agree with the Department on these issues, certainchanges were made in the legislation which will meet some of the
Department's concerns. Otherissues remain, however. In view of theconstitutional doubts of the Department, the committee feels compelled to respond.
',
Svpremacu clauee
Clause 2 of article VI of the U.S. Con~titiltioti'i)rovitle~':"This Constitution, anrl the Laws of thc Tlnited States
which shall be m'1chin Pursuance thereof; and all Treaties
math, or which shall be made, under the AU~hol'ityofthe

13
United States, shall be the supreme Law of the Land; andthe Judges in every State shall be bound thereby j any Thingin the Constitution or Laws of any State to the Contrary
notwithstanding.
When Congress legislates pursuant to its delegated powers, conflicting State law and policy must yield, Gibbons v. Ogden, 22 U.S.
1 (1824); Hill v. Florida, ex -a. leVac/son, 825 U.S. 588 (1945); Nash v.
Florida Iiuiueiriol Comm., :389 U.S. 2::15 (1967); Lee v. Flor'ida, aD2
U.S. :378 (1968); Perez v. Campbell, 402 U.S. 637 (1971).
'
The Constitution, laws, and treaties of the United States arc as
much a part of the law of every State as its own local laws and constitution. Their obligation "is imperative upon the State judges, intheir official and not merely in their private capacities. From thevery nature of their judicial duties, they would be culled upon topronounce the law applicable to the case in judgment. They were not
to decide merely according to the laws or constitution of the State,
but according to the laws and treaties of the United States-'thesupreme law of the land.''' Martin. v. Hunter's Lessee, 1 Wheat. .304
(1816) j State courts have both the power and duty to enforce obligations arising under Federal law. Olafl'in v. Houseman, 23 U.S. 130(1876); Second Employer's' Liability Cases, 223 U.S. 1 (1912); Testa v,
Katt, 330 U.S. 386 (1947).
Plenary power oj Congress over Indiom. ajfa'irs
The question is then: "Does Congress have power to legislate us
proposed in the bill?" Clause 3, section 8, article I of the Constitution
provides:The Congress shall have Power * * * To regulate Commerce with foreign Nations, and among the several Stutes,
and with the Indian Tribes.
In an unbroken line of Supreme Court decisions, beginning withChief Justice John Marshall's decision in Worcester v. Georgia, 31
U.S. 515 (1832):(The Constitution) confers on Congress the powers of war
and peace; of making treaties, and of regualting commercewith foreign nations, and among the several states, and with
the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians.
They (Congress) are not limited by any restrictions on their
free actions.
And ending with United States v. Wheeler-U.S.-(March 22,1978):
Cl'here is an) undisputed fact that Congress has plenary
authority to legislate for the Indian tribes in all matters,
including their form of government,
The Supreme Court has, time find again, upheld the sweeping powerof Congress over Indian matters. The cases are far too numerous tocite, but two cases will serve to exemplify this position. In U.S. v.
Kagama, 118 U.S. 375 (1886) the Court said:
These Indian tribes are wnrds of the nation. They arecommunities dependent on the United States. Dependent
largely for their daily fooel. Dependent for their political

15

14
rights. They owe no allegiance to the States, andreceivl.dr6ht
them no protection, Because of the local ill feeling, the peopleof the States where they are found are often their deadliest
enemies. From their very weakness and helplessness, solargely due to the course of dealing of the Federalgovernment with them, and the treaties in which it-has beenpromised, there arises the duty of protection, and with it
the power. This has always been recognized by the Executive
and by Congress, and by this court, whenever the question
has arisen.
And in United States v. Nice, 241 U.S. 591 (1916), the Court held:
The power of Congress to regulate or prohibit trafficwith tribal Indians within a State whether upon or off
an Indian reservation is well settled * * *. Its sourceis twofold; first, the clause of the Constitution expressly
investing Congress with authority "to regulate Commerce* * * with the Indian tribes", and, second, the dependent
relation of such tribes to the United States.
It cannot be questioned that Congress has broad, unique powers with.
respect to Indian tribes and affairs, There is only one caveat: While
those powers may be plenary, the exercise may not be arbitrary. For
example, Congress may not take Indian propert)'" witlwlltjust c0D:lpensation nor may it establish a religion for huliariti'ibes:..
Plenaru power and child uielfare
The question then is: "Is the regulation of child custody proceedings
and he imposition of minimum Federal standards-nn. 'appropriate
exercise of Congress plenary power over Indian affairs?" < ' .... . ..
\Ve need only cite three Cl1SCS to lay the foundation.foi. the.power.of
COtE?T(,S'~ to kgislatc in this area. In U.S. v. IIoltidaY,70 U:S:407(lSGG), the Court snid :Commerce with foreign Nations, without doubt, meanscommerce between citizens of the United States and citizens'or subjects of foreign governments as individuals. And socommerce with Indians tribes means commerce: with; theindividuals composing those tribes.
..,.
Tn D:cJ,; v, o.s. 208 U.S. 340 (1908), the Court hdd:
As long as these Indians remain a distinctpe?pio,~vitha.ri
existing tribal organization, rccognizcd vby: the:politiGal·
department of the Government, Congress has power to say
with whom, and on what, terms, they shall deal * * ".'. .;;Knocpfler, in Legal Status of .American ~n(lian&!IisI!roperty~;:y:(1922),7 Ia, L.B, 2:32, stated: "Commerce WIth the Indian tribeshas "imbeen construed to mean practically every sort of intercourse with the:1~:
Indians either in the tribes or as individuals."'. (~Finally, the Maryland Court. of Appeals, in a case involving .the:;;aLt:r:lptcd.,:Hlo;)tlOll of n;,n Iridian chlld (Wakefield v. DlltleL~gh~L;i"
276 i\ld. 3..:>:3, 347 A. 2Ll 2.:.8 (1975)), stated:.' ..
We think it plain that chilc1-rearing is an "essential tribal
rclation" within * * * (the test of) W'iltiams v. Lee (358
U.S. 217 (1059)).
t

And again:'!' * ,*.(C)onsidering that there can be no zrcater threat to'essential tribal relations' and no greater infrinO'ement on theright ol'.~he *. * * tribe to govern themselves th~n to interferewith tribal control over the custody of their children we
agyeo wi~h the conclusion expressed in Wisconsin Poto:Vatorme8. (W~scons.m Potouxuomies v. Houston; 393 F. Supp. 719(197.3n that III determining subject matter jurisdiction insuch e~rcumst~~ces, the only, rational approa~h is to determme tne domicile of the Indian child. By usmz the Indianchild's domicile ll:s the State's jurisdictional basi~, the Indiantr1b~lS ~ffo~deJ significant protection from losing its essential
rights of childrearing and mamtenance of tribal identity.
. Even this State court recognized that a tribe's children are vital to
1tS integrity and future. Since the United States has the responsibility~,opr*ot:ct the integrity of the tr~hcs, we ~an say with the Kagama court,
there arises the duty of protection, and with it the power."
Geographic scope oj plenary power
Is the Congress limited to Indian lands or to the reservation in theexercise of its plenary power over Indian affairs? The answer is clearly"N"~. \ve neec1 on Iy cite
. one or two cases to support this,a . ;"'l.gam,conclusion.
In u..s'. v. Hollitlay, supra, the COUl't said:
If commerce, or traffic, or intercourse is carried 011 with an
IndiD.I1 tribe, or with a member of such tribe, it is subject tobe regulated by Congress; although within the limits of aState. The locality of the. traffic can Iuuie nothing to do withth~ power. (Ernpha~B ad.dccl.) The right to exorcise it inreference ~o m~y Indian tribe, or any person who is it memberof such tribe, 15 absolute, without reference to the locality ofthe truilic, or the locality of the tri be or the member of thetribe' with whom it is carried on.
'
In P('f'i'!:nv.U,.S" 2:32 U.S. 'lSi' (L91J), the Court held:
WcciHne, then, tothe objection that the prohibition in theact of 1.'W4 confer" an unnccessarilv extensive territory andis not limited in d urati on, and so 'transcends the power ofCr)~!!::'CS5. As the ,Power is incident only to the presence of the
Indians and their status as wards of the Government" itmust be conceded that it does not, ~)'O beyond what is reasonably essential to their protection, c~tld that, to be effective,
its exercise must not, be purelv arbitrary, bu t founded uponsome reasonable baSIS. * * * On the other hand, it mustalso he conceded that, in determining what is reasonably essential to tho protection of the J ndians Congress is invested
with ~\ wid e discretion and its "aetior~, unless j;nrely arbitrary,must ue uccepted and gLVcn full effect by the courts.
We cite a;!:ain U.S. v. Nice, supra: "The power of Congress to:,.rl~gullal;e or prohibit traffic with tribal Indians within a State whether
01' ojf an Indian reseroation is well settled * * *." (Emphasis

16

11

Membership and plenary power
The question' occurs, as raised by the Department of Justice in its
report: "Is the power of Congress limited, constitutionally, to only
those individuals who are formally enrolled as members of an Indian
tribe?" Agam, the answer is negative.
In 1931, Congress enacted the Indian Reorganization Act of June 18,
1934 (48 Stat. 988). Section 19 defined "Indians" as:'" * * all persons of Indian descent who are members of
any recognized Indian tribe now under Federal jurisdiction,
and all persons who arc descendants of such members who
were, on June 1, 1934, residing within the present boundaries
of any Indian reservation, and shall further include all otherpersons of one-half or more Indian blood.
Categories two and three of this definition are clearly not enrolled
members of a tribe, by definition: yet Cong-;ess conferred the rights
and benefits of the act upon this class of Indians, including the rightto preference in Federal employment in the Bureau of Indian Affairs
and the Indian Health Service. When the Supreme Court was called
upon to construe the constitutionality of the Indian preference sectionof the Indian Reorganization Act in the case of Morton v. Mamcari.
417 U.S. 535 (l974f, it was aware that Indians who were not enrolled
members of a tribe were made eligible for this preference by act of Congress, but did not strike the law down as invidiously discriminatory.
The reason it did not was because it was aware of its own past decisions with respect to congressional power over Indians not members ofa tribe, Congress may disregard the existing membership rolls anddirect that per capita distributions be made upon the basis of a newroll, even though such act may modify prior legislation, treaties, oragreements with the tribe. Stephens v, Cherokee Nation, 174 U.S. 445(1899). Thus, the Supreme Court in the case of Sizemore v, Brady, 235
U.S. 441 (1914), said:* * * Like other tribal Indians, the Creeks were wardsof the United States, which possessed full power, if it deemedsuch a course wise, to assume full control over them and theiraffairs, to ascertain who were members of the tribe * * "'.
In Federal Indian Law, at page 45 in note 10, it is said:
It has been held that Congress is not bound by the tribal
rule regarding membership and may determine for itself
whether a person is an Indian from the standpoint of aFederal criminal statute. United States v . Rogers, 4 How.
567 (1846).
In the very recent case of United States v. Antelope, 45 U.S.L.W.
4361 (April 19, 1977), the Supreme Court said:
It should be noted, however, that enrollment in an official
tribe has not been held to be an absolute requirement for
federal jurisdiction. '" * *Federal District Court Judge Battin, in Dillon v . Montana, (1978),ordered:2. That for purposes of applying this (Federal) exemption,
the class of "Indian persons" * '" * shall include persons
possessing the following qualifications:(a) that the personpossess some quantum of Indian
blood;(b) that the person be recognized as an Indian by thecommunity in which he or she lives, and that the putative taxpayer's wardship status has not been terminatedby the government;(c) that the person be an enrolled member of a federally recognized Indian tribe or otherwise eligible to berecognized as an Indian ward by the Federal Government.
(Emphasis added.)
If the courts have found that Congress has the power to act withrespect to nonenrolled Indians in the foregoing kinds of circumstances,
how much ,more is its P?\,:er to act to protect the valuable rights of aminor Indian who IS eligible for enrollment in a tribe? This minor,
perhaps infant, Indian does not have the capacity to initiate the formal,
mechanical procedure necessary to become enrolled m his tribe to takeadvantage of the very valuable cultural and property benefits flowing
therefrom. Obviously, Congress has power to act for their protection.
The constitutional and plenary power of Congress over Indians andIndian tribes and affairs cannot be made to hinge upon the cranking
into operation of a mechanical process established under tribal law,particularly with respect to Indian children who, because of theirminority, cannot make a reasoned decision about their tribal andIndian identity,
Supremacy clause versus States' rights
From the foregoing, it is clear that Congress has full power to enact
laws to protect and preserve the future and mtegrity of Indian tribes
by providing minimal safeguards WIth respect to State proceedings
for Indian child custody. The final question is, paraphrasing the
Department of Justice; "Does Congress have power to control theincidents of child custody litigation involving nonreservation Indianchildren and parents pursuant to the Indian commerce clause suffi cient
to override the SIgnificant State interest in regulating the procedure
to be followed by its courts in exercising jurisdiction over what istraditionally a State matter?"First, let it be said that the provisions of the bill do not oust theState from the exercise of its legitimate police powers in regulatmg
domestic relations.
The decisions of the Supreme Court will set to rest the principal
objection. It is appropriate to begin WIth the landmark case of
McCulloch v. Maryland, 17 U.S. 316 (1819), where the Court stated:
Let the end be legitimate, let it be WIthin the scope of theConstitution, and all means which are appropriate, which
are plainly adapted to that end, which are not prohibited,but consistent with the letter and spirit of the Constitution,
are constitutional.
In Brown v. Western Ry. c«, 338 U.S. 294 (1949), the Court said:
The argument is that while state courts are without
power to detract from "substantive rights" granted by
Congress '" * * they are free to follow their own rules of"practice" and "procedure" '" * *. A long series of cases
previously decided, from which we see no reason to depart,RR. 1386--3

~&

19

Il!~~~ it our ~~ty. ta C~~~:ru0 ~lJ.~ ~~lega,~ioris?f,~4i,~~oIjl.~,Oonclmion
Under the rules of the House, this committee has been charged with
the initial responsibility in i~plementing. the plenary power over,and responsibility .to, the Indians and Indian tribes, In the exerciseof that responsibility, the committee has noted a growing crisis with
re~pect tothebreakup ,of Indian families and the placement of Indianchildren, at a:n.a~aImmg l:ate, WIth non-Indian foster or adoptive
homes, Contributing to this J>roblem has been the failure of State
officials, agenCle?, and proce ures t? take into account the special
problems and CIrcumstances of Indian families and the lezitimate
mte~est of the Indian tribe in preserving and protecting th; Indian
famIly: as the wellspring of its own futur;'b.
WhIle the, committee does n?~ feel that i.t is necessary or desirable
to oust the States of their traditional jurisdiction over Indian children
falling within then' geographic limits, it does feel the need to establish
mI.mmum Federal standards and procedural safesruards in State Indianchild custody proceedings designed to prote~t the rights of the childas an Indian, the Indian family and the Indian tribe.

plaint ourselves in order to determme whetherpet~1;.\Onerhal'>; been denied a right of trial granted him hy Co.ngress.
This federal right cannot be defeated by forms of local practioe, * * * Strict local rules of pleading cannot be used to
impose unnecessary burdens upon rights of recovery authorized by Federal laws.
In Dice v. Almm, C.Y.Y. R.R. c«, 342 U.S. 359'(i952); tneCourt
held:
Congress * * * granted petitioner a right "'-**. Statelaws are not controlling in determining what the incidentsof this Federal right shall be."Chief Justice Holmes, in Dooie. v. Wechsler, 263 U.S; 22 (192:3),
put it succinctly:
Whatever springes the State may set for those who areendeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is
not to be defeated under the name of local practice.
We will quote merely two other cases to support the proposition
that Congress may, constitutionally, impose certain procedural bur- .
dens upon State courts in order to protect the substantive rights ofIndian children, Indian parents, and Indian tribes in State court proceedings for child custody.
The Court, in American Railway Express Co. v. Levee. 263 U.S.
19 (1923), held that:
The laws of the United States cannot be ev~cled'by,theforms of local practice * * *. The local rules applied as to theburden of proof narrowed the protection that the defendant
had secured (under Federal law), and thereforecoutni.vened
the law.
And finally, in an extensive quote from the landmark decision of
the Court in Second Employers' Liability Cases, 223 U:S~ 1(1912),
we examine the duty of State courts, otherwise having jurisdiction
over the subject matter, to enforce Federal substa:p;tije,,'rigp,ts,:.
We come next to consider whether rights'~~ish{g£r~Ill
congressional act may be enforced, as of right, in the courts of
the States when their jurisdiction, as prescribed by local law,is adequate to the occasion * * *. (The State courtlw~s ,ofthe
opinion that it could decline to enforce the Federal right) "because * * * it would be inconvenient and cOnfu(>iIJ,gJoI;thesame court, in dealing with cases of the some general-class', toapply in some the standard of right established by ;congressional act and in others the' different standards l'eGognizedby the laws of the State. * * * It never has been-supposed thatcourts are at liberty to decline cognizance of cases Jllerely b€'r
cause the rules of law to be applied in their adjudication are.
unlike those applied in other cases.
." 'We conclude that rights arising under the (Federal) actin
question may be enforced, as of right, in the courts of theStates when their jurisdiction, as prescribed by local law, isadequate to the occasion.

SECTION-BY-SECTION ANALYSISAs amended by the committee, the legislation completely rewrites
S. 1214 8S passed .by the Senate. In addition, the amendment in thenature of a s~lbstitute for H.R. 12f?:33, as further amended, differs
significantly f~om H.R.. 125:3:3 as introduced. The. following is asection-by-section analysis of the bill as reported WIth appropriate
explanations,
Section 1
Section 1 provides that the bill may be cited as the "Indian Child
Welfare Act of 1978".
Section. 2

Section 2 contains congressional findings. As amended, it lays thefoundations for the power and responsibility of the Congress to legislate
ill the field of Indian child welfare.
Section 3
Section 3 contains a congressional declaration of policy. As amended
the sectJ(~n makes clear tha~ the underlying principle of the bill is i~
the best mterest. of. the .Indiun child. However, the committee notesthat this Iegal principle IS vague, at best. In a footnote on page 8:35 in
the deCISIOn of Smith. v, OFFER, 431 U.S. 820 (1977), the Supreme
Court stated:
Moteover;)udg~s t?,O may find it difficult, in utilizing
vague standards like the best mterests of the child" toavoid decisions resting on subjective values.",
SECTION 4

Section 4 defines various terms used in the bill.
Paragraph (l) defines the term ."child custody placement" bydefinmg four discrete legal proceedings included within the term.
S. ~214 and H.R. 12533.. as introduced, used the term "placement"
which proved to be l1mbIguo~s WIth respect to the various provisions

20of the bill. The terms may not be current in the Iezal . lexicon ofdomestic relations and might have sO,me differento~overlapping~eamng in normal usage. The terms are mtended to have the meaning
gwen to them m the paragraph.
,'.',
' ,
Pnmgraph (2) defines the term "extended filmilymember?'~Theconcept of the extended family maintains its vitality and strenzth in
the Indian community. By cu~tom and tradition" if not nec~ssity,
members of, the extended family have definite responsibilities andduties in assl?tmg in childrearing, Yet, many non-Indianpublic andprivate agencies have tended to view custody of an Indian child by amember of the extended family as prima facie evidence of parental
neglect, It should be noted that the concept was notunknownin the
non-Indian world. Justice Brennan, in hisconcurrina opinion in
11100re v. East Cleveland, 431 U.S. 494, 508 (1977), notel
In today's America, the "nuclear family'; is the pattern
so often found in much of white suburbia *.' * * ,The
Constitution cannot be interpreted, however, to ,j:,;)leratethe
Imposition by government upon the rest of us white suburbia's ,pr,~ference in pa~terns of family living. The. "ex~e~q.7"
ed family * * * remains not merely still a :rervasnTe)IvIllg
patte~n, but under goad of brutal economic necessity, apromment pattern-s-virtually a means of survivial-e-forlarg-e numbers of the poor and deprived minorities of QUI'SOCIety.
Paragraph (3) defines "Indian" as any person who is a memberof an Indian tribe.
Paragraph (4) defines, "Indian child." The committee rejects the useof, the ,tei'm "merely" by the Department of Justice to qualify theeligibility of an Indian to be a member of. a~ Indian tribe, particularlyWith r~spe.ct to a minor. Blood relationship IS the very touchstone of aper~on s right to share in the cultural and property benefits of an
Indian tribe, "Ve do note that, for an adult Indian there is an absoluteright of expatiration from one's tribe. U.S. ex r~z.. Standing Bear v.
Crook, 25 Feci. Cas. No. 14891 (1879). However, this right has no
relevance to an. Indian child who, because of his minority, does nothave the capacity to make a reasoned decision about exercising his
right to enroll in his tribe,. ' , '. .'.',.
Paragraph (5) defines "Indian child's tribe." It is assumed that theappropriate official can make a reasonable judgml'lIlt)iRoU,t which
Indian tnbe the Indian child has the more siznificant contacts in cases
where the child is eligible for membership i; more than. one tribe.
Paragraph (6) defines "Indian custodian." Wheretlieeustodyofan~nchan child IS lodged WIth someone other than the parents underformal custom or law of the tribe or under State)!1)V,Tlo. problem
an"e~. But, because of the extended family concept inth,erlIrdia,ncommunity, parent~ often transfer physical custody ofthe 'Indian child to
SUC~l extended family member ~m an informal hasis, often for extended
periods of time and at great distances from the parents. While such acustodian !Day not have rights ,under State law, they do have rights
under Indian custom WhICh this bill seeks to protectjjncluding theright to protect the parentalinterests of the parents.
' ". '"
Paragraph (7) defines "Indian organization".
.,',..
Pnrnvrauh (R) defines "Indian tribe".

Paragraph (9) defines "parent". It should be noted that the lastsentence IS not meant to conflict with the decision of the Supreme
Court in Stanley v. Illinois, 405 U.S. 645 (1972).
Paragraph (10) defmes the term "~eservation". For the limited purpose of jurisdiotion over Indian child custody proceedings, the lastsentence of the paragraph addresses and varies the holdin~ in casessuch a~ DeOoieai,t v. District Court, -120 U.S. 425 (1975), and Rosebudv: [{ne~p, 97 S. Ct. 1361 (1977).
Paragraph (11) defines "Secretary" as the Secretary of the Interior.
Paragraph (12) defines "tribal court".
Section 101
Subsection (a) provides that an Indian tribe shall have exclusive
jurisdiction over child custody proceedings where the Indian child isresiding or domiciled on the reservation, unless Federal law has vested
that jurisdiction in the State. It further provides that the domicile ofan Indian child who is the ward of a tribal court is deemed to be that of
the court, which is generally in accord with existing law. The provisions on exclusivetribal jurisdiction confirms the developing Federal
and State case law holding that the tribe has exclusive jurisdiction
when the child is residing or domiciled on the reservation. H'isGunsin
Potouxuomiee v. Houston; 393 F. Supp. 719 (1973); Wakefield v. Little
L~ght, 276 Md. 333 (1975); In re Matter of Greybull, 543 P. 2d 1079
(1975) ; Duckliead v. Anderson et al., Wash. Sup. Ct., November 4, 1976.
Subsection (b) directs a State court, having jurisdiction over an
Indian child custody proceeding to transfer such proceeding, absent
good cause to the contraryvto the appropriate tribal court upon the
petition of the parents or the Indian tribe. Either parent is ziven theright to veto such transfer. The subsection is intended to I\el'mit aState cO~lrt to apply a modified doctrine of forum non conveniens, inapprop~lUte cases, to insure that the rights of the child as an Indian,
the Indian parents or custodian, and the tribe are fully protected.
Subsection (c), for purposes of State proceedings for foster careplacement or termination of parental rights, confers a right of intervennon upon the Indian custodian and the Indian child's tribe. The
committee is advised that the parents would have this right in any
event.
Subsection (d) provides that the public acts, records, and judicial
proceedings of an Indian tribe with respect to child custody proceedmgs shall be given full faith and credit by other jurisdictions to thesame extent that such jurisdictions extend full faith and credit inother circumstances.

Section. 102
Subsection (a) requires that, in an involuntary proceeding in State
courts with respect to an Indian child, the moving party must provide
certain notices to the parent or Indian custodian lmd the tribe. In lieu
notice to the Secretary of the Interior is provided in cases where thelocation ofthe individual or tribe cannot reasonably be determined.
The committee expects that the Secretary would make diligent efforts
to-relay such notice to the parent, custodian, and/or tribe. 'I'he subsccnon was amended to provide that the court would require such noticewhere it~ad actual or constructive knowledge of the Indian affiliation.
of the child.

Subsection (b) provides that an indigent parent or.Indiancustodian:shall have a right to court-appointed counsel in any involuntary State'proceeding for foster care placement or terminationofparental-rights.
Whet"l State law makes no provision for suchappointment, the Secretary is authorized, subject to the availability of funds, to pay reasonable expenses and fees of such counsel. In adopting this amendment,
the committee notes with approval the decision of th~ U:S. District
Court. for the Southern District of Florida in Davis s: Page, 442 F.
Stipp. 258 (1977), wherein the court held:. ._Without benefit of counsel, Hilary Davis wnsIittle-iiiore than a spectator in the adjudicatory proceeding;.Shil was
ignorant of the law of evidence, and of the substantive law
governing dependency proceedings. She sat silently throughmost of the hearing, and fearful of antagonizing the social
workers, reluctantly consented to what she believed would be
the placement of her child with the state fOl'af(=iw weeks.
(p. 260.), , _..' •.
'.
The right to the integrity of the family is amongthe.most.
fundamental rights under the Fourteenth Amendmentv.fjr,
261.).
.'The parent's interest in the custody and companionshipof his child and the grievous nature of the loss which accompanies interference with that interest suffice to mandate
the provision of counsel under a balance of interest test without further inquiry * * *. (T)he right to counsel inevitably
emerges as an element of procedural due process. (p. 263.)
Subsection (c) provides that each party to a State court proceeding£01' foster care or termination of parental rights shall have a rightto examine relevant documents filed with the court upon which it
may base its decision. The committee was advised that, in manycases; Indian parents or custodians have been, practically. denied theright.
LSllbsection (d) provides that a party seeking foster care placement or
termination of parental rights involving an Indian child must satisfy
the court that active efforts have been made to provide assistancedesigned to prevent the breakup of Indian families. The ,committee isadvised. that, most State Jaws. require. public .o~ private, age~ci~s i11volved III child placements to resort to remedial measureapriorto
initiating' placement or termination procMdiiJ:gs;";l)ut- -that -. the~eservices --are rarely provided. This subsection imposes a Federal req ui;ement. in that regard with respect t? Ind.ianchildr~na~d families.
Su bsections (e) and (f) es tablish evidentiary steiidardsfor .fost~rcare placement or termination of parental rights. As introduced, H.R.
125:3:3 required a "beyond a reasonable doubt" steridard-forrboth
actions. While the committee feels that the removal 6fachild' fromthe parents is a penalty as great, if not greater,' thana'criminal
penalty, it amended the bill to reduce the standard t? "clear andconvincing" in the case of foster care where parental rights are notterminated. The phrase "qualified expert witnesses"is meant to apply
to expertise beyond the normal social worker qualifications.

&ction 103
t Subsection (a) provides that consent to foster care placement or. er~matIOn of parental rIghts, m.us~ b.e executed in writing before aJUd.",e of a court of competent JUrISdICtIOn and that the judge must be
satIsfied. the consequences of such consent was fully understood by theparent. or custodinn. \Vhere the judge determines the parent or~u~to(han does not have ~ sufficient con~'mand of the English language,
It should be lllterpreted into a language such person does understand.
~h~ comrmttes does not intend tl~a~ the execution of the consent neede !~ ope~ court where, confidentIahty IS requested or indicated.
S'lbsectIOn (b) permits a parent or Indian custodian to withdraw
co~sent to. a foster care placement at any time.
.
SubsectIOn (c~ authorizes a parent or Indian custodian to withdraw
con~ent t~ termmatlO,u of parental rights or adoptive placement of anIn(!wn child at any time prIOr to the entry of a final decree.
Su~sectlOn (d) l;luthOI:I;>.:es the setting aside of a final decree of
adoption of an Iridian child upon petition of the parent upon grounds~hl.t consent thereto was obtained through fraud or duress. This right!S imito.l to 2 years after entr:y- of the decree, unless a longer period IS provided under State law. Wlth,respect to subsections (b), (c), and(d), ,the ,comml~tee notes that nothing ~Il those subsections prevents an~P~)l 0prI.ate pal ty o~ agency from msututing an involuntary proceedmg subject to section 102, to prevent the return of the child but
does not WIsh to be understood as routinely inviting such actions.
Section. 104104 authorizes .the c~lild, parent, or Indian custodian, or.. theSection
tribe to Il!-0ve to set aside any foster care placement or termination"'o.f parental nghts on the grounds that the riahts secured under secLtions 101, 102, or 103 were violated.
Section 105

Section :105, as a, whole, cont,empIutes those instances where theparental,l'lghts of the Indian parent has already been terminated.
The sectlO!l seeks to protect the rights of the Indian child as an Indianan~l the rights of, the Indian community and tribe in retaininz its
chIldren III Its SOCIety.
t>
SII?section (a) provides that, i~ the absence of good cause to the
COll!,I ary, ,a preference shall be gn:-en to adoptive placement of an
I~~Jan child with the ~xtepd~d family: 11 member of the child's tribe;
01 another Indian family. ThIS subsection and subsection (b) establish~ Federal policy that, where possible, an Indian child should remain
Ill. the Indian comIl!-ulllty! but. IS not to be read as precluding theplace~ent. of an IndIan child wItl.I a,non-Indian family.
Subsection (b) establishes a similar preference for foster care or
preadoptive placements.of an Indian child. The language was amended
to conform to language in H.R: 7200 of this Congress relative to fostercar~ and adoptive placements m the Ieast restrictive settings.
Subsection (c) provides that the tnbe may establish a different
order of preference which WIll be followed in lieu of the Federal
standards as long as suchorder is consistent with the least restrictive
setting standard .m subsection (b). Where appropriate, the preference

25of the child or parent shall be considered and a request for anonymityof a consenting parent shall be given.weightin applying the p~efer.
ences. While the request for anonymity should be given weight indetermining if a preference should be applied, it is not meant to out.
weigh the basic right of the child as an Indian.
'.'Subsection (d) provides that the standards to be used in meetmg
the preference shall be those prevailing in the relevant. Indian. community, All too often, State public and private agencies, in determining whether or not an Indian family IS fit for foster care or adoptive
placement of an Indian child, apply a white, middle-class standard
which, in many cases, forecloses placement with the Indian family.
Subsection (e) requires the State to maintain records showing what
efforts have been made to comply with the preference standards ofthis section and to make such records available to the tribe find
Secretary.
Section 106
Subsection (a) authorizes a biological parent of an Indian child topetition for the return of the child when a previous adoption of suchchild fails. The child shall be returned to the parent upon such petition, unless there is a showing, III a proceeding subject to the prOVIsions of section 102, that such return would not be in the best interestsof the child.
Subsection (b) provides that when an Indian child is being removed
from a foster care home for purposes of further foster care placement,
preadoptive placement, or adoptive placement, such further placement
shall be subject to the provisions of this act, unless the child is being
returned to the parent or Indian custodian.
Section 107
Section 107 confers a right upon an adult Indian, who was the subject of adoption, to secure necessary information from the court which
entered the decree to enable the person to protect and secure any
rights he may have from his tribal affiliation. There appears to be a
growing trend in State law, supported by developing psychology, thatan adopted individual has an inherent right to know hIS genealogicalbackground. However, this section and section 301 are not aimed atthat right. These provisions are aimed at different, but no less valuable
rights. One, these provisions will help protect the valuable rights an
individual has as a member or potential member of an Indian tribe
and any collateral benefits which may flow from the Federal Government because of such membership. Two, these provisions will help
protect the rights and interests of an Indian tribe in having its children
remain with or become a part of the tribe.
Section 108
Subsection (a) authorizes an Indian tribe, which became subject
to State jurisdiction under Public Law 83-280 or any other Federallaw, to reassume jurisdiction over child custody proceedings upon
petition to the Secretary of the Interior including a suitable plan.
Subsection (b) authorizes the Secretary, in considering a petition
for reassumption, to take into consideration various factors affecting
the exercise of such jurisdiction, including membership rolls, size ofreservation or former reservation, and population base. Depending on

such. circumstances, the Secretary is given the flexibility to authorize
partial retrocession based upon, the referral authority under section~01 (b) 0.1' to ,lImIt the geographic scope of the full exercise of 101 (a)[urisdiction. I'he subsection was adopted as an amendment in orderto take into consideration special circumstances, such as those occurring III Alaska and Oklahoma.
Subsection (c) provides for publication of notice of reassumption by
the Secretary III the Federal RegIster and for the effective date of suchreessumption.
Subsection (d) provides that reassumption shall not affect ongoingproceedings at the time of reassumptaon unless provided for III anagreement under section 109.
Section 109
Section 109 authorizes Indian tribes and States to enter into mutual
agreements or compacts with respect to jurisdiction over Indian childcustody proceedings and related matters. It also provides for revocation of such agreements by the parties.
Section 110
Section. 110. establishes a "clean hands" doctrine with respect topetitions in State court for the custody of an Indian child by a person who Improperly has such child in physical custody. It is aimed atthose ~ersons who Improperly secure or Improperly retain custody ofthe child WIthout the consent of the parent or Indian custodian and
WIthout the sanction of .law. It is intended to bar such person fromtaking adva~tage o~ their wrongful conduct in a subsequent petition
for .custody. I'he child IS to be returned to the parent or Indian custodian .by the court unless such return would result in substantial and
immediate physical danger or threat of physical danger to the child.
It IS not intended that any such showing be by or on behalf of thewrongful petitioner.
Section 111
Section 111 provides that, where State law affords a hizhor dezreeof protectl?n of the .rights of the parent or I.nclian cust~clian, s~lch
standar~ WIll be applIed by the State court III lieu of the related proVISIOn of this title. The section was amended by the committee toinclude any relevant protection or standard established under Federal law.
Section 112
Section 112 would permit, under applicable State law, the emergency removal of an Indian child from his parent or Indian custodianor emergency placement of such child III order to prevent Imminent
physical harm to the child notwithstanding the provisions of this title.
Such em~rgency removal and/or placement is to continue only for areasonable length of time and the committee expects that the approprrats State official or authority would take expeditious action to return the clnld.to the parent or custodian; transfer jurisdiction to theappr?pnate tribe: or institute a proceeding subject to the prOVISIOnsof this title.
.
Section 113
Section 113 provides for the orderly phasing in of the effectof the
prOVISIOns of this title, As amended, it provides that none of the proRR. 1386--4

~isH#1!!bf(this titl~;t\x~pt~i01\ 1'01'(11;), \V6'illdfipplYOOeA1:Y Stttte
ltC'tidfi'fdl' ifdSte1' 'ca'te 'Plitctlmeht; f~'t 'teMti¥ll~ti1jrtof~m'tl'ttt'ighrts;'f()rpteltdbptiV'el·lac~me't1t; 111' ~6t·!lldoptive :plltMttieYitwhich Wasi'nitittt'ed
ortlbhil,letJe • ptidr' to 'ehl't'Ctlh'eht oTthis act. H6wev'er, it is intended
that the provisions would apply to any subsequent di~cr.ete phase of
the same matter or with respect to the same child ihitIated afterenactment. For instance, if the foster care placement of an Indianchild was initiated or completed prior to enactment and then, subsequent to enactment, the child was. replaced for foster care, or an
action for termination of parental rights was initiated, or the childwas placed in a pre adoptive situation, 01' he Was placed for adoptron,
the provisions of the act would be applicable to those subsequentactions.
Section 201
Subsection (a) authorizes the Secretary to make grants to Indian
tribes and organizations to fund Indian child and family service programs on or near the reservation and lists nonexclusionary services tobe provided m such programs.
Subsection (b) permits tribes and organizations to use such grantmoney for non-Federal matching share with respect to titles IV-:B and
XX of the Social Security Act or other similar Federal programs. It
would also recognize the licensing or approval of foster or adoptive
homes or institutions by Indian tribes as equivalent to State licensing
or approval.
Section 202
Section 202 authorizes the Secretary to make similar grants to
Indian organizations for off-reservation programs.
Section 203
Section 203 authorizes the Secretary of the Interior and the Secretary of Health, Education, and Welfare to enter into joint funding
agreements with respect to Indian child and family service programs,
to the extent that funds are made available by appropriation acts forsuch purposes. The authority of the Snyder Act of November 2, 1921
(42 Stat. 208) IS made available for the appropriation of funds for
grants to tribes and organizations.
Section 20/,.
Section 204 provides that, solely 'with respect to sections 202 and20~3 .of this act, "Indian" shall have the meanmg assigned to it insection 4(c) of the Indian Health Care Improvement Act of 1976
(90 Stat. 1400, 1401).
Section 301
Subsection (a) provides that any State court entering a final decreeof adoption ofan Indian 'child after the date 'ofenactment of this act
shall provide a copy of such decree together with certain other basic
information to the Secre'tary, irrcluding any affidavit 'of a parent
requestmg anonymity. The Secretary is required to maintain suchmformation and records and to insure that such informatloh is kept
confidential. The subsection provides that such information shall not
be subject to the Freedom of Information Act.

Subsettiott {b)Ptov.ides th-child over age "IS' an ~do .tivnt, upon request 'of itii.·· adop~d . Indianan Indian child's' tri~, the&~f':~~TerlaTent of fth Indian child; 'Of
as may be necessary forenroUm ~-~.r s all r,elease such Infortnatioh
tectmg the fIghts· of the child :~t;~ \he ?hild or for otherWIse pro..
parent ha~ requestedau"Ou it h ' n d Ian.. Wh~re .the bIolOgicalto an Indian tribe the eli~li[' ~fe Secret~ry IS ~uthonzed to cettify
membershIp cnteria with« ut d Y 1 an InhdIan chIld under the tribe's. -.:6 cation, .is acceptablelSCtoOS111O'
f h
if suoh certi
th °t t "b'e id en tit
1 yo' t e patents,o'e 1'1 e.
uectwn 302

Se.ct~on 302 establishes timetables and',the secrptarial promulO'at'on of
1· . consultmg reqUIrements for
Sectwn ;"0101regu anons Implementing this act.
SectlOn401 directs the Sectetar to b "on the feasibility of pro'Vidin cr Ildi~u hI~y!ta report to the Congressnear their hOllles. l'he committe. a c. 1 c ren WIth schools locateel
Impact. of the Federal boatding' ~h\'val informed of t.~e. denstatmg
and On Indian children, partIcu1a~1 00 systept on IndIan family life
grades and considers that It' .
y:ose. chIldren in the elementaty
that they be afforded the opp~;~ .: tes~.mterests of Indian children
school. It is noted that more th~~1 ~OdvNeT at home ,While attending,avaJo children m grades
1 to 8 are boarded.
Section 402
Section 402 requires the SecretaI'r.
to provHJe appropriat.e no tice a d y'f\\lthm 60 days after en.actment. ,.
n mortilatlOn b t hi,
prOVISIons to appropriate State officials.
a ou t IS act and its
Section 403
Sectio~ ~03 provides that if un.. ' ,.
,.
the remainmg provisIOns shall n Yt PlovfflslOn ~f tIllS act IS held mvalido be II ectea thereby.
'

tt

fu

LEGlSLATIVE HISTORY'Fh. welfare legislation is hr ne I nc·1'!an chIld

and l1lvestlgations conducted m the 93<1 t e loutgrowth of ;hearings
Itl 1
the Subcommittee onlncliitn Affai 94~ ~'l llISH! 95th Congress.
1974,
on nterior and Insular Affairs at the. rs,O .ne en~te CommIttee
organIzatIOns, COndtlcted oversight h i urgmg of IndIan tribes and?lllldren from their fUluilies and th:att gs on the removal of Inclian. P acement of such children in
foster and adoptive homes Te ti
of pu blic .and private wiil1es:e~~~iZhv~stikdn from a wiele spectrum
abuses of the rights of Indian t·ben~ e to confirJ.ll reports ofprocess.
1'1 es, parents, and children in thel?~rll1g tIle 94th Congress, Task Force IV .fh. . . '..
"POlley ReVIew C01011l1ssion establ' h d b h 0 . t e AmerIcan IndIan(88 Stat.. 1910), addressed the IS IS e . y. t e a?t of Janua:t'y 2, 1975
a S~~l(~S of hearings, the task f(;t~~el'~pfJ~dIa1ckIld<~ placements. Afterfilndmgs of the Senate ovetsiO'ht h ..
ane n mgs supported the., 0
earmg-s. In the latter patt of 1976
and eat.Iy 1977 the C..
,ommlssion conSIder d th . fi d·"
JytendatlOns of the task force on I d"i-l' e 1ll mgs ancl l'ecom·;;n.c ~I a welfare matters. In its
final report to the Congress theommendations on the iss~e' many 0 f mthssIOhnhmade a number of 1'ecB.R. 12533.
, 0 w ICave be-en included in

C

28

29

On April 1, 1977, Senator Abourezk introduced S ..1214 wh.ich
referred to the Senate Select Committee on. IndIan Aff!Llrs. .
August 4,1977, the Senate committee held heanngs on the bill, ag~m,taking testimony from the broad spe~trum of concerned parties,
public and private, Indian and non-I~chan. The committee adopted
an amendment in the nature of a substitute and reported the a~end~clbill to the Senate on November 3,1977 (S. Rept. No. 95-597) . I'he billpassed the Senate on November 4, 1977,.
.
In the House, S. 1214 was referred to the Committee 0~1 Interior andInsular Affairs. On February 9 and March 9, 1978, the Subcommittee
on Indian Affairs and Public Lands held hearings on th~ bill, hearing
8 hours of testimony from 34 witnesses. The subco~mlttee recmyedcomments on S. 1214, either by oral testimony or wntten c?mmumeation, from :3 executive departments; 20 States; 22 ~on-I~dlan privateorganizations' 35 Indian organizations; and 38 Indian tribes.
'On April Ii, 1978, the subcommittee mar~ed up S..1214 an~l adopt.ed
an amendment in the nature of a substitute. ThIS substitute wassubsequently introduced by Mr. Udall. et al. as a clean bill, H.R.
12533. On June 21, 1978, the fun committee took up conslde.rat~on of
the legislation and proceeded to the markup of H.~. 12533 III lieu of
S. 1214. The committee adopted an amendment m the natur~ ,?f a
substitute to H.R. 12533 which was further amended. H.R. 1.253,), as
amended, was reported from the committee favorably, by VOIce vote.

CONGRESSIONAL BUDGET OFFICE COST ESTIMATECOST AND BUDGET ACT COJIPLAINCE
Title II of the bill directs the Secretary of the Interior to instituteprograms for child and family service assistan,ce. ,Thes~ programs
include authority to construct centers on ~nd ofl reservations an.~l. toprovide a variety of assistance pro.grams directed toward the stability
and integrity of the .r~lchan family. CBO has pro]e~ted a cos,t ofapproximately $125 million over the next 5 fiscal years. ~he com!ll1ttee
feels that this· estimate is high and is based upon as.sumptIOns which areprobably not valid, but it ugr~es that the costs WIP not exce.ed a ~o~~lof $125 million. For instance, It assumes constructIO~ of family service
centers in every case in which an Indian .re~ervatI.0.n.or urban area
might be eligible for such center. In fact, existing facilities, both on thereservation and in the urban areas, would pI:obahly be use~l to housethe various programs contemplated III the bill. The analysis of H.R.
12533 by the Congressional Budget Office follows:

Hon. MORRIS K. UDALL,

U.S. CONGRESS,CONGRESSIONAL BUDGET OFFICE,
Washington,D.C., July 11,1978.
.

Chairman Committee on Interior and Insular Affair», U.S. House oj
Repr~sentatives, 'Washington, D.O.
DEAR MR. CHAIR;\IAN: Pursuant to Section 403 of the Congressional Budget Act of 1974, the Congressional Budget Offic~ has p~e­pared the attached cost estimate for H.R. 12533, the Indian Child
Welfare Act of 1978.
,
Should the committee so desire, we would be pleased to provide
further details on the attached cost estimate.
Sincerely,
ALICE M. RIVLIN,

Director.

JULY 11, 1978.
Bill No.: H.R. 12533.
title: Indian Child Welfare Act of 1978.
Bill status: As ordered reported from the House Committee on
Interior and Insular Affairs, June 21, 1978.
4. Bill purpose: The purpose of this bill is to establish standards
for placement of Indian children III foster or adoptive homes and toestablish grants to Indian tribes and Indian organizations for theconstruction and operation of Indian family development centers.
R.R. 12533 does not request any additional authorizations for the
purposes of this bill. Rather, the act states that the new programs will
be authorized under the act of November 2, 1921 (the Snyder Act).
The Snyder Act provides permanent and open ended authorization for
Indian programs. This bill IS subject to subsequent appropriation
action.
5. Cost estimate:
Fiscal year 1979:
Million8
Estimated additional authoriatalon_
Estimated costs_
Fiscal veal' 1980:
Estimated additional authorization __ ~___________________________ 27.6
Estimated costs; - - -- ---- --____ ____________
6. 8
Fiscal year 1981:
Estimated additional authorization
32.3
Estimated oosts; - - -- -- ---- __-_ ________________
____
30. 4
Fiscal veal' 1982:
Estimated additional authorization
42.2
Estimated costs; - - -- ~- -----_ ~________________ 38. 2
Fiscal year 1983:
Estimated additional authorization
52.4
Estimated costs , - - -- ------ ---- ________________________________ 45. 0

The costs of this bill falls within budget function 500.
6. Basis for estimate: The projected cost forR.R. 12533 is based onprogrammatic information and assumptions supplied by the Bureau ofIndian Affairs (BIA). Below are the specific assumptaons for thisestamata.
(1) There are 150 potential locations both on and off the reservations that would be eligible to build and operate a child development
center as described III the bill. It was assumed by BIA that a maximumof 30 centers would be constructed annually at a cost III fiscal year
1980 of $658,000 per center.
.
(2) Once built, each Center would be operated by a professional andsupport staff of 15. The first full year costs (fiscal year 1981) covering
operating expenses for 30 centers is estimated to be $7.9 million.
(3) The building costs were inflated by the CBO projection for cost
increases in the re~dential building industry. 'I'he other expenses were
Illfiated by the CBO projection for increases in the CPr.
.
(4) The spendout on construction for the development center isspread over 3 years, while the spendout for operating expenses IS
spread over a 2-year period. The fiscal year 1980 spendout 1S relatively
low reflecting a lagtime for planning and development o~ the centers.
(5) This cost estimate assumes an enactment for this b111 of October
19'18 with appropriation action completed and regulations issued by
October 1979.

31

30
7. Estimate comparison: None.·., '.. ..
8. Previous CBO estimate: On November 2, 1977, CBO preparedan estimate on S. 1214, the Indian Child Welfare Act of 1977. The
Senate bill is essentially the same as H.R. 12533; .However, .S. 1214
did not assume the use of Snyder Act authonization-and-included
additional authorization lan~uage to c:o~er the provision of the billsetting an authorization level of $26 million for fisca.ly~ar1979.
9. Estimate prepared by Deborah Kalcevic. " , .•'., .
10. Estimate approved by James L. Blum, Assistant Director Cor
Budget Analysis.
INFLATIONARY IMPACT STATEMENTAt the level of funding estimated by the Congressiona.l Budget
Office, enactment of this legislation would have some minimal inflationary impact. This impact is lessened since the cost will be spreadout over 5 fiscal years.
.
OVERSIGHT STATEMENTOther than normal oversight responsibilities exercised in conjunction with these legislative operations, the committee conducted no
specific oversight hearings and no recommendations were submitted
to the committee pursuant to rule X, clause 2(b)2.
COMMITTEE RECOllIMENDATIONThe Committee on Interior and Insular Affairs, by a VOIce vote,recommends that the bill, as amended, be enacted.
DEPARTMENTAL REPORTS
The report of the Department of the Interior, dated June 6, 1978,
and the reports of the Department of Justice, dated February 9,1978,
and May 23, 1978, are as follows:
U.S. DEPARTMENT OF THE INTERIOR,
OFFICE OI?THI~SECRET}':U;Y, " ".
Washingtcrn,D;Q., ,June 6, 1978.
Hon. :MORRIS K. UDALL,;'.' .
Ohairman, Committee on Interior and Insular Ajfa,iT$,I!oii.se,of.R,epr/ksentatioes, 'Washington, D.O.
'.' .' '. '.,.. ,:DEAR MR. CUAlHMAN: This Department would liliito-make its
views known on H.R. 1253:3, the Indian Child Welfar,eAet of 1978,
and urges the committee to make the recommendedchariges duringmarkup of the bill. We understand the Department of Justice has
communicated its concerns with the bill to the committee, and weurge the committee to amend the bill to address those concerns. .
If H.ll. 1253:3 is amended as detailed herein and us-recommended
by the Department of Justice's letter of May 23,1978,'\\TewouJr!
recommend that the bill be enacted.
"
Title I of' ILK 12533 would establish nationwideprocedures.Ior-the
handling of Indian child placements. The bill would vest in tribal
courts their already acknowledged right to exclusive jurisdiction overIndian child placements 'within their reservations. It would also pro>' , ',~ ~.J1 tr~~er Qf SI,l.CA 1).. proceeding {COOl u. ~~&t0 co~t to ~ tri~al, ~~t,if the parent or I:Q.dl.&:Q, custodian so ~\tJ,OW> or i$. thfl, lndl.a.Dtfib.~.sQ petitions, and i{ neitb,er of the parents nw the custodiar, objects.
Requirements dealing with notice to tribes aad parents and consent
t~ child placements are also a major element of the bill. Testimony ont~ problems with present Indian child placement proceedings repeatedly pointed out the lack of informed consent OI;l the part of many
Indian parents who have lost their children.
.
. Title I would also impose on State courts evidentiary standards
which would have to be met before an Indian child could be orderedremoved from the custody of his parents or Indian custodian. Courtappointed counsel would be available to the parent or custodian upona, finding of jndigency by the court.
. .
.
. State courts would also be required, under the prOV1Sl,OnS of n.R.
12533, to apply preference standards set forth in section 105 in theplacing of an Indian child. These preferences would strengthen the
chances 01' the Indian child staying within the Indian community andgrowing up with-a consistent set: of cultural values.
Title II of H.R. 12533, entitled "Indian Child and Family Programs," would authorize the Secretary of the Interior to make grants
to Indian tribes and organizations for. the establishment of .Indianfamily service programs both on and off the reservation. Section 204
would authorize $26 million for that purpose.
Title III of H.R. 12533, entitled "Recordkeeping, Information
Availability, and Timetables," would direct the Secretary of theInterior to maintain records, in a single central location, of all Indianchild placements affected by the act. Those records would not be open,
but information from them could be made available to an Indian childover age 18, to his adoptive or foster parent, or to au Indian tribe,
fOJ.: the purpose of assisting in the enrollment of that child in an
Indian tribe.
Title IV of H.R. 12533, entitled "Placement Prevention Study,"
would direct the Secretary 01' the Interior to prepare and submit
to Congress a plan, including a cost analysis statement, for the provision to Indian children of schools located near their homes.
Although we support the cOJ:.lcept of promoting the welfare. of Indianchildren, we urge that the bill be amended in the followmg ways.
. Section 4(9) defines the term "pl~<,:ement.".This definiti~n is crucial to the carrying out of the provlslO~S of title 1. We believe that
custody proceedings held pursuan.t to a divorce decree and, delinquency
proceedings where the act committed would be a crime If committed
by an adult should be excepted from the definition of the term "placement". We believe that the protections provided by this act are notneeded in proceedings between parents. e also believe that the standards and preferences have no relevance m the context of a delinquency
proceeding.
. . . . . . .
Section 101(a) would grant to Indian tribes exclusive jurisdiction
over Indian child placement proceedings: We believe .that .sectlOn
101(8) sh~ul~b.el!'mended~o make explicit .tha~ an Indian tribe has
exclusive jurisdiction only If the Indian child IS residing on the 1'e:,,servation with a parent or custodian who has legal custody. The bill
does not address the situation where two parental views are involved.
Therefore the definition of domicile is inadequate and the use of theword "pm~cnt" as defined does not articulate the responsibilities of thecourts to both narents,yv

32
We believe that reservations located in States subjecttdPublicLaw
83-280 should be specifically excluded from section JO~(lL), since theprovisions of section 108, regarding r~t~oce~slOn of jurisdiction, deal
with the reassumption of tribal jurisdiction ~n. those States. , .' .
Section 101 (b) should be amended to prohibit clearly the transfer ofa. child placement proceeding to a tribal court when any parent orchild over the age of 12 objects t<;> the transfer,,....,.
Section 101 (e), regarding full faith and, credit to tribal orders, should
be amended to make clear that the full faith and credit intended IS thatwhich States presently give t<? other S t a t e s . .
Section 102(a) would provide that no placement hearing be held
until at least 30 days after the parent and the tribe receive notIce.
We believe that in many cases 30 days IS too long. to delay the commencement of such a proceeding. We suggest that the section .beamended to allow the proceeding to begin 10 days after such noticewith a provision allowing the tribe or parent to request up to 20 additional days to prepare a case. ThIS would. allow cases where the p!l:rent~ .
or tribe do not WIsh a full 30 days' notice ~o be adjudicated quickly,
while still affording time to the parent or tribe who needs that time .toprepare a case. We also suggest that the section be amended to reqUIre
the Secretary to make a good faith effort ~o locate the parent as quickly
as possible and to provide for situations in whiohtheparent.orIndien
custodian cannot be located.
. , .
We also believe that there is a need for specific emergency removal
provisions in R.R. 12533. A section .should be added allowing theremoval of a child from the home WIthout a court order when. thephysical or emotional well-being of the child is seriouslyandimmediately threatened. That removal should n?t exceed nhours WIthout
an order from a court of competent jurisdiction. ." '.,.•....".
Section l02(b) would provide the parent or Indiancustodian of an
Indian child the right to court-appointed counsel If the court determines that he or she is indigent.
.
. . . . ....
. ..
We are opposed to theenactment of this sec~IOn.WedQnQtbehevethat there has been a significant demonstration of need Iorsuch.a
provision to justify the financial burden such a .requrrement would
be to both the States and the Federal Government.:, '.
Section 102(c) would allow all parties to. ~ plac~ment,to examine
all documents and files upon which any decision with.. resP.·. e.e.ttqt1~at.
placement may be based. This provision conflicts withfhe Fede.r01
Child Abuse and Neglect Treatment Act, Public Law 93:-247,whlChprovides confidentiality for certain records III child abuse, and,Jleglect
cases. '\Ve believe that such a broad openmg of records would lead toless reporting of child abuse and neglect. However, we do recogmze
the right of the parent to confront and be g.lven ~n. opportunity torefute any evidence which the court may use m deciding the outco~eof a child placement proceeding. We recommend t~at the IndianChild Welfare Act conform WIth the prOVISIons of Public Law 93-247.
Section 102(e) of R.R. 12533 would require the State court tofind beyond a reasonable doubt, before ordermg the removal of thechild from the home, that continued custody on thepart of the parent
or custodian will result in serious emotional or .physiCal. dama~e to thechild. We believe that the burden of proof IS too high. We would
support the language found in section 101(b) of the Senate-passed

33
S. 1214, which would impose a burden of clear and convincinz evidence
and would set down certain social conditions which could n~t be considered by the court as prima facie evidence of nezlect or abuse. We also
believe that the language "will result" in seriou~ damaza to the childshould be amended to read "is likely to result" in such'"damage. It isalmost impossible to prove at such a high burden of proof that an act
WIll defimtely happen.
Section 1q5 01' H'R, 12533 would impose on State courts certain
preferences 1Il placing .an Indian child. Subsection (0) would substitute the preference list of the Indian child's tribe where the tribe
has established a dlfreren~ order of preference by resolution.
Lll:D,guage should be included in that subsection which would
requn:e that r~solutiOl~ to be ~ub.lislIed in the Federal Register andlater included III the Code of Federal Regulations. This would allow
the ~tate court easy access to the preferences of the various tribes.
It ~s also unclear what the last ?entel~ce in subsection (c) means in~Il?wmg the pre.fer~~ce of th~ Iridian child or parent to be considered
where appropriate . We believe that the preference of the child andthe parent should be given due consideration by the court regardless ofwhether that court IS followmg the preferences set forth in section
105(a) or 105(b), or whether it is following a preference list establishedby ~n Indian tribe. Therefore, we recommend that a separate subseet.lOn be added to section 105 statmg that the preferences of the
Indian child and of the parent be given due consideration by the court
whenever an .Indian child is being placed.
Sect~on lOt? deals with failed placements and requires that, wheneveran Indian child IS removed from a foster home or institution in which
the child was placed for the purpose of further placement, such removal
shall be considereda placement for purposes of the act. We see noreason for requirmg a full proceeding every time a child is moved fromoneform of foster care to another. lVe do, however, recognize the needfor notification of the parents and the tribe of such move and for
applying thepreferences set forth in section 105. Therefore we recommend that subsection (b).of section 106 be amended to require thenotica and preference prOVISIOns to apply when a child is moved fromone form of foster care to another and to require the removal to be.' considered as a. new placement only in the case where termination ofparental rights is at issue.
Section 107 deals with the right of an Indian who has reached aze 18
a~d who has been. the subject. of a placement to learn of his 01; hertribal. affiliation, We believe that rather than apply to the court forsuch information, the individual involved should apply to the Secre, taryof the Interior. Under the provisions of title HI the Secretarv
would maintain a central file with the name and trib~l affiliation O'feach child subject. to the provisions of the act. Therefore, the Secretary
would be more likely than the State court to have the informationneeded to protect an3~ rights ?f .the individual involved which may
flow from hIS or her tn bal affilia bon.
,. Finally,. with respect to title I, we believe that a section should be" added which would state that the provisions of the act should apply,/o.nly WIth respect to placement )H"ot:culin:!:s which begin 6 months,;after the date of. the enactment of the act~ This woult! allow States";',,'some tune to familiarize themselves with the provisions of the act and

s,

i-

34

35

would thus avoid the chance of having large numbers of placements
invalidated because of failure to follow the. procedures of the act.
Such a section should also state that the intent of the act IS not thepre-emption by the Federal Government of the whole area of Indianchild welfare and placement. In any case wherea state has laws w~lCh
are more protective than the roquirements of this act,e.g., withregard
to notice and enforcement, those laws should apply,' ..
'Ve believe that many of the autho~Ities grante,d, by. title II of thebill are unnecessary because they duph~ateaut;hontl~~:mpres~ntJaw,
and therefore we recommend the daletion of title II. .
, We find espeeially objectionable in ~itle II the follO\~mg:.
The authorization for an unlu11lted subsidy program for Indian
adoptive children. We believe that any such program should be
limited to hard-to-place children or children who are ~r wou~d, be
eligible for foster care support from the Bureau of .Iridian AffaIrs.
"\Ye also believe that the amount of any such support would haveto be limited to the prevalent State foster care rate for mamtenance and medical needs.
"
if
The authorization for grants to est,a,bllSh amI operate 0 reservation Indian child and family servIce'p!og;r.alll~~,, ')The new sepnrute authorization of $26 milhonIIlsectlOu20d(b)of title II.
.,; 11'h '... ....
.
The provisions of section 201 (c) which w~u c,n,utO!lZe ev~ry
Indian tribe to const!uct,<?pen\~e, and. lllamtalllJalll;Ily"s~r~ teefacilities regan\less ol tl~~ ~I;I,e 0, the tribe or tl~e ityu:~lj,blht} ofexisting services and Facilities.
.
; .. :: .• ;'. ...,:. 1- The ~authorization for the use of Federal funds,~pproPJlat~lunder title II to be used as the non-Federal matchlllgshare III
connection with other Federal funds.
,., .'.
However, we believe that the lust senteJ?-ce 0~,se()tlOn201(b), providing tha~ licensing or approval by an Indian tribe should be deeml~(\qui~tl.1ent to tll.,tt done ,by n State, should remain 1ll the bill unc ei
title I f,S It sspnrnte sectlOn.,p,f H R '2~3" Ww« have no objection to se,ctlOn 301 or title II~ a ',,'~. oebehove th'lL requiring the Secretary to mnincum a central £1 e on
Indian cllild placemer~ts will b,etter enable. the Secretary t,o c~rry out
his trust l'espon"ibility. espeCIally when judgment lund" are to be
distribme,d.
'
. 1"
, 11
However we object to the provisions of section ?q2(c), w ncn wou lrequire the 'Secretary ,to present any proposed.revisIOl~~r, amenchben~
of rules and regUlatIOns promulgated Un(:I~I thatse~t!OIl to at
Houses of Congress. Any such pI:oposed reVISIon ,or amencl~~~~ ~ouI,~
be published in the Federal RegIster and we, behevethatplacIIl.t> thI
aLlditio11!ll resi)onsibility on the Secretary IS boHl,l)':l~·(\e,ns0IIl.~ anc-of the U.S. House of Representatives within 1 year from the date

:i'

T

1

nntv~\~~li~~'e that section 401 of Title IV shoul(tb~aI~ended to readas foll~S~<;~, 401. (It) It is the sense of Congres~t,hi,'fj~~~;_.~.b,~ellYk·of
locallv convenient day schools may contnbllte:}9t.n,tlpreupof InZlian families,. ' . . , : ' i : ! " , ' ; ' : d'(b) The Secretary is authorized ancl,lhrecte(~:()i:preprurs~n'l
submit to the Select Committee on Indian AfftL.lr"'9~,the.1Jnl~Y(States <Senate and the Committee on InterIOr and Insular Affairsof this act, a report on the feasibility of providing.Indian children
with schools located near their homes. In developing this report
the Secretary shall give particular consideration to the provisionof educational facilities for children in the elementary grades.
The Office of Management and Budget has advised that there is noobjection to the presentation of this report from the standpoint of thead ministration's program, and that enactment of the House subcommittee's present version of H.R. 125:13 would not be consistent withthe administration's objectives.
Sincerely,
FORREST J. GERARD,
Assistant Secretary.

DEPAH'l';\iEN'r OF JUSTICE,

lVashington, D.C., Februaru 9, 1978.
Hon. MORRISK. UDALL,
Ohairman; Committee on Interior and Insular Affairs, House oj Ilepresentatiljes,Jfashington, D.C,
DEAlt MR. (JHAIRM4-N: This is to bring to your attention several
m:e:l,s"where the pepartmen,t of Justice p~rceives potential problems
With ::s. 1214, a bill to establish standards for the placement of Indianchildren in foster or adoptive homes, to prevent the breakup of Indianfamilie,s, and Ior other p~lrP?SeS, In 0\11' view, certain provisions of the
b!U r!1uie serious constitutional problems because they provide fordiffering treatment of certain classes of persons based solely 011 race.
S, 1214 was passed by the Senate on November 4, 1977 and is now
pending in the Interior and Insular Affairs Subcommittee on IndianAffairs and Public Lands,
This Department has not been involved in the hearing.'> rel.itinz tothe bill. ,Our comments therefore are based on 11 reading or the textof the bill ruther than on a review of the testimony and Ierrislative
history which necessarily would be considered by it court ",,-1Jic'J~ had tointerpret its provisions and determine its constitutional validitv.
,As you may be aware, the courts have consistently recognized that
tribal governments have exclusive jurisdiction over the domestic rolntionships of tribal members located on reservations, unless a State has
assumed concurrent jurisdiction pursuant to Federal legislation suchas Public Law 83-280. It is our understanding that this legal principle
is often ignored by local welfare organizations and foster homes incases where they believe Indian children have been neglected, :1,11.(1 thatS. 1214 is designed to remedy this, aud to define the Indian rights insuch cases.
.
. The bill would appear to subject family relations matters of certainclasses of persons to the jurisdiction of tribal courts which arc presently adjudicated in State courts. The bill would accomplish this resultwith regard to three distinct categories of persons, all possessing thecommon trait' of having enough Indian blood to qualify for membership in a tribe. One class would be members of a tribe. Another classwould be nontribal members living on reservations, and a third would
be nonmembers living off reservations. These three classes would be

36- f th ad'of certain
familydenied accessto Stnlate
is Judication
under
sectlOnl02(c)relationsmattersu essC?,UdS
goo d o~use~'cashownof the hill.

,-, - d hy S 1214 is whether thede~i~l,!t~~~:~scf~~h~:~~~~~:~3i~~~~~e~u1i~~S/~.;:~~i"8s:tion violative 0 t e I., a~n.1ddressed by focusing 011
497 (1954). TIns qticstIOnJs m~tl~l}~~/a~d contrastme each classeach aofSImI
th:l arthlrectc
epersons whose access to State courts
withy SI uaaStSeelsclae:~r~f'~,

IS not affected by the blV'1" hts under the bill may- ll1 our opinion,
The class of persons w lOse, 19 , tins leo'islation 'a;'e the members
constitutionally be circumscribed by I'~serv-ba'tion In Fie her v. Districtib
h tl r Iivinz on or near a c c ' .
to! a tri e,~~2 (197'"'6) the Supreme Court addr,essed an argl~men 'Court, 424 .. . of the' Northern Cheyenne Tribe that denial ~omade by membeIs,
a State courts to pursue an adoption didthem of access to the ~~lntan 1 discrimination In that case, both the
not involve imperrmssi e racia tion of the child in question and thepersons seekm~ to burshl i~~l;o contested the right of the Montana
natural mother of t et cr lci tion proceeding were residents of thecourtsto entertam
El. a fEl tribe. 'rhe Court stated that:
reservationand memtb1CIS
0
1,,. , diction of the Tribal Court docs not
T,he fe,.xclllslve," t~'ff
but rather fromthe.J
the jurisrace 0 f t h e pram
1 ".
uerrve rom'rr'. of the Northern Cheyenne Tnbe underquasl-sstat~~r even if a jurisdictional holding occaIredell'lay' rae\;~Itts °f~o den'ying an IiIdian plaintiff a forum tO
S1Ona,:'.} d' parate treatmon 0
which a non-Indian has access, SU.C 1 tIS, d d >to benefit tthef
I di, - stifled because It IS m en e,
tile n f la I} h~ is a member bv furthering the congressional
crass
w llC
1,
ent Morton
v . Moncari, 417
iolicy0 ofIndianse If-governm,;.,
5:35, 551-555 (1974),424 U,S., at .:>90--91.
.,

US

08

1r-'lrel1-f1,

hs.

In, Fisher, the class to wh,ich the COUC\t was a!)l?I~~rrl'~bne,.tlJ;rlli~eI~l~~,bf th N ort l,iern h eyenne.
consisted of mem ers 0 , e t Morton v Mancari III which the
because of the Court'sf
re c1ta~lOrtr~atment or' Indians {n certain emCourt
had
upheldPbla, rr tl1at tile "preferenceIt sit. t ns y eren
reasonlll' , > , as applied, isP oymen slI uat· 10
t as a discr~te racial group, but rather, as memgranted to l l ( 1ans no ' l1b.: "a, '.* *' *" 417 U.S., at 5.54, _; hnt.lt~~~ntered- this thicket in Unttedbel'S of <!llaSl-Soverehgn
More recently, t e gur
a~361 (U.S. April 19, 1977). In that
States v . Antelope, 4~ dVAl·L·'i~dians contended that their Federalcase" enrolled
d'Ale,set
mur d1 er 0 fesea non- Indian on the. Coeur",b Reserfor Coeu',. us'. racialaconvicionst'ere 'products 0 f'mviuio" discrimination1b ecauset - I
va ions . w " t '' tl Slime crime would HIV3 een riec
non-Indian participa ,m~lJl :e i1ad certain substant.ial advant~~es
in St~~o, court and \\ ou. l~' e1 to be rrovcd for conviction.' ,I het11atl tIle Coeur d' Alese IndIans
regarumg,, the. elementst O' tIns IcJ_qUlrec
calm h e11
C
USC
Court, m reJle: l~od t Federal criminal junsdiction [under 18 '""were not SllVJec he y,0'f th Indian race but because they were
§ 115:3] because
la1vCooeur ~l'Alese Tribe." Id., at 4363.
memberst 0ef tIe
enrolled

6'0mt~~~c~~li~I~ t1i':~.si~a~rde\l~;~~~c~e~~~~gt0~e~~~~~~le1~eeb~~~~~~~ilt~Ji ~~~t1'~~~~~ ~:i~1
had to prove c:r~al~l el~~I~nW~S i~ effect 111 the latter court.
-

because a felons -1l.t1l ( erI h the crime occurred. did not have a felony37
We believe that Mancan:, Fisher, andAntelope clirectlysupport theconstitutionality of this bill as it affects the access of tribal members
to State courts. At the same time, these cases donot resolve the constitutionality of S. 1214 as it would affect the rights of nontribat
members living either on or off reservations. Indeed, they can be readto suggest that, absent tribal membership, Congress' freedom totreat differentlv persons having Indian blood is diminished.
'With regard" to nonmembers living on a reservation, a footnote in
the ,Antelope case would appear indirectly to address, but not resolve,
the question presented by this bill:"It should be noted, however, that enrollment in an official
tribe has not been held to be an absolute requirement for Federal jurisdiction, at least where the Indian defendant lived on
the reservation and 'maint,ained tribal relations with the Indians
thereon.' Ex Parte Pero, 99 F. 2d 28, 30 (CA 7 1938). See also
United States v, Ioee, 504 F. 2d 935, 953 (CA 9 1974) (dicta).
Since respondents are enrolled tribal members, we are not called
on to decide whether nonenrolled Indians are subject to [Federal criminal jursidiction] and we therefore intimate, no views on
the matter." 2
In Ex parte Pero, supra, the seventh circuit affirmed the grant of awrit of habeas corpus to a nonenrolled Indian, who had been convictedof murder in a State court, holding that the Indian could only be tried
III Federal court by virtue of what was then 18 U.S.C. § 548, the predecessor of 18 U.S.C. § 115a. The court appeared to base its holding on
the fact that the Indian was the "child of one Indian mother and halfblood father, where hoth parents are recognized as Indians and maintain tribal relations, who himself lives on the reservation and,maintams
tribal relations and is recognized as an Indian * * *." Id.,
at31.
With regard to nonmembers who are otherwise eligible for tribal
member::;hip who live on reservations, Pero at least stands for, thepropositwn that the federal interest in the "guardian-ward relationship" is sufficient to secure to a nonenrolled Indian the protection of aFederal criminal proceeding as opposed to tiral by a State court. Pero
IS, however, predicated on a Federalmterest which would appear to us
to differ in kind from the Federal mterest identified in Mancari,
Fisher, and Antelope. In those latter cases, the Federal mterest m
promoting Indian self-government was specifically id~ntified as atouchstone of the Court's opinions. In our view, this weighty mterestis present in S. 1214 in a more attenuated form with regard to nontribal
members, even those living on reservations. An eligible Indian who haschosen, for whatever reasons, not to enroll in a tribe would be in aposition to argue that depnvmg him of access to the State courts on
matters related to family life would be invidious. Such an Indian
presumably has, under the first amendment, the same right of association as do aU citizens, and indeed would appear to be in no different
situation from a non-Indian livlllg on a reservation who, under S. 1214,\yould have access to State courts. The only difference between themwould, in fact, be the racial characteristics of the former.
We also think that even Pero only marginally supports the constitutionality of this bill as applied to nomnembers living on reserva------

245 U.S,L.W" at 4363 n, 7,

38

39

tions., In Pero, the focus of the Court's inquiry was on the contacts
between the convicted Indian and the' Indian tribe and reservation.
In S. 1214, the inquiry would appear to be solely directed to contacts
between the Indian child and the Indian tribe, whereas the persons
whose rights are most directly affected by the bill are the parents Or
guardians of the child." Thus, there is little support for the constitutionality of this bill as applied to nontribal members living on reservations and the rationale applied by the Court in Mancari, Fisher, andAntelope would not save the bill. The Simple fact is that the parentsof an Indian child may find their substantive rights altered by virtueof their Indian blood and the simple fact of residence on a reservation.
The Court has never sanctioned such a racial classification which
denied substantive rights, and we are unable to find any persuasive
reason to suggest that it would to so.
.
Our conclusion with regard to nonmembers living on reservations
is even more certain in tl;e context of nonmembers living off reservations. In such a situation, we are firmly convinced that the Indian or
possible non-Indian parent may not be invidiously discriminatedagamst under the fifth amendment and that the prOVISIOns of thisbill would do so. Assuming a compelling governmental interest would
otherwise justify this discrimination, we are unable to suggest whatsuch an interest might be.
For reasons state~l above, we consider that part of S. 1214 restricting access to State courts to be constitutional as applied to tribal
members. However, we think that S. 1214 IS of doubtful constrtutionality as applied to nontribal members living on reservations a,ud would
almost certainly be held to be unconstitutional as applied to 1101[members livmg orr reservations.'
The Office ~f Management and Budget has advised that there IS noobjection to the submission of this report from the standpoint of theadministration's program.
Sincerely,
PA'rmCIA M. \V ALD,

Assistant Attorney General.
Dn;PAH'l'ME:;\iT OF JUSTICE,l,vashington, D.C., 1I1ay 23, J.iJ7S.

lIon. Monms Ie. UDALL,
Chairmen; Committee all, Interior and Insular Affatrs, House oj Repre-

sentatioee, lVa811tngton, D.CDEAH MH. CHAIRMAN: We would like totake this opportunity tocomment on the House Subcommittee on Indian Affairs version of
S. 1214, the Indian Child Welfare Act of 1978.
3 As we understand the bill. this denial of access to State courts would be predicatedon thc existence of "significant contacts" between the Indian child and an Indian tribe
and that this issue would be "an issue of fact to be determined by the court on the basts
of such considerations as: Mmnbershlp in a tribe. famll:\" ties within the tribe. priorresidency on the reservation for apprcciable periods of time. reservation domicile. thcstatements of the Child demonstrating' a strorur sense of self-Identity as an Indian. 01' anyother elements which reflect a continuing tribal relationship."The bill is unclear as to whether this determination would be made by a tribal court orState court.
• We also note our concern with the language used In sections 2 and 3 of the blJl regarding' "the Federal responsibility for the care of the Indian people" and the "special responsibilities and legal obligations to American Indian people." The use of such language hasheen used hy at least one court to hold the Federal Government responsible for the flnancin lsupport of Indians even tbough Congress had not appropriated any money for such purposes.
WitHe v. Califano. et al., elv. No. 76--5031, USDC, S. Dak .. (Septemher 12,1977). We fear
the lanl"(uage in this hill could he used bv a court to hold the United States liable for thefinancial support of Indian families far in excess of the provisions of title II .of the bill andthe intent of Congress.

As you know" the Department presented at some length its viewso~e constitutional Issue raised by S. 1214 asit passed the Senate
a Ie~ter to you dated February 9, 1978. 1 Briefly, that constituIssue concerned the fact that S. 1214 would have deprived
parents of Indla~ c~llldren as defined by that bill of access to State
courts for the adjudication of child custody and related matters based,
at bottom, on the racial characteristics of the Indian child. We express in that letter our belief that such racial classification was suspect
under the fifth amendment and that we saw no compelling reason
which might justify Its us~ in thesemrcumstances. ThIS problem has
been, for the mostpart, eliminated in the subcommittee draft which
defines "Indian child" as "any unmarried person who IS undo.; aaean d IS either (a) a: member of an Indian tribe or (b) eligible for r~em­
b ershII~ III aJ? Indian tnbe and IS the bIOlogIcal child of a member ofan Indian tribe.".
We are stiH cOHcerned, however, that ex9usiv~ tribal jurisdiction
based on the . (b) , portion of the definition 01 "Indian child" may constitute racial discrimination. So long as a parent who IS a tribal member
has legal custody of a child who IS merely eligible for membership at
the tame of a proceeding, no constitutional problem arises. Where
however, legal custody of a child who, is merely eligible for membership 1:'3 lodged exclusr~Tely. WIth nontribal members, exclusive tribal
jurisdiction cannot be ]ustlfi~d because no one directly affected b.y the
adjudication 1,S an actual tribal member. ,Yo. do not think that the
blood connectlOI! between the child and a biological but noncustodial
paren~ IS a sufficient baSIS upon wInch to deny the present parents andthe child access to State courts. This problem could be resolved either
bj; limiting the definition ?[ Indian child to children who are actunllv
tribal members or by mOdIfymg the "(b)" portion to read. "e]j(J'ibl~
for membership in an Indian tribe and is in the custody of a pf~'ent
who Is a member of an Indian tribe.".
A second constitutional question may be raised by § 101Ce) of theHouse draft. T~at section could, in our view, be read to reoiurc Fed~
ital,~tate, ann other courts to give "full faith and credit" to thepU,?hc acts, records and judicial proceedings of any Indian tribe
ap~~Jlcable to I,~cha~,child placements" even tbo.ugh such p~oceedingsml,)~tnot be final under the terms of this bill itself', So read, the~rovlslOn might well raise constItutIOnal questions under several:~preme Court decisions. E.f!," Halvey v. Halvey, 33.0 U.S. G10 (1947).
V, e think th~t problem can be resolved ?y amending that provision
to make clear that the full faith and credit to be given to tribal court
orders IS no greater than the full faith and credit one State IS required
to grvo to the court orders of a sister State.
b A third and more serious constitutional question is, we think, raisedy section 102 of the House draft. That section, taken together withsections 103,and 104, deals gen~rally with the handling 'of custorlv
proce~dmgs involving Indian chlIdI'en by State courts. Section 102
establishes a Iairly detailed set of procedures and substantive standards
which State courts would be required to follow in adjudicating theplacement of an Indian child as defined by section 4(4) of the House
draft.

IS

1 The Views expre~sed

In that lett"r were suMeC/uently pre~ented to the SUhcommittee on~~d~~~r.Ag,a~W7~~d Public Lands of your House committee in testimony by this Depllrtment

40

41

As we understand section 102, it would, for example, impose thesedetailed procedures on a New York State court sitting in Manhattan.
where that court was adjudicating the custody of an Indian child andeven though the procedures otherwise applicable in this State-court
proceeding were constitutionally sufficient. While we think that
Congress might impose such requirments on State courts exercisingjurisdiction over reservation Indians pursuant to Public Law 83-280,
we are not convinced that Congress' power to control the incidents ofsuch litigation involving nonroservation Indian children and parents
pursuant to the Indian commerce clause is sufficientto override thesignificant State interest in regulating the procedure tobefollowed byits courts in exercising State jurisdiction over-whatisll>tmditionallyState matter. It seems to us that the Federal interest in the off-reservation context is so attenuated that the 10th Amendment and general .
principles of federalism preclude the wholesale invasion of State power
contemplated by section 102. See Hart, "The Relations Between Stateand Federal Law," 54 Colum. L. Rev. 489, 508 (1954).2,
Finally, \H think that section 101 (b) of the Housedraft should be
revised to permit any parent or custodian of an Indian child or thechild himself', if found competent by the State court, to object totrausfer of a placement proceeding to a tribal 'court. Although "thebalancing of interests between parents, custodian, Indian children,and tribes is not. an easy one, it is our view that theconstitutional
power of Congress to force any of the persons described-above who are
not in Iact tribal members to have such matters heard before tribal
courts is questionable under our analysis of section 102above and theviews discussed above in regard to section 4(4).

}I::;\~el~lII~.lllI'hed or (hsesta?hsh~c1 .bo~I1l~laries of India~ rc:;et';ations

II. NONCONSTITUTIONAL PROBLE;\IS

There art', in addition, a number of drafting deficiencies in theHouse draft, First, we are concerned about some language used in
sections 2 and 3 regarding "the Federal responsibility for the cure of
the Indian people" and the "special responsibilities and legal obligations to American Indian people." The use of such language has beenrelied on by at least one court to hold the Federal Government responsible for the financial support of Indians even though Congress has
not appropriated any money for such purposes. 'White v. Califano,
437 F. i:'llPP. 5'i3 (D.S.D. 1977). We fear the language in this bill
could he used by a court to hold the United States liable for thefinancial support.of Indian families far in excess of the provisions oftitle II of the bill and the apparent intent of the drafters.
Second. section 101(a) of the House draft, if read literally, would
appear to displace any existing State court jurisdiction over thesemutters based 011 Public Law 83-280. We doubt that is the intent of
the draft because, inter alia, there may not be in existerice tribal
courts to assume such State-court jurisdiction as wouldappareritlybe
obliterated by this provision.
''
2 We note that we are aware of no congressional findl~gs whicii;would Indicate theInadequacy of existing State-court procedures utilized In these custody,' cnseacven assumin,t\" that such findings would strengthen Congress' hand In thls,pl!rtlcnlar rnatter., Asa,
policy ma ttor, it is clear to us that the views of the Stli.tes should be 'solicited before
Congress attempted to override State power In this fushlori, It position this Department
took in testimony heforf' the Senate Select Committee on Indian A/fairson SenateToint
Resolution 102 on Feb. 27, 1978.
'.~ Third, .th~ ?,pparent intent ~f section 4(10) is, in effect, to reestabor ,~e Imlte~ purpose of tribal jurisdiction over Indian child rlace-~en~\ ';;.e tlynk t~at such reestablii:lhme~t, in order to avoic1I)Q~ential

pro. ems, should be donea straightforward manner
hfnste~ It~eu nI?nareservations potentially ~ffected are identified and Consrress
tab a 3 IlljO adcount both the Impact on the residents of the areaoTh aecte an any other factors Congress may deem appropriuta.
IIIw. e.Office of l\fanagem~nt and Budget has advised that thoro is no
IlJectIOsnbto the presentatIOn. of this letter and that cnnctment oftheouse u committee on Indian Affairs version of S I" 1411tbe consi~tent with the administration's objectives. '_. wou ( no·Sincerely,'
PATRICIA
1V1. "WALD ,.
.1-1ssistamt Attorney General.

43

DISSENTING VIEWS

H. R. 135:):; should be sent back. to the Suq~ommi.ttee on I~dian.Affairs and Public Lands for additional conslder~tlon becl1.ns~.ofmajor defects in the bill ~lld because of m~deq~utteopportulUty lor.tlfeded States and agencies to testify on tnebI1!... .','; "., ,, I fe'>! l\ special r~~spolls~b~lity to the House of ·Repr~3e1tat{r.s. t~
submit this dissenting opinion because I w~s ,~he. o~l:y 1 em ei ex
pr('ssill~ p:rave concerns about many of the bill S piOVISIOn.S. Ior h
Larzelv because of my concerns about legal protectIOn .01 1. ~IJldi'u~ c1)ild the natural par<mts,. and the adoptive parent:;,} man)chnt~f!es'~\~er~ made at a staff level to improve the bill,.'l'lwse c ~Tang~:.
were <m::my and substantive and much unpl'ovem.ent\V~~sn.l~tl~ ~l:t
reuurd. Amendments abo helped Improve the bil] but, mUJOI· l C Fe S

tf

"r--

•

renlHlll.
,"
1" St te ·,t . iforce
Aruons; tnese numerous issues are the cost to ~ lE'.:a es 0 Yb .
the pl'Ol,;isions, new layers of progr~ms.ro~·I~d~an t;'I1)e~,a~(, asic('onstjtl1tional issues like State-Indmn JunSthctlOn. These were notcarefully enouzh considered during markup. ' .', 1"gC
I cali these "'problems to the attentl~n of my colleagues ,ancthat t,he hill be rejected until those Issues c.anmore, caI~flll~r ~)e
discus-er] bv both the Congress and the public. Below 1 debar thepl'~l)lcms. .

,;ll

HISTORY OF

rr.n. 12533

H. R. 125:3:>, is the outgrowth o! S. 1214. which was ,Passed ~)y th
Senate und assigned to the House Subcommittee o.n IuellananPuhlic Lands. This bill was the markup vehicle In the ~\IbAffalrs.
.con~mltte~and \\';F reported \\'ith very little discussion or particIpatIOn, h,members.
ff
Stlb;\~~l,"'nt to the suhcommitbee mark~lp, the su?rmlmlttee ~tal~ .
a) iureutlv noting the major defects of S. 1214, dra tee ':I'n en :re"II. f. n'J'J, .tl
R . '1"1;')') "IIC'! circulated
It as the markup vehicle fOI .the
ne\\
rj.,
~.
full Interior and Insular Affairs Committee. . ' .' . . .... d:\lark 1 1j1 was scheduled for 2 !.n· :>, weeks dur:ng which time I ~tl~fle
objection and numerous questIOns whlchTesult~clln an Y ' I
eh;ln~(',., being made to improve the legal protectIon" now con t.amec
in the L,j II.
" J
'd 1
bnt
To Ill" knowledge the new bIll, H.R. 1253,) an.tIc S~l s~qle
drafts were never generally circulated to the States"J\1V~1l11~b.]~l(g.es,· nnel privatenri
n ies "or eventhe.."Indiari
tru tofthees, <pub1icwe If are age.c.to,t i nIizl
The hill should have been circulated for comm~n III 1",1major revisions made and being considered,d",u')'),

..

•

.

,. .

w

ClUNY GROUPS BOUGHT ADDITIONAL Tn-IE

It should be pointed out that many groups,inc1du(}ing~~~Depll;r~ments of Interior and Justice, expressed. the nee., •.. or eitner rnajo
chani2'es or llddit.ional time to study the btll and comment.
.

For example the -Iustice Department in a letter dated May 23, 1978,
for Assistant Attorney General Patricia Wald to the committee chairman expressed numerous practical and constitutional concerns withthe language in S. 1214. While some of those problems may have been
alleviated in H.R. 125:33, I am unaware of any further review by the-Iustice Department. In that letter, discussing the House version,
Ms. Wald. raised some serious questions: (1) Whether the hill underWhite v. Califano might hold the Federal Government responsible forthe financial support of Indians even though no money had been
appropriated, (2) whether the bill might displace any existing State
court jurisdiction on Indian child welfare matters in Public Law 280
States even where tribal courts (lid not exist, and (:3) whether the billmight have the effect. of reestablishing diminished or disestablishedboundaries of Indian reservations for the limited purpose of tribal[urisdiction over Indian child placements.
In regard to (3) she wrote:
We think-Lhat such reestablishment, in oreler to avoid
potential constitutional problems, should be done in astraightforward manner after the reservations potentiallyaffected are identified and Congress has taken into accountboth the impact on the residents of the area to be affected
and any other factors Congress may deem appropriate.
To my knowledge this issue was never discussed.
The Department of Interior, in it seven-page letter dated -Iune 6,1978 from Assistant Secretary Forrest J. Gerard, raised numerous
questions about HiR. 1253:j. Among: other considerations Mr. Gerardsa~l:'
We believe that many cf the authorities granted by title IIof the bin are unnecessary because they duplicate authorities in present law, and therefore, we recommend the deletionof tit.le II.
I would point out that title II remains in the bill largely as drafted
and that it even provides payment to adoptive parents of Indian children. In addition, it provides for construction of Indian family service
facilities off of reservations regardless of the size of the tribe or theavailability of existing services and facilities.
It should be noted that many of the concerns expressed by Mr.
Gerard, who is a strong advocate of Indian, were not, in my opinion,
properly addressed.
In a memorandum dated June 19, 1978, from the Congressional
Research Service, additional points were raised which I believe shouldhave been considered more thoroughly.
Aside from the above Federal eon cerns , 1 am even more .Iistressedby objections raised by officials in my State of Montana after I forwarded it copy of the bill for review.
On -Iune 20, 1978, the following tolegram was received by the committee from Gov. Thomas L. Judge, of Montana.
It has come to mv attention that yOU have scheduled tIle
markup on H.R 12'5:18, the Indian (;hild Welfare Art. Thislegislation identifies some real problems and we are in a;;ro{'ment.with the intent of the bil!. However, there may be som-

4:5

44
ill effect. I urge you to hold hearings on the bill to allow us
time to present our concern. I am sure you want to insure thatproblems are solved without creating new ones at the sametime, Thank you very much for your consideration of thisrequest.
That message was received just 1 day before reporting the bill
and the request was not granted. I suspect the concerns of Governor
Judge would have been reflected by other States, especially Public
Law 280 States, had they been more aware oftheprovisions,
Below is a letter from the State of Montana aptorncyIorsocial nn.l
rehabilitation services. The letter is unsianed rbecaiise itwusii!'sttransmitted to me by telecopier on the day before.Lhemarkup andsubsequently sent in the form below and not receivediTlrhyoffice
until 5 days after the markup. I suggest all Memberswillwantto rend
this letter before voting on the bill.
STATE OF 11oNTANA,
SOCIAL AND REHABII,ITATlON SERVrcES,

Helena, ltfont.,JuT/,e20, J978.
, '.
Hon. RON TvIARLENEE,
Congressman from Montana, U.S. House oj Representatives,
Washington, D.O.
DEAR CONGRESS.MAN MARLENEE: In response to a request Irom
Bob Ziemer of your staff, the Office of Legal Affairs of the Montana
Department of Social and Rehabilitation Services has reviewed H. R.
12533-The Indian Child Welfare Act.
Our study of the bill has been hurried, but we can foresee numerous
problems in the delivery of social services to Montana Indian children
and families if the act is passed in its present form. For this reason weurge you to ask the Committee on Interior and Insular Affairs to
det'er further markup on the bill until affected States, and especially
Montana, can more fully comment on its consequence,s.
,Constitutional questions aside, several problems of implementation
are readily apparent from reading the bill. For example, although ~hebill requires State courts to give preference to certain homes 111 placing
Indian children based on evidence in the record, the bill does notprovide any mechanism requiring the family or the tribe to present
such evidence. Nor does it create a means by which already overburdened State courts can discover such evidence on their own.
But even more disturbinz to the Montana Department of Social find
Rehabilitation Services is b the bill's lack of clarity on the. issue of
payment for social services for Indian children and families. Section
201 (b) of title II of the bill states:
The provision or possibility of assistance under this ~ct
shall not be a basis for the denial or reduct.ioHofanyasslstance otherwise authorized under titles IV-B arid Xx:. ()fthe
Social Security Act or any other other fechirrrUY ··iissiGtcd
program.
•.......
,
This language suggests a strong possibility tha:t a State ,:~hose courts
had not exercised jurisdiction over an Indian child or family would hecalled upon to fund at least part of the social services delivered to that
'-

~-

,

",,'

..

46
NATIONAl, COUNCIL OF STA'l'iE
PUBLIC WELFARE AD~rrNISTRATORSOF THE A:UElUCAN PUBLIC WELFARE ASSOCIATION,

TVashington, D.C';, June 7, jD7S.
SOCIAL SERVICES COi\I:\IITTEE RECOMMENDATIONS 3

Indian cuia Welfare Act-I-l.H. 12533 (8. 1211,.)
1. Support objectives of proposed legislation to establish safezunrds against separation of Indian children from their parents andinappropriate foster care or adoptive placements outside the cultural
setting of the Indian child.
2. Recommend the council note that, while- many constructive
changes over the Senate-passed bill (8. 1214) have been incorporated
in the House version.There remain a significant number of provisions
whose impact on Indian families, tribal courts, State courts, andState and local child welfare services programs needsto be explored
more extensivelv than has been done.
.
a. Express concern that the bill as written mayworkugainst its
objective of achieving stability and permanency for the Indian child
whose home situation is such that temporary or permanent placement
becomes a necessity, and that the result maybe many such children
will be well served neither by the state/local pU15liechiIlLwel{ftl:o system
or by the Indian community.
. .... - ..... , .,4. Recommend that H.I\. 125:33 in its June 7vRrsioIlbe widely
disseminated for discussion among affected groups,incluclingtbomore
than 270 federally recognized governing bodies of Indian tribes, hands,
and groups, as well as to representatives of :State courts, juvenile
judges, and public and private child welfare services azencies, before"-.
being debated by the full House.
In addition, it is my understanding that a telegram was received by
the full committee just prior to markup from the National Councilof Juvenile and Family Court Judges, or a similar orgariizat.ion.iasking
for additional time for review. I did not see a copy of that communication but I was advised it exists.
I apologize for this lengthy dissent because basit.ally I agree thatsome legislation is needed to give Indian tribes greater voice ill' the'placement of Indian children, However, this biU'g,a$s'waybeyond
what is needed by authorizing a whole new layer of Indiunprograms
both on and off the reservations, payments to adoptive parents ofadopted children, a certain impact on State courts, and the possible
upsetting of boundaries for jurisdictional questions. For these andthe other reasons outlined above I urge my colleagues to defeat thisbill.
RON MARLENEE.
3

Approved by the Nntional CouncIl of State Publlc Welfare A<lminlstrntors on June i,

I!J7S,o